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Maryland Family Law Update is a review of events as they affect the practice of domestic relations in law in the state of Maryland published by The Daily Record, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202.
The laws of every jurisdiction may differ, and the facts are capable of many interpretations. The contents of this publication are not to be construed as legal advice and should not be acted upon without consulting an attorney. Letters selected for publication are subject to editing. Letters from litigants in pending cases or their representatives will not be accepted for publication until after their cases have been finally decided. Address letters and comments to Editor, Maryland Family Law Update, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202. Maryland Family Law Update and The Daily Record Company are owned by Bridgetower Media.
3 Child Advocacy: Predictive risk models: Beneficial or harmful to child welfare outcomes?
4 Cover Story: Advocates await governor’s signature on key protective order measure
6 In the News:
MD lawmakers aim to restrict divorce records from public Legislation to protect personal information from divorce proceedings received overwhelming, bipartisan support from state lawmakers, but the Maryland State Bar Association questioned whether the measure would make a difference
8 In the News:
Work group to consider ending fault-based divorce in Virginia
A provision tucked at the bottom of a bill instructs the Virginia Family Law Coalition and the Virginia State Bar Family Law Section to convene a work group “to consider whether to eliminate fault-based grounds for divorce under Title 20 of the Code of Virginia, including the feasibility of transitioning the Commonwealth to an exclusively no-fault divorce system.”
10 Monthly Memo
Premarital home remains separate despite marital contributions … SC court affirms exceptional circumstances joint custody ruling … NY appeals court affirms custody issue, but reverses $18,000 sanction … MA court limits jurisdiction over foster care challenge … Remand ordered in case where parental rights were terminated … NY appeals court reverses child custody decision, remits case to Family Court
Predictive risk models: Beneficial or harmful to child welfare outcomes?
In the ever-changing world of technology, professionals are considering how Predictive Risk Models (“PRMs”) can be applied in child welfare decision-making.
There are many decision-making points in child welfare, including hotline screening, the removal of children from family homes, quality assurance for service provision, supervision of the workforce and improving caregiver retention and recruitment that may benefit from the use of PRMs.
“Automated predictive risk models … [rely] on information already captured in case management systems. They generate real-time risk classifications that are more accurate, more consistent, and far less resource-intensive than traditional manual tools.”
PRMs systematically analyze the data entered by caseworkers and stored in the administrative record in child welfare case management systems, including details from prior reports of alleged maltreatment, investigation findings, service episodes and foster care placements.
With that longitudinal history of child maltreatment dynamics, a PRM instrument identifies patterns in historical data and estimates the likelihood that specific future events will occur.
On November 13, 2025, the President signed an Executive Order, “Fostering the Future for American Children and Families,” which mandates the expansion of the states’ use of technology, including artificial intelligence and predictive analytics, to improve caregiver matching and recruitment.
Although Maryland has made efforts to include technology in
JOAN
LITTLE
Child Advocacy
child welfare work, such as using it to connect youth in foster care to potential kin caregivers, it has not done so in a manner to include PRMs.
A few states have used PRMs as a screening tool for hotline decision making, decision making and supervision at all stages of a case, centralized intake and investigation workflow, and to support supervisory oversight of child maltreatment investigation.
In Maryland, screening a case that was newly reported to the local department of social services, for example, might provide a good starting point to apply a PRM.
A PRM may draw on the information already in the Department of Social Services’ information system and then be augmented by the newly reported information from the case being processed.
A PRM may execute a decision analysis and develop a consistent, objective recommendation for next steps, such as whether to implement an alternative response or commence a maltreatment investigation, and which could then be considered by a supervisor for action.
Caution, however, is warranted when using PRM programs; PRM’s analysis might be biased based on the question it is programmed to answer.
For example, an estimation of the likelihood of a specific child being subjected to future abuse again is different from an estimation of the likelihood that a
child welfare agency would make a removal again.
Additionally, a PRM trained on data already in the system may “learn” patterns that reflect the system’s behavior rather than the patterns that predict actual harm.
For example, in a jurisdiction where most reports of alleged abuse or neglect are not acted upon by the child welfare agency, if the PRM were to consider previous abuse or neglect reports to calculate the probability of future harm to a child, the resulting recommendation might not predict a likelihood of harm.
Finally, a PRM, trained on historical data in a child welfare system, is unlikely to distinguish those actions taken by the child welfare agency that represent disparate practices.
Indigenous or Black women and children and those experiencing poverty are disproportionately subject to the scrutiny of child welfare systems.
Given these disparities, using historical data as a basis for analysis will only reinforce the disparities.
To address possible disparities, PRMs must be validated “against outcomes that are not solely derived from child welfare processes, such as hospitalizations for injuries and other objective indicators of serious harm.”
Clearly, a PRM tool cannot and should not replace the subtleties of decision-making that experienced child welfare staff utilize on a daily basis, but, such a tool, incorporated in a meaningful, may supplement that decision-making.
Joan Little is a Chief Attorney at Maryland Legal Aid.
Advocates await governor’s signature on key protective order measure
By Hope Keller Special to The Daily Record
Advocates for victims of domestic violence had a primary legislative goal this year: Passing a measure to increase the period between temporary and final protective order hearings from seven to 14 days, the better to give parties more time to engage legal counsel and collect evidence.
The bill was passed by both houses of the General Assembly in the session that ended last month. But as of May 18, when this publication went to press, Gov. Wes Moore had not signed the bill. His office said Moore was still reviewing legislation that had reached his desk. Moore has until June 2 to sign, veto or allow bills to become law without his signature.
Advocates stressed the importance of legal counsel for petitioners in domestic violence cases.
“It really makes a difference to have an attorney by your side (who) can take on the legal argument and the presentation of evidence to make sure that the client’s story is heard in a way that the judges and the courts can take action on,” said Amee Vora, director of advocacy for family law at Maryland Legal Aid, which provides free civil legal services to financially eligible individuals. “What we have seen is that seven days is just not enough time for a survivor of domestic violence to adequately prepare themselves for everything that trial requires.”
Data from Maryland’s Administrative Office of the Courts show that, in most protective order cases, one or both parties are unrepresented by counsel.
Hearings representation by case type summary
The Hearing Representation report provides a summary and percentage of based on respondent and petitioner representation during the hearing. Since the temporary order hearings do not typically include a respondent, only the final order hearings are included. Hearing outcome is not factored in, so all final order hearings are included regardless of the outcome (granted, dismissed, denied, rescinded). Grounds
Last month, 1,910 final protective order hearings were held statewide. In just 9.4% of them were both parties represented by attorneys. Petitioners were represented in 20.4% of the hearings, while respondents were represented in 16.1% of them.
A provision of the bill that would have allowed a petitioner to be reimbursed for certain expenses incurred by the respondent’s actions was removed during the legislative session. Laure Ruth, public policy director at the Maryland Network Against Domestic Vio-
lence, or MNADV, said her organization planned to pursue the matter next year.
“I think there was confusion about what it entailed,” Ruth said, explaining that some legislators worried the provision was too broad and could include things like years’ worth of psychiatric counseling bills.
“That was not at all the intent or the language,” she said. “Generally, in the context of testifying about the abuse, the petitioner is going to say something like, ‘And then he took my phone and threw it against the wall, and the phone is broken
and I had to replace it.’ And so the only additional evidence that’s really needed is how much did it cost to replace it?”
If the bill becomes law, the protective order measure will take effect Oct. 1.
Looking ahead
Two other key domestic violence bills did not pass.
The goal of the Family and Law Enforcement Protection Act was to require domestic violence respondents to relinquish their guns earlier in the legal process, as well as to standardize policies and follow-through across Maryland jurisdictions to make sure gun surrenders do in fact occur.
Opposition by gun rights advocates helped doom the bill, Ruth said.
“It would have required the removal of guns at the temporary protective order hearing, and gun proponents don’t want guns removed (for a longer period),” she said.
MNADV advocates plan to take up the measure again next year, Ruth said, but she noted that the makeup of the General Assembly would be different in the 2027 session.
“There’s an election, there are people retiring, moving on, and it’s going to depend on the makeup, probably, of the Judicial Proceedings Committee about whether they will give (the bill) a second look and think about it a little more clearly,” she said. “It is a bill about guns, but it’s also a bill about safety for victims, and I think in Annapolis sometimes they don’t look at it that way.”
The second key domestic violence bill that failed involved coerced debt, or debt incurred by an abuser in a domestic partner’s name. Ruth said studies have shown that nearly 75% of domestic violence survivors report having coerced debt, which often traps them in abusive relationships.
Ruth said she and her partner at Economic Action Maryland planned to reintroduce the bill early in the next session.
SUBMITTED PHOTO
Amee Vora is director of advocacy for family law at Maryland Legal Aid, which provides free civil legal services to financially eligible individuals.
In the News
MD lawmakers aim to restrict divorce records from public
By HannaH GasKill HGaskill@TheDailyRecord.com
Legislation to protect personal information from divorce proceedings received overwhelming, bipartisan support from state lawmakers, but the Maryland State Bar Association questioned whether the measure would make a difference.
The Maryland General Assembly passed legislation this past session to alter the Maryland Public Information Act to restrict the inspection of records from divorce proceedings by members of the public.
“Divorce creates uniquely comprehensive records of at least two people’s lives: Their finances, their routines, their relationships with family and friends,” Sen. Charles E. Sydnor III, D-Baltimore County, said as he presented the bill before the Senate Judicial Proceedings Committee during a February hearing in Annapolis. “The public expectation of transparency should not extend to all vulnerable details available under the current law.”
Sponsored in the Senate by Sydnor and in the House by Dels. Karen Simpson and Kris Fair, both Frederick Democrats, the bill would require the denial of public records requests for divorce applications, financial and settlement records and custody orders.
Although the bill received unanimous, bipartisan support in both chambers, the state bar association provided opposition testimony, noting that the Public Information Act isn’t necessary to obtain divorce records.
“You can go to any county clerk’s office, and you can obtain them by
using a computer that is located in the court’s office,” said Michelle Smith, a member of the bar’s Family Law Section Council. “What you can’t obtain … is restricted information,” including data regarding children’s names, dates of birth and financial information already barred from public access by the courts.
Although it protects most records in divorce proceedings, the legislation would not exempt final decrees if signed into law by Gov. Wes Moore, Senate President Bill Ferguson and House Speaker Joseline Peña-Melnyk, all Democrats. Additionally, it would require records custodians to allow for the inspections of protected records if the requestor is a party of those proceedings or their attorney, or if the requesting individual has been authorized to inspect the records by court order.
“A stalker can learn of their victims’ phone numbers, email addresses, home addresses and identifying information ...” Sydnor said. “This lack of privacy protections poses a significant financial, emotional and personal risk to the public.”
Parties in divorce proceedings can request that their records be sealed, but Simpson said many people don’t know that is an option.
As she presented it to the House Government, Labor and Elections Committee, Simpson said the bill was “constituent-requested.” Sitting next to her was Rae Gallagher, a member of the Frederick County Board of Education who was allegedly harassed through information obtained in her divorce records.
Gallagher served as the pres -
ident of the board in 2025. During that time, she said a local individual “who was well-known for harassing public officials” began attending meetings that she presided over. Gallagher had a sheriff’s deputy remove him several times because of his vulgar language and threats.
“He posted various content on social media that directly targeted me, which led to me receiving incredibly nasty and vulgar messages, including direct death threats that were investigated by our local sheriff and sheriff[s] in other states,” Gallagher said.
While she was experiencing this, Gallagher filed for divorce.
She said that after her divorce was finalized, the man who had targeted her went to the courthouse and requested a copy of the full records, which he received — save for financial and custody agreements. Upon their receipt, he published Gallagher’s ex-husband’s phone number online, encouraging people who followed him to call. He also sent a full copy of the records to elected county and Board of Education officials in Washington and Frederick counties, and posted details of the final agreement online, saying that he would email a copy to anyone who reached out to him.
“The worst part of this is that my minor children’s information was included in those records,” Gallagher said. “The process of filing for divorce is incredibly painful, and I don’t believe anybody outside of those parties who are directly related should have any access to these divorce records unless there is a specific reason for them to do so.”
Work group to consider ending fault-based divorce in Virginia
RICHMOND, VA -- Virginia House Bill 303, patroned by Del. Rip Sullivan, D-Fairfax County, and signed by Gov. Abigail Spanberger on April 13, included notable changes for family law practitioners, including changes to Va. Code § 20-95 to permit immediate filing of a bed and board divorce upon separation.
But a provision tucked at the bottom of the bill instructs the Virginia Family Law Coalition and the Virginia State Bar Family Law Section to convene a work group “to consider whether to eliminate fault-based grounds for divorce under Title 20 of the Code of Virginia, including the feasibility of transitioning the Commonwealth to an exclusively no-fault divorce system.”
The work group will be comprised of members from the Virginia Poverty Law Center, a Virginia-based domestic violence advocacy organization, the Virginia Department of Social Services, a Virginia law school faculty member with family law expertise, appointed members of the General Assembly and “other relevant stakeholders.”
The legislature has asked the work group to return its findings on faultbased divorce and other related topics by Dec. 1.
Fairfax family law attorney Daniel Gray of Cooper Ginsberg Gray said, “the remit is pretty extraordinary” in regard to the work group. He noted that the bill asks the work group to submit recommendations on reconsideration of fault behaviors as a factor in property division and the setting of spousal support.
“If the legislature were to eliminate fault behaviors as a factor in division of property or in setting support, it would
constitute a sea change in divorce litigation,” Gray said. “In my opinion, it would be the biggest change to the practice since the adoption of equitable distribution.”
Julie Gerock, a partner at Maddox & Gerock in Falls Church, said that careful consideration must be taken in looking to eliminate fault-based divorce, including considering other code provisions.
“I think what we need to focus in on is that if we get rid of fault as a ground for divorce, that it’s just for the purposes of filing for the divorce,” Gerock said. “It’s not necessarily limiting how it gets used when it’s appropriate to use it, with respect to asset division or spousal support.”
Virginia Beach attorney Richard E. Garriott Jr. chairs the Virginia Family Law Coalition. In an email to Virginia Lawyers Weekly, he said the study group is currently being formed.
“I do believe that we are at a point of transition to move Virginia toward a no-fault divorce state,” Garriott said.
Work group
Brian Hirsch, a past chair of the VSB Family Law Section and partner at Hirsch & Ehlenberger in Reston, said he has been following HB 303 “with great interest.”
“Fault-based divorce can feel like a relic of the past rather than a reflection of modern times,” Hirsch said. “In practice, there are many ways a spouse can harm or undermine a marriage that falls outside Virginia’s narrow legal grounds for fault.”
The “narrow legal grounds” referenced by Hirsch are the qualifying fault-based grounds for divorce in Virginia. Those grounds include adultery, cruelty, desertion or abandonment, and a spouse’s felony conviction.
Depositphotos
A recent bill signed in Virginia established a work group to examine ending fault-based divorce in the state.
Gray said that because of recent decisions in the Supreme Court of Virginia and the Court of Appeals of Virginia, lawyers may feel incentivized to bring these matters to litigation.
“Most lawyers feel compelled to litigate fault behaviors — even if they don’t file on fault grounds — because such behaviors can be specifically considered by the court when dividing property or assessing support,” Gray said.
Hirsch noted that in his experience, parties often pursue fault-based claims “less for legal necessity and more to assign blame, seek validation or ease the emotional impact of the breakdown.
“In many cases, this yields little practical benefit, as the other spouse can present evidence supporting a no-fault divorce, leaving the court to decide on which ground to grant the divorce,” Hirsch said.
In addition to being asked whether to eliminate all fault-based divorce grounds in Virginia, the legislature has asked the work group to consider whether to “modify or eliminate mandatory separation periods currently required under Virginia law as a precondition to no-fault divorce,” a request that was noteworthy to Gray.
“Many jurisdictions, such as Maryland, have eliminated or substantially shortened the waiting period required for spouses to file for divorce,” Gray said. “This would also constitute a very significant change in the practice of Virginia divorce law as it currently exists.”
When seeking fault-based divorce, Gerock noted, parties can file for divorce immediately upon separation. That differs from a no-fault divorce under Virginia’s current system, where a couple has a one-year separation requirement before divorce can be filed.
“Under our current system, a faultbased divorce has more remedies available to the spouses than a couple who has experienced irreconcilable differences,” Gerock said.
That means that in cases of no-
fault divorce, Gerock noted, families often seek relief from juvenile and domestic relations courts, courts not of record, then have to litigate similar issues in the circuit court that handles the divorce.
“So, you have two families, and the only difference between them is one has fault in the breakdown of the marriage and one doesn’t, but how they access the courts are very different,” Gerock said. “And often, when there isn’t fault, they’re in a situation where they’re having to litigate at least part of their cases twice because they start in the juvenile court, not a court of record.”
The work group has been further instructed to evaluate the extent fault should be considered in equitable distribution of marital property, protections for domestic violence survivors in no-fault proceedings, access to justice considerations and review of comparable no-fault divorce statutes in other states.
The result is a sweeping request for a work group that is still being assembled to complete in the next six months.
“A study deadline of Dec. 1, 2026, is very ambitious for a project of this size and import,” Gray said.
Garriott echoed the sentiment.
“Although we have a December deadline, given the scope of the study, I am not sure we will be able to complete a full study prior to that date,” Garriott said.
Other changes
Apart from commissioning the work group, HB 303 contains changes to Virginia divorce law that family law practitioners found noteworthy.
Among them is an amendment to Va. Code § 20-91, rephrasing a portion of the code to permit a divorce from bond of matrimony “for adultery that occurred prior to the date of the last separation of the parties.”
The current law does not specify the adultery had to occur prior to the parties’ separation. Gerock recalled
serving as counsel on a case where a party was barred from spousal support solely due to a post-separation affair.
“I don’t like adultery being used as a financial weapon necessarily, and what I mean by that is along the lines of adultery being a bar to spousal support,” Gerock said. “I think that’s very archaic, and frankly paternalistic, and has typically been utilized and weaponized against women.”
Gray said the change is important to consider for attorneys who find themselves in similar cases, where the present statute creates the technicality that a post-separation adultery can bar alimony.
“With this new change, support recipients can pursue relationships after separation and before divorce with less concern about the impact on an alimony award,” Gray said.
The bill also amends Va. Code § 20-95 to permit immediate filing of a bed and board divorce upon separation, which Gray noted would grant immediate access to circuit courts and pendente lite motions relief upon separation.
“It is a powerful new tool for lawyers looking to get into the circuit court with no waiting period,” Gray said.
That ability to file upon separation “is a big change in the law,” Gerock said.
“The takeaway is that it puts all spouses and marriages in which there’s been a separation on equal footing,” she noted. “I think that’s really important for families, particularly if a spouse is really worried about assets disappearing or if tensions are high in the home, but it doesn’t rise to the level of fault.”
“If the legislature were to eliminate fault behaviors as a factor in division of property or in setting support, it would constitute a sea change in divorce litigation. In my opinion, it would be the biggest change to the practice since the adoption of equitable distribution.”
Monthly Memo In the
Premarital home remains separate despite marital contributions
RALEIGH, NC — The North Carolina Court of Appeals reversed an equitable distribution order after concluding that the trial court misclassified a premarital residence and inadequately valued a marital business.
The dispute arose in a divorce proceeding involving a home the defendant acquired before the marriage and a business owned during the marriage. The trial court awarded the residence to the plaintiff and assigned a value to the business for distribution purposes. The court held that both rulings rested on legal errors that required reversal.
The home remained the defendant’s separate property because it was acquired before the marriage and no interest was conveyed to the plaintiff. Although marital contributions, including mortgage payments during the marriage, may create a marital interest in the equity, they do not convert the underlying separate asset into marital property. The trial court therefore erred by awarding the entire property to the plaintiff without first distinguishing the separate property interest from any marital component. On remand, the trial court must make specific findings about the source of payments and whether any appreciation was active or passive.
COLUMBIA, SC — The family court properly applied statutory best-interest factors and identified sufficient exceptional circumstances to justify shared custody despite parental conflict.
We affirmed a joint custody award.
An action arose following the parties’ divorce, during which both parents sought sole custody and raised concerns about each other’s parenting. The record reflected mutual allegations, including the father’s alleged drinking and supervision issues and the mother’s alleged exclusion of the father from decision-making and po-
tential alienation of the children.
BridgeTower Media Newswires
NY appeals court affirms custody issue, but reverses $18,000 sanction
ROCHESTER, NY — A state appeals court has reversed a Monroe County Family Court judge’s decision in a child custody case to find the mother in contempt, fine her $250 and impose an $18,000 sanction.
Tamra J. Werner and Kraig H. Kenney are the parents of a child born in 2009. They initially agreed to joint custody of the child, but they both moved to modify the custody agreement.
Kenney was awarded sole custody, and the Fourth Department affirmed that order.
In the following years, Werner filed numerous petitions to modify the custody agreement, and they were all denied without a hearing.
BridgeTower Media Newswires
MA court limits jurisdiction over foster care challenge
BOSTON, MA — A plaintiff whose three grandchildren were placed elsewhere could seek declaratory relief but not injunctive relief in Superior Court, the Supreme Judicial Court has decided.
After initially placing the plaintiff’s three grandchildren into her foster care, the Department of Children and Families notified the plaintiff that it would be placing the children into a new home.
The plaintiff challenged that decision pursuant to DCF’s administrative fair hearing process, but the children were removed during the process. The hearing officer subsequently rendered a final determination in the plaintiff’s favor.
BridgeTower Media Newswires
Remand ordered in case where parental rights were terminated
DETROIT, MI — Where a respondent whose parental rights were terminated has argued on appeal that her due process rights were violated when the
trial court held her termination of parental rights proceeding in her absence, a remand must be ordered because the record is insufficiently developed as to why the respondent was absent.
“Respondent appeals as of right the order terminating her parental rights to her minor child TV under MCL 712A.19b(3)(i), (j), and (k)(i). On appeal, respondent argues that her due process rights were violated when the trial court held her termination of parental rights proceeding in her absence. We vacate the termination order and remand for the reasons stated in this opinion. …
“Respondent argues the trial court violated her due process rights by proceeding with the termination hearing in her absence. Because the record is insufficiently developed as to why respondent was absent, we cannot undertake an informed analysis of this issue and therefore vacate the trial court’s termination order and remand for further proceedings.”
BridgeTower Media Newswires
NY appeals court reverses child custody decision, remits case to Family Court
ROCHESTER, NY — A state appeals court has sent a case back to the lower court for a hearing on possible changes to a child visitation order.
The mother, Krista H. Hoover, filed an Article 6 petition in Ontario County Family Court seeking to modify a visitation order that granted both parties joint custody of their two children, with primary placement of the children with the father, Patrick W. Ester.
The consent order also provided Hoover with supervised agency visitation, once per month, subject to availability and the wishes and schedules of the children.
Hoover also would have “further supervised visitation as agreed and arranged between the parties,” according to the order.
In January 2025. Ontario County Family Court Frederick G. Reed dismissed the petition and Hoover appealed.
The Appellate Court vacated the Prince George’s County Circuit Court’s distribution of the parties’ marital assets. The court erred (1) by conducting property-by-property monetary award analyses rather than following the mandatory three-step process, (2) in its valuation of the couple’s business and by transferring ownership of the business’s equipment and (3) by transferring ownership of the bank accounts.
The Appellate Court affirmed the Montgomery County Circuit Court’s conclusion that the personal representative of the decedent’s estate did not breach her fiduciary duties owed to her brother and nephew. Although she failed to provide an accounting to her brother, the breach was remedied by discovery. And while she failed to remit tuition payments to her nephew, he was not otherwise entitled as a beneficiary of the trust.
The Appellate Court vacated the Prince George’s County Circuit Court’s monetary award of $325,450 and an attorney’s fee award of $20,000 to wife. The circuit court should not have counted husband’s Discover
Bank accounts as marital property; did not classify real properties explicitly as marital, nonmarital or partly marital and partly nonmarital and its valuation of the marital portion of the properties’ equity values derived from miscalculations. Because the monetary award was vacated, the attorney’s fee award was also vacated.
DAVID ROBERT RUMMEL JR. V. VICTORIA RUMMEL Alimony; residence
The Appellate Court reversed the Baltimore County Court’s finding that a member of the opposite sex was not “residing” in wife’s residence for more than 300 out of 365 days, thus terminating husband’s alimony obligation. It rejected the contention that the individual “resides” with wife only when he spends that night at her house. Instead it found that he “resides” at the house because he receives his mail there; his car is registered, insured and parked there; his driver’s license says he lives there and the Maryland court system would have sent notices to him during his divorce proceeding there.
DAVID CHRISTOPHER LEONE V. STACY LEONE Recusal; mistrial; abuse of discretion
The Appellate Court held the Wicomico County Circuit Court abused its discretion in denying father’s motion for a mistrial. The second judge who issued the decision, who was appointed after the first judge recused herself following the trial, concluded that he could “properly” decide the issues by reviewing the court file, pleadings, exhibits, transcripts, audio recordings and written closing arguments. But the factual findings required to decide the contested issues could have been made only by assessing the witnesses’ credibility based on seeing and hearing their testimony.
The Appellate Court affirmed the Harford County Circuit Court’s award of joint legal custody with tie-breaking authority to father. Although mother claims the trial court’s factual findings were clearly erroneous, because they were based upon bias or unsubstantiated factual findings, the trial court had valid reasons for awarding tie-breaking authority to father that serve the child’s best interest in coming to “some decision . . . when the parents cannot agree.”
The Appellate Court affirmed the Montgomery County Circuit Court’s change from father to mother regarding tie-breaking authority for decisions on medical and dental issues, education, extracurricular activities, behavioral health and behavioral health prescriptions. Although father avers that he was not given proper notice that modification of legal custody was at issue, mother’s general prayer for relief was a sufficient basis for the court to address the issue of tie-breaking authority as part of the best interest analysis.
STEVEN RICHARDS V. JOAN RICHARDS Civil contempt; right to counsel; waiver
The Appellate Court reversed the Baltimore County Circuit
Court’s order adjudicating father in constructive civil contempt and sentencing him to 90 days’ incarceration unless he paid $4,505 to mother on or before Oct. 2, 2025. The circuit court failed to ensure that father was aware of his right to counsel and had voluntarily waived that right at a proceeding in which he could be sentenced to incarceration.
SHIVANI BAJAJ V. RUEBEN BAJAJ
Indefinite alimony; disparity; standard of living
No. 1180, September Term 2025
Argued before: Wells, C.J., Reed, Wilson (specially assigned), JJ.
Opinion by: Wells, C.J.
Filed: March 5, 2026
The Appellate Court affirmed the Montgomery County Circuit Court’s award of indefinite alimony to wife in the amount of $13,500 per month. The circuit court conducted a thorough and detailed analysis of the statutory factors set forth in Maryland Code, Family Law Article § 11106(b) before arriving to its alimony determination. The court properly found wife was entitled to indefinite alimony based on the unconscionable disparity between the parties’ respective standards of living.
JERMAINE C. TYLER V. NATASHA CHARISSE HEWLETT
Child support; arrearages; health insurance expenses
The Appellate Court affirmed the Montgomery County Circuit Court’s recalculation of father’s monthly child support and arrearages, after accounting for each parent’s health insurance expenses.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Prince George’s County Circuit Court’s distribution of the parties’ marital assets. The court erred (1) by conducting property-by-property monetary award analyses rather than following the mandatory three-step process, (2) in its valuation of the couple’s business and by transferring ownership of the business’s equipment and (3) by transferring ownership of the bank accounts.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
down in 2021, following a physical altercation that resulted in Husband’s arrest and incarceration.
This case arises from divorce proceedings between appellant, Donna Daniel (“Wife”), and appellee, Roger Daniel (“Husband”), in the Circuit Court for Prince George’s County. Following a June 2023 divorce trial, in April 2024, the court entered an Amended Judgment of Absolute Divorce distributing the parties’ marital assets. Wife timely noted an appeal, in which she specifically challenges the court’s disposition of the parties’ former residence located in District Heights, Maryland (“Home”); the parties’ Joint Investment Account; the family business, Howard Video Productions, LLC (“Howard Video”); and the payment schedule for the monetary awards.
QUESTIONS PRESENTED
Wife presents seven questions for our review, which we have recast into two and rephrased as follows:1
1. Did the circuit court err in granting multiple monetary awards to Husband?
2. Did the circuit court err in establishing the method and timing of payment of the monetary awards?
For the reasons set forth below, we vacate the circuit court’s judgment and remand for further proceedings not inconsistent with this opinion.
BACKGROUND
The Parties’ Marriage and the Home
Husband and Wife were married in February 2001. The parties had one child together in 2011. Their marriage broke
Upon marrying, Wife moved into the Home with Husband. The parties resided in the Home throughout the marriage. Originally, Husband acquired the Home with his ex-wife2 on October 10, 1985, as part of a “rent with option to purchase [arrangement]” in which “a large percent of [Husband’s] rent went toward[] the purchase of the [Home].” Husband testified at the merits hearing that the deed to the Home had been transferred to him and his ex-wife in 1995, and that he had “fully purchased” the Home by 1999—two years before the parties’ marriage. On December 12, 1989, Husband and his ex-wife executed a Deed of Trust3 which was not paid off until 2005—four years into the parties’ marriage. Wife’s counsel stated at the merits hearing that there was also a “second mortgage” on the Home, which was paid off in 2011 or 2012. Neither party presented mortgage payment documentation to the court. Wife did, however, present Husband’s 2002 bankruptcy petition, which included information regarding a “secured claim” of $164,016.36 on “Debtor’s residence located at [the Home’s address].”
Husband personally renovated the Home, installing electrical and plumbing systems, floors, drywall, and fixtures. Wife also testified that she made significant investments into the Home, including maintaining the Home and paying for property taxes and home insurance. Between 2021 and 2022, after a flood, Wife spent substantial sums—according to her real property appraiser’s testimony, close to $100,000—to repair flood damage, correct dangerous electrical issues, and redesign multiple rooms in the Home. Wife’s appraiser also testified that these improvements increased the Home’s property value by approximately $50,000.4
Howard Video
In 2001, the parties founded Howard Video, a government contracting business providing video production services. The business obtained 8(a) certification5 in 2013, which allowed it to secure government contracts without participating in a competitive bidding process. During the marriage, Howard Video grew substantially, securing multimillion-dollar contracts with numerous federal agencies. In 2018, Husband changed Howard Video’s ownership structure, giving Wife 95 percent ownership and retaining five percent for himself, for the purpose of qualifying Howard Video for additional federal certifications as a minority and woman-owned business. These certifications increased opportunities for federal contracting work. After Husband’s arrest and incarceration in
2021, Wife assumed full operational control of Howard Video and terminated Husband’s employment. Husband received no distributions stemming from his five percent ownership of Howard Video from December 2020 through the trial. Neither party provided an expert witness to value the business. Husband filed Howard Video’s 2021 Balance Sheet (“2021 Balance Sheet”) and called Howard Video’s certified public accountant (“CPA”) as a witness. The CPA did not provide a valuation for the business; instead, he affirmed that he had prepared the 2021 Balance Sheet and verified as accurate the values provided in the document. According to the CPA, the 2021 Balance Sheet indicated that Howard Video had $2,019,725.03 in contracts. Wife testified that, at the time of trial, Howard Video only had one contract worth “about $224,000[.]”
The Joint Investment Account
At trial, Wife testified that, in 2019, she received approximately $183,000 from the sale of her family’s property in the Philippines, which was divided among Wife and her siblings. Wife further testified that her sister wired these funds into one of the parties’ joint bank accounts. Thereafter, pursuant to advice from their financial advisor, the parties deposited $150,000 from this joint account into a jointly-titled investment account (“Joint Investment Account”), which appreciated to approximately $263,310 in value by the time of the 2023 divorce trial.
Procedural History
Husband filed for absolute divorce on July 28, 2022. Wife counterclaimed for divorce on December 29, 2022. The circuit court conducted a trial on the merits in July 2023 and announced that it would grant an absolute divorce on the grounds of cruelty.6 Nearly six months later, on January 23, 2024, the court issued oral rulings on the marital property. The court subsequently entered an Amended Judgment of Absolute Divorce on April 2, 2024,7 in which it made the following relevant determinations:
Regarding the Home, the court found that it was Husband’s non-marital property “because it was purchased prior to the parties’ marriage and [Wife] is not entitled to it.” The court further found that Wife “failed to present any evidence that her direct contribution [led] to the appreciation in the value of [the H]ome.” Considering the “best interest of the minor child,” with whom Wife was residing at the Home and would need to relocate to a new residence, the court granted Wife exclusive use and possession of the Home for a six-month period beginning on February 1, 2024.
Regarding the Joint Investment Account, the court determined in its oral ruling that Wife did not present “any credible evidence regarding the alleged nonmarital portion of the account . . . nor regarding the source of funds.” In the Amended Judgment of Absolute Divorce, however, the court determined that Wife “had the burden of directly tracing her alleged non-marital contribution to this account to a nonmarital source” but that “Wife failed to present any evidence to prove her burden.” The court found the Joint Investment Account to be marital property valued at $263,310, and ordered it divided equally.
As to Howard Video, the court found the business was marital property because it was “opened during the marriage.”8 Based upon the 2021 Balance Sheet, the court determined the value of Howard Video to be $582,668.02. This 2021 Balance Sheet value included $423,187 in equipment and furniture. Despite finding that Wife owned 95 percent of the business, the court granted Husband a monetary award of $220,000 from the value of Howard Video, allowing Wife to retain sole ownership of the business and its assets.
Finally, the circuit court disposed of eight bank accounts: six titled in Wife’s name, totaling $347,156.72; one titled in Husband’s name, totaling $8,742; and one titled jointly, totaling $23. After identifying who had title to each account, the court ordered that four of the six accounts titled solely in Wife’s name “be divided 50/50 between the parties[,]” and that Wife transfer funds to Husband directly from each account. The court also ordered that Wife transfer to Husband $60,000 from the fifth account titled solely in Wife’s name.9 Similarly, the court ordered that the one account titled in Husband’s name “be divided 50/50 between the parties[,]” and ordered that Husband transfer funds to Wife from this account. Finally, the court ordered the parties’ joint account to “be divided 50/50[,]” and that Wife “transfer to [Husband] the sum of $11.50 and [] close the account.”
In the corresponding schedule, the court ordered that “within 30 days from February 1, 2024, [Wife] shall pay” Husband $112,479.19 from those bank accounts and a $220,000 monetary award for Howard Video in certified funds.
Wife timely appealed. We supplement with additional facts as necessary in the discussion.
STANDARD OF REVIEW
Whether property is marital for purposes of determining a monetary award in a divorce case, and, if so, its value, are both questions of fact, which this Court reviews for clear error. Md. Rule 8-131(c); Sims v. Sims, 266 Md. App. 337, 35354 (2025) (citing Flanagan v. Flanagan, 181 Md. App. 492, 521 (2008)). “If there is any competent evidence to support the factual findings [of the trial court], those findings cannot be held to be clearly erroneous.” Goicochea v. Goicochea, 256 Md. App. 329, 340 (2022) (internal marks and quotations omitted).
“[W]e review the circuit court’s legal conclusions de novo.” Sims, 266 Md. App. at 354 (citing Flanagan, 181 Md. App. at 521 (citation omitted)). “[I]f 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.” Matter of Becker, 265 Md. App. 301, 309 (2025) (quotation omitted). An error may be harmless when it does not impact the outcome of the challenged proceeding. Barksdale v. Wilkowsky, 419 Md. 649, 662-63 (2011) (citations omitted).
The ultimate decision of whether to grant a monetary award, and the amount of any such award, is reviewed for abuse of discretion. Alston v. Alston, 331 Md. 496, 504 (1993). An abuse of discretion may occur “when no reasonable person would take the view adopted by the trial court or when the court acts without reference to any guiding rules
or principles.” Santo v. Santo, 448 Md. 620, 625-26 (2016) (internal marks and citation omitted). In undertaking such review, “‘we may not substitute our judgment for that of the fact finder, even if we might have reached a different result.’” Sims, 266 Md. App. at 354 (quoting Flanagan, 181 Md. App. at 521) (further citation omitted). “[E]ven with respect to a discretionary matter, a trial court must exercise its discretion in accordance with correct legal principles.” Lamone v. Schlakman, 451 Md. 468, 479 (2017) (quotation omitted).
THE MANDATORY THREE-STEP PROCESS
“When a party requests a monetary award, a trial court must complete a three-step process before determining whether to grant such an award.” Wasyluszko v. Wasyluszko, 250 Md. App. 263, 279 (2021); see Reichert v. Hornbeck, 210 Md. App. 282, 361 (2013) (“When a party petitions for a monetary award, the trial court must follow a three-step procedure.”) (quoting Malin v. Mininberg, 153 Md. App. 358, 428 (2003)). We have described this mandatory process as follows: First, for each disputed item of property, the court must determine whether it is marital or non[-]marital. Second, the court must determine the value of all marital property. . . . Third, the court must decide if the division of marital property according to title will be unfair; if so, the court may make a monetary award to rectify any inequity . . . [Md. Code FL § 8-205(a)].
Reichert, 210 Md. App. at 361 (emphases added) (quoting Innerbichler v. Innerbichler, 132 Md. App. 207, 228 (2000)). The court may “decide whether to grant a [single] monetary award” only after it “determine[s] the value of all marital property.” Brewer v. Brewer, 156 Md. App. 77, 106 (2004) (emphasis added). “Only those marital assets which have been sufficiently identified and valued can be considered in any court award.” Pickett, Houlon & Berman v. Haislip, 73 Md. App. 89, 98 (1987) (citation omitted).
We explore each step in turn before turning to our analysis.
A. Step One: Identification of Property as Marital or Non-Marital
Under Maryland law, “marital property” is defined as “the property, however titled, acquired by 1 or both parties during the marriage.” Md. Code (1984, 2019 Repl. Vol.), Fam. Law (“FL”) § 8-201(e)(1) (emphasis added). “Acquired” in this context refers to “the ongoing process of making payment for property.” Gravenstine v. Gravenstine, 58 Md. App. 158, 169 (1984) (citing Harper v. Harper, 294 Md. 54, 80 (1982)).
Excluded from “marital property” is any property acquired before the marriage or as an inheritance or a gift from a third party, property that has been excluded by a valid agreement, or property that is directly traceable to any of these sources. FL § 8-201(e)(3)(i)–(iv).
As indicated by the plain language of FL § 8-201(e), Maryland follows the source of funds doctrine, which provides that “[w]hether property is marital or non-marital depends upon the source of each contribution as payments are made to acquire the property.” Melrod v. Melrod, 83 Md. App. 180, 185 (1990) (citing Harper, 294 Md. at 80). Thus, non-marital property may become marital property by virtue
of mortgage payments made during the marriage because, “to the extent that such payments reduced the balance due on the mortgage, property was acquired during the marriage.” Kline v. Kline, 85 Md. App. 28, 41 (1990). See also Gravenstine, 58 Md. App. at 168 (“Where property is purchased and paid for in part before marriage and in part during marriage with nonmarital and marital funds, the property is nonmarital in part and marital in part.”).
When one partner in a marital unit contributes funds or efforts to enhance the value of non-marital property, the partner is entitled to “a share of the enhanced value of the property attributable to the expenditure of [marital] funds and efforts,[and] . . . additionally to [a] share in the increased value attributable to the normal appreciation of the property.” Bangs v. Bangs, 59 Md. App. 350, 364 (1984) (quoting Harper, 294 Md. at 69-70). In assessing a party’s efforts to enhance the value of non-marital property, the court “should . . . determine[] whether [the party’s] efforts actively appreciated[10] the value through the expenditure of funds for maintenance and/or development.” Merriken v. Merriken, 87 Md. App. 522, 536 (1991) (emphasis added). A trial court cannot engage in speculation as to whether any of the increase in value to non-marital property was the direct result of the marital unit’s efforts. See Dave v. Steinmuller, 157 Md. App. 653, 668-69 (holding that trial court properly excluded increase in value of wife’s non-marital property where husband’s expert “was unable to identify what portion of the appreciation, if any, was attributable to [husband]’s efforts as opposed to other recognizable market or economic forces”).
In short, “the property and the marital residence are marital in the ratio that the marital investment in the property and the residence bears to the total nonmarital and marital investment in the property.” Bangs, 59 Md. App. at 364 (citing Harper, 294 Md. at 81-82). “[T]he [circuit court] must determine the total nonmarital and marital investment as only the marital property is subject to equitable distribution.” Heger v. Heger, 184 Md. App. 83, 109 (2009) (quoting Gravenstine, 58 Md. App. at 169).
1. Burden of Proof for Property Acquired Before Marriage
“[T]he party who asserts a marital interest in property bears the burden of producing evidence as to identity of the property.” Innerbichler, 132 Md. App. at 227 (citations omitted); see also Blake v. Blake, 81 Md. App. 712, 720 (1990) (noting that the trial court’s responsibility to determine the value of marital property “does not carry the burden of producing such evidence[,]” which instead lies with the party seeking the marital award).
The party asserting a marital interest in non-marital property must show that marital funds were used to increase the value of the non-marital property. See Golden v. Golden, 116 Md. App. 116 Md. App. 190, 203, 205 (1997) (“Generally, the burden of proving a fact is on the party bearing the affirmative of the issue.”). Absent any “evidence tending to show that the asset in question was partly marital,” there is no error “in refusing to designate that property as marital.” Melrod, 83 Md. App. at 194; see also Newborn v. Newborn,
133 Md. App. 64, 95-96 (2000) (noting that evidence “showing what portion of the property . . . was marital” is “necessary [for the court] to apply the [three-step] analytical approach” in the statute).
2. Burden of Proof for Property Acquired During Marriage
“[T]he party asserting a marital property interest in specific property has the burden of producing evidence as to the identity and value of that property.” Pickett, 73 Md. App. at 97 (citation omitted). Once that party makes out a prima facie case, the burden of producing evidence to refute those claims shifts to the other party.” Id. at 103 (citation omitted). “Property acquired by purchase during the marriage and not excluded by valid agreement between the parties[] is marital property unless it can be traced directly to a non-marital source of funds or property.” Melrod, 83 Md. App. at 187.
B. Step Two: Determining the Value of Marital Property
“The law is settled that, in a proceeding for absolute divorce, the value of marital property must be decided as of the date on which divorce is actually entered.” Doser v. Doser, 106 Md. App. 329, 348 (1995); see Fox v. Fox, 85 Md. App. 448, 460-61 (1991) (“[E]quity requires that reasonable efforts be made to ensure that valuations of marital property approximate the date of judgment of divorce which includes a monetary award.”) (quoting Rosenberg, 64 Md. App. at 507 (citation omitted)).
Maryland courts have long recognized that “[v]aluation is not an exact science.” Goicochea v. Goicochea, 256 Md. App. 329, 354 (2022) (quoting Innerbichler, 132 Md. App. at 241) (additional citation omitted). “In this context, “value means fair market value, which is defined as the amount at which property would change hands between a willing buyer and a willing seller[.]” Rosenberg v. Rosenberg, 64 Md. App. 487, 525-26 (1985) (internal citations omitted). “[T]he burden rests upon the proponent of the value of the [property] to produce evidence of a [valuation] source’s competence.”). Gravenstine, 58 Md. App. at 175.
The total asset value of a business includes the value of the goodwill of the business,11 in addition to the company’s tangible assets before liabilities. BAA, PLC v. Acacia Mut. Life Ins. Co., 400 Md. 136, 164 n.24 (2007) (citations omitted); Innerbichler, 132 Md. App. at 238 (noting that taxes are not a tangible asset because they are “too speculative” and thus “should not be taken into account in valuing property before making a monetary award.”) (internal citation and quotation omitted). “Because ‘business valuation is far more complex’ than the valuation of most types of assets, courts usually require expert testimony to determine the value of a business.” Goicochea, 256 Md. App. at 354 (quoting Long v. Long, 129 Md. App. 554, 570 (2000)). It is proper for a court to look to testimony and other evidence submitted by the parties “[i]n the absence of expert testimony by an expert witness[.]” Karmand v. Karmand, 145 Md. App. 317, 347 (2002). That said, a trial court is “entitled to” reject a party’s testimony regarding a property’s fair market value. Id.
1. Limitations on the Authority to Transfer Ownership of Property
Once a court has identified marital property and determined its value, significant limitations apply to the court’s authority to transfer ownership of that property. Pursuant to FL § 8-202(a)(3), and “[e]xcept as provided in § 8-205 of this subtitle, the court may not transfer the ownership of personal or real property from one party to the other.” The exceptions in FL § 8-205(a)(i)–(iii) authorize courts to transfer ownership of an interest in: a pension, retirement, profit sharing, or deferred compensation plan; family use personal property; and real property jointly owned by the parties and used as the principal residence of the parties when they lived together.
Put differently, FL § 8-205 “does not carry with it a right in the court to determine the assets that will be transferred or utilized to fund that award.” Blake, 81 Md. App. at 726. Instead, “[r]ather[ than transferring ownership of unqualifying property], the trial judge may either grant a monetary award to adjust the equities of the parties, [] or, in the case of property owned by both of them, order that the property be sold and the proceeds divided equally.” Pleasant v. Pleasant, 97 Md. App. 711, 720 (1993) (citations omitted). See Jandorf v. Jandorf, 100 Md. App. 429, 438 (1994) (recognizing that a trial “court has authority [] to order the sale of jointly owned property”).
Moreover, absent a valid agreement between the parties, a court may not order that a party keep items of jointly owned property then in her possession at the time of the divorce. Cf. Harbom v. Harbom, 134 Md. App. 430, 455 (2000). Such an order would be “tantamount to transferring ownership of that property from both parties to one of them[,] . . . which the court is not authorized to do.” Pleasant, 92 Md. App. at 721-22 (quotation omitted). Trial courts, likewise, do not have the authority to transfer ownership of bank accounts. See Blake, 81 Md. App. at 721-22 (holding that trial court made “impermissible transfer of assets” from husband to wife when it ordered that wife “was entitled to take the value of her portion . . . from the parties’ [joint bank] account”).
In sum, “[w]hile a monetary award may be made to adjust the equities of the parties, the ownership cannot be changed.” Blake, 81 Md. App. at 722. “By applying the [three-step process] precisely, while the end result appears the same, we avoid the pitfall of an impermissible transfer.” Id. at 724. Where a “court improperly transfer[s] ownership of the property[,] [FL] § 8-202(a)(3)[,] [] these contested provisions of the judgment must be vacated and remanded for a proper equitable distribution.” Prahinski v. Prahinski, 75 Md. App. 113, 140 (1988).
C. Step Three: Determining Whether a Monetary Award is Necessary to Achieve Equitable Distribution
After the court determines which property is marital and the value of the marital property, “the court may . . . grant a monetary award[] . . . as an adjustment of the equities and rights of the parties concerning marital property. . . .” FL § 8-205(a)(1). The purpose of a marital award “is to correct any inequity created by the way in which property acquired during marriage happened to be titled.” Doser, 106 Md. App. at 349.
“The monetary award is thus an addition to and not a substitution for a legal division of the property accumulated during marriage, according to title. It is intended to compensate a spouse who holds title to less than an equitable portion of that property. . . .” Id. (quoting Ward v. Ward, 52 Md. App. 336, 339 (1982)).
Critically, a court may “decide whether to grant a [single] monetary award” only after it “determine[s] the value of all marital property.” Brewer, 156 Md. App. at 106 (emphasis added) (citations omitted). Thus, putting it all together, the three-step process requires a court to first identify all marital property, then value all marital property, and only then—after considering the total value of marital assets held by each party—determine whether a monetary award is necessary to achieve an equitable distribution. See Harper, 294 Md. at 82 (requiring the court “to make an equitable distribution of the value of the marital property with due regard being given to all of the relevant factors”).
To achieve an equitable distribution, circuit courts are “vested with broad discretion in deciding whether to grant a monetary award, but the exercise of that discretion should be informed and based upon reason.” Freese v. Freese, 89 Md. App. 144, 153 (1991). Further, the court “is required to consider the statutory factors contained in [FL] § 8-205(b).”12 Flanagan, 181 Md. App. at 520. While the court “need not go through a detailed check list of the statutory factors,” there must be some indication that the factors were considered. Malin v. Mininberg, 153 Md. App. 358, 429 (2003) (citations and internal quotation marks omitted). So long as the ultimate decision is fair and equitable, the court properly exercised its discretion. Long, 129 Md. App. at 578.
DISCUSSION
I. The Circuit Court Erred In Granting Multiple Monetary Awards To Husband.
A. Step One: The circuit court must clarify its evidentiary findings as to the Joint Investment Account; however, the court’s error as to the identity of the Home was harmless.
Wife first argues that the circuit court erred in finding that she “failed to present any evidence” of the non-marital source of the Joint Investment Account. During the merits hearing, Wife testified that her share of proceeds from the sale of family property in the Philippines, or $183,000, was wired into one of the parties’ joint accounts by her sister, and that the parties subsequently funded the Joint Investment Account13 with $150,000 of the sales proceeds. She argues that this testimony was legally sufficient to satisfy her burden of proof to trace the funds to a non-marital source. Husband’s brief did not respond to Wife’s contentions regarding the Joint Investment Account.
The court determined in its oral ruling that Wife did not present “any credible evidence regarding the alleged nonmarital portion of the account . . . nor the source of funds.” (Emphasis added.) In its written judgment, however, the court determined that Wife “had the burden of directly tracing her alleged non-marital contribution to this account
to a non-marital source” but found that Wife “failed to present any evidence to prove her burden.” (Emphasis added.)
We are unable to discern whether the circuit court simply did not believe Wife’s testimony, or whether the court determined that Wife presented “no evidence” because Wife presented no supporting financial documentation. To the extent the court found that Wife put on no evidence because Wife provided only testimony to trace the funds to a non-marital source, the court clearly erred, because testimony is evidence. To the extent the circuit court intended this statement to mean that Wife presented no credible evidence (again, that the circuit court did not believe Wife), however, that assessment would be permissible. Hripunovs v. Maximova, 263 Md. App. 244, 261, 269 (2024) (“It is ‘not our role, as an appellate court, to second-guess the trial judge’s assessment of a witness’s credibility[,]’” as the trial judge is “most aptly situated to determine the credibility of witnesses[.]”) (quotation and citation omitted).
Accordingly, we vacate the circuit court’s determination that the Joint Investment Account is marital property to be divided equally. On remand, the circuit court is to take into consideration, and evaluate the credibility of, Wife’s testimony—as evidence—that she funded the Joint Investment Account with non-marital funds.
Turning to the Home, Wife contends that the circuit court erred in determining that the Home was non-marital property. Wife argues that the Home is marital property because payments made during the marriage were tendered on an outstanding mortgage, and because she “[took] care of [Husband’s] children” and the parties’ son, maintained the Home during Husband’s 2021-2022 incarceration, and “spent a large sum of money in renovations, which improved the [H] ome and its value.” She argues that although Husband had title and possession prior to the marriage, the parties made payments on the Home’s second mortgage with marital funds and paid property taxes14 during their 21-year marriage.
Husband responds that the undisputed evidence established that the Home was “fully purchased” in 1999, approximately two years before the parties’ marriage, and that “a new loan or mortgage existed on the [Home], which was paid[]off in or around 2005.”
The circuit court erred in determining that the Home was non-marital by relying exclusively on Husband’s purchase of the Home prior to the marriage. In the Amended Judgment of Absolute Divorce, the court noted that, “[a]t trial, [Wife] argued that despite the fact that the former marital [H]ome was purchase[d] prior to the marriage, it was marital.” The court concluded that the Home “is [Husband’s] non-marital property because it was purchase[d] prior to the parties’ marriage and [Wife] is not entitled to it.” We agree with Wife that the circuit court incorrectly stated the law. “[U]nder the Maryland Act the appropriate analysis to be applied is the source of funds theory.” Harper, 294 Md. at 80 (rejecting the inception of title theory). The circuit court, however, did not apply the source of funds theory, which required analysis of the source of funds Husband used to acquire the Home. The court, instead, improperly applied the inception of title theory to determine that the Home was non-marital because Husband had taken title to the Home prior to the parties’ marriage.
We conclude, however, that the circuit court’s error was harmless. Though the court erred as a matter of law by applying title theory rather than the source of funds theory to determine whether Wife had a marital interest in the Home, further proceedings are not required because the error did not alter the ultimate determination that the Home was nonmarital. See Matter of Becker, 265 Md. App. 301, 309 (2025) (recognizing that harmless error typically does not warrant reversal).
Even where property “may be part marital and part nonmarital,” the party asserting a marital interest must still “meet her burden of establishing which property was marital or to establish its value.” Lee, 182 Md. App. at 294. We agree that Wife was required to prove the marital proportion to establish the identity of the marital property. See id. Wife directs us to no portion of the record in which she presented evidence of the proportion of the Home’s value that should be considered marital. Nowhere does Wife “provide even a hint as to the dollar amount that she claims the trial judge should have found to be the marital value of the [property].” Id. at 295 n.6. Similarly, Wife introduced no evidence to indicate how her contributions of making tax payments and caring for Husband’s children led to appreciation in the value of the Home. See Blake, 81 Md. App. at 720 (holding that the trial court was not clearly erroneous in not attributing any value to work done on the parties’ marital home when neither party presented any evidence of increased value to the home); Steinmuller, 157 Md. App. at 668-69 (holding that when an expert cannot determine what portion of a property’s appreciation is attributable to a party’s efforts, the trial court does not, based on this fact alone, err in declining to assign the increase in value to the party’s efforts).
Moreover, as noted above, the Deed of Trust appears to have secured a home equity line of credit, rather than a loan to purchase the Home. Home equity lines of credit are not necessarily considered an “acquiring interest” for purposes of marital property; instead, “a home equity line of credit may be categorized as marital debt . . . .” Ledbetter v. Ledbetter, 255 Md. App. 1, 4 n.4 (2022) (citation omitted). In other words, “property which is represented by an outstanding marital debt has not been ‘acquired’ for the purpose of an equitable distribution by . . . a monetary award. . . . .[A] marital debt is considered under the second step of the process followed in reaching a monetary award, namely the valuation of marital property.” Schweizer v. Schweizer, 301 Md. 626, 637 (1984). It follows that Wife would not be able to establish a marital interest in the Home based on payments made for the home equity line of credit.
For these reasons, we vacate the circuit court’s disposition of the Joint Investment Account and hold that although the circuit court applied the wrong legal standard to identify the Home as non-marital property, because Wife failed to meet her burden of proof, the court’s error was harmless.
B. Step Two: The circuit court erred in valuing Howard Video.
Wife next argues that the court erred in using the 2021 Balance Sheet value, $582,668.02, as the fair market value of Howard Video. She contends that the “[b]alance sheet value
is book or historical value[,]” which, quoting Rosenberg v. Rosenberg, 64 Md. App. 487, 525 (1985), she explains “is not an amount ‘at which property could change hands between a willing buyer and a willing seller[.]’” (Alteration added.) Wife also asserts that even if the court could have used the 2021 Balance Sheet value, it should have adjusted its calculation to account for the business equipment, worth approximately $423,187, in Husband’s possession.
Husband counters that there is “no exact science when valuing businesses” and that the circuit court properly relied on the only financial evidence before it, namely, the 2021 Balance Sheet prepared by the company’s accountant (who testified at the merits hearing) and approved by Wife as CEO. Husband further argues that the court’s use of the 2021 Balance Sheet was proper because Wife did not supply “other evidence to refute the [t]rial [c]ourt’s determination . . . .”
Because both parties asserted a marital interest in Howard Video—stipulated by the parties in the Rule 9-207 Statement as marital property—but disagreed as to the valuation of the business, both spouses bore a distinct burden of proof as to the value of Howard Video. See Pickett, 73 Md. App. at 97 (“[T]he party asserting a marital property interest in specific property has the burden of producing evidence as to the identity and value of that property.”); see also Gravenstine, 58 Md. App. at 175 (“[T]he burden rests upon the proponent of the value of the [property] to produce evidence of a [valuation] source’s competence.”). That said, neither party presented an expert witness to assist the circuit court’s valuation of Howard Video. Indeed, the court explicitly stated that it “struggle[d] with the valuation of [Howard Video] as [Wife] has f[a]iled to file an income tax [] return as it related to the actual value of the property.”
Nonetheless, the circuit court’s reliance on the 2021 Balance Sheet, which reflects book value or historical cost and not its fair market value, was inadequate to properly value the business “as of the date on which divorce [was] actually entered.” Doser, 106 Md. App. at 348 (citing Fox v. Fox, 85 Md. App. 448, 460-61 (1991)) (additional citations omitted). In business valuations, the court must “plac[e] a value on each of the component assets of the business and add[] the numbers together. Those assets ‘fall into three classes: tangible assets, liabilities, and goodwill.’” Skrabak v. Skrabak, 108 Md. App. 633, 649 (1996) (internal citation omitted). Applying this principle here, we conclude that the court abused its discretion in using the 2021 Balance Sheet to value Howard Video, and accordingly vacate the court’s valuation of the business. Its reliance did not consider Howard Video’s tangible assets, liabilities, and/or goodwill as of the date of divorce.
On remand, unless the parties come to an agreement on Howard Video’s value,15 the circuit court shall value Howard Video as of the date on which the divorce was actually entered, utilizing appropriate methodologies for determining fair market value of a closely held business. See Doser, 106 Md. App. at 348 (citations omitted). The court may, at its discretion, appoint an expert, at the cost of the parties, to determine the fair market value of Howard Video. Md. Rule 5-706(a) (“The court may appoint any expert witnesses agreed
C. Step Three: The circuit court committed multiple errors in granting the monetary awards.
Wife also challenges the circuit court’s award of $220,000 (or approximately 38 percent of the court’s valuation of Howard Video) to Husband, despite the determination that Husband owned only five percent of the business. Husband summarily argues that the court’s monetary award properly considered equitable factors, including Wife’s failure to issue K-1 distributions16 to Husband. As explained below, we hold that the court erred in three separate ways.
First, the circuit court fundamentally erred in its approach to the monetary award by conducting a property-by-property analysis rather than following the mandatory three-step process. Instead of (1) identifying all marital property, (2) determining the total value of all marital property, and (3) then deciding whether the division of marital property according to title would be unfair—and if so, granting a single monetary award after consideration of the FL § 8-205(b) factors—the circuit court made separate dispositions and awards for each individual asset.
The circuit court ordered that the Joint Investment Account “be divided equally between [the parties;]” that four bank accounts titled in Wife’s name “be divided 50/50 between the parties;” that Wife transfer $60,000 from a fifth account to Husband; that the account titled in Husband’s name “be divided 50/50 between the parties[;]” and that Husband receive a $220,000 monetary award in relation to Howard Video. Each of these dispositions was made separately, without any indication that the court had first calculated the total value of all marital property and then considered the FL § 8-205(b) factors to determine whether an equitable distribution required a monetary award.
This piecemeal approach violates the mandatory threestep process. As this Court explained in Brewer, a circuit court may “decide whether to grant a [single] monetary award” only after it “determine[s] the value of all marital property.” 156 Md. App. at 106 (citations omitted) (emphasis added). The purpose of the monetary award is “to correct any inequity created by the way in which property acquired during marriage happened to be titled.”17 Doser, 106 Md. App. at 349. To achieve this purpose, the court must view the marital estate as a whole, determine the total value of marital property, ascertain what portion of the total marital property each spouse holds title to, and only then, if a division according to title would be inequitable, grant a monetary award to rectify the inequity. The court must create a comprehensive marital property schedule corresponding to the monetary award. See, e.g., Wasyluszko v. Wasyluszko, 250 Md. App. 263, 267 (2021) (exemplifying a marital property schedule).
The FL § 8-205(b) factors contemplate this holistic approach. Factor two, for example, requires the trial court to consider “the value of all property interests of each party[.]” FL § 8-205(b)(2). This cannot be done if the court is making separate awards for each individual asset without reference to the overall distribution. Similarly, factor three requires
consideration of “the economic circumstances of each party at the time the award is to be made.” FL § 8-205(b) (3). A property-by-property approach fails to account for the cumulative effect of multiple awards on each party’s economic circumstances.18
Here, there is no indication in the record that the circuit court calculated the total value of all marital property, determined how that property was divided according to title, and then considered the FL § 8-205(b) factors in deciding whether to grant a monetary award. Instead, the court made separate transfers and awards for each asset, thereby deviating from the requisite holistic approach in FL § 8-205(b).
Second, the circuit court further erred in ordering that Wife “shall keep as her sole and separate property all remaining assets of the business.” The physical equipment belonged to Howard Video. Nothing in the record indicates that Husband consented to the transfer of Howard Video’s fixed assets to Wife. Though Wife repeatedly stated at trial that she wanted Husband to have the equipment,19 the court made no finding that the parties had agreed that Wife keep the equipment. See Harbom v. Harbom, 134 Md. App. 430, 455 (2000) (explaining that transferring the property of one party to another party without the parties’ consent would be improper).
Thus, in ordering that Wife “keep as her sole and separate property all remaining assets of the business[,]” the circuit court impermissibly transferred ownership of Howard Video from both parties to one party. See Pleasant v. Pleasant, 97 Md. App. 711, 720, 721-22 (1993) (“[T]he [circuit court] had no authority to permit either of [the parties] to retain possession of the property then in his or her possession, but should have ordered the property sold and the proceeds divided between them.”).
Third, the circuit court also erred in transferring ownership of seven bank accounts.20 The court disposed of eight bank accounts: six titled in Wife’s name; one titled in Husband’s name; and one titled jointly. After identifying who had title to each bank account, the court ordered that four of the six accounts titled solely in Wife’s name “be divided 50/50 between the parties[,]” and ordered Wife to transfer funds to Husband directly from each account. The account divisions and transfer orders were made immediately following the court’s individual identification of each account’s title.
The circuit court also ordered that Wife transfer to Husband $60,000 from a fifth account titled solely in Wife’s name. The court explained that “[Wife] used [this account] to care for the minor child as well as take care of the household responsibilities. As such, since [Wife] has been caring for the minor child and taking care of responsibilities solely . . . , the [c]ourt will award [Husband] $60,000 from that account to be transferred from [Wife].” Similarly, the court ordered that the account titled solely in Husband’s name “be divided 50/50 between the parties[,]” and ordered that Husband transfer funds to Wife from this account. Finally, the court ordered the parties’ joint account to “be divided 50/50[,]” and that Wife “transfer to [Husband] the sum of $11.50 . . . and [] close the account.”
These orders constituted impermissible transfers of ownership because, as explained above, trial courts do not
have the authority to transfer ownership of bank accounts. See Harbom, 134 Md. App. at 455; Pleasant, 92 Md. App. at 711, 720, 721-22; see also Blake, 81 Md. App. at 721-22 (holding that trial court order specifying that the monetary award must be paid to wife from a bank account titled in husband’s name constitutes an impermissible transfer of ownership). Accordingly, we vacate and remand the corresponding portions of the Amended Judgment of Absolute Divorce. See Prahinski v. Prahinski, 75 Md. App. 113, 140 (1988) (holding that when a “court improperly transfer[s] ownership of the property[,] [FL] § 8-202(a)(3)[,] [] the[] contested provisions of the judgment must be vacated and remanded for a proper equitable distribution”).
II. Wife’s Challenge To The Payment Schedule Is Moot.
Wife’s challenge to the payment schedule corresponding to the disputed monetary awards is rendered moot because, as discussed at length above, we vacate these monetary awards and remand for further consideration. See Lee, 182 Md. App. at 291 (noting that this Court “need not resolve th[e] issue” of the payment schedule because we had already ruled that, “[u]pon remand, the trial judge should reconsider the amount of the monetary award”). Nevertheless, we exercise our discretion pursuant to Maryland Rule 8-131(a) and address the payment schedule for guidance on remand.
“We first observe that the method of payment is entrusted to the sound discretion of the trial judge.” Caccamise v. Caccamise, 130 Md. App. 505, 522 (2000). Pursuant to FL § 8-205(b), the court must determine the payment method based on its consideration of the same factors used to determine the amount of the monetary award. See, e.g., Schweizer v. Schweizer, 301 Md. 626, 630 (1984) (“In determining the amount and method of payment of an award, the court is obliged to consider each of [the FL § 8-205(b)] factors.”). In making this determination, the court should consider whether the marital property disposition has affected a party’s ability to pay, e.g., an order granting use and possession of real property to only one party, requiring the paying party to relocate.
“[T]he ‘terms of the payment must be fair and equitable,’ and the court should consider the method of payment in light of the payor’s ability to pay.” Lee, 182 Md. App. at 291 (quoting Caccamise, 130 Md. App. at 523). A circuit court may draw inferences about a party’s ability to pay “from the financial evidence adduced on the other issues in the case.” Williams v. Williams, 71 Md. App. 22, 38 (1987) (citing Rosenberg, 64 Md. App. at 522).
If the award is based on the value of assets that are unavailable for immediate monetary payment, the court may not order an immediate payment absent evidence of the payor’s ability to pay the award (or to borrow and repay).
See Rosenberg, 64 Md. App. at 522-23 (vacating the payment schedule when “the [court] completely ignored the fact that a large part of the marital property consisted of interests in benefit plans, which were not presently available to [the party]” and “[t]here was no factual predicate upon which [the court] could determine whether [the party] could borrow the amount determined.”).
Thus, where the monetary award is largely based on the value of an illiquid asset, such as a business, the court should try to ensure that the payment schedule is “not ‘so harsh as to force [the payor] spouse to liquidate his or her . . . interest in order to satisfy’ the monetary award.” Innerbichler, 132 Md. App. at 243 (quoting Deering v. Deering, 292 Md. 115, 131 (1981)).
This Court has repeatedly upheld payment schedules which spread out payments over several years, even without interest. See Innerbichler, 132 Md. App. at 242-43 (upholding interest-free payment schedule requiring semi-annual payments over a five-year period); Schaefer v. Cusack, 124 Md. App. 288, 301-02 (1998) (holding no abuse of discretion where trial court ordered a three-year payment schedule, rather than a lump-sum payment). On the other hand, this Court has emphasized that the circuit court should determine “whether the award can be paid in a more expeditious manner or, if not, whether a reasonable amount of interest should be paid to [the payee] for the period of time she is required to wait to collect” the award. Caccamise, 130 Md. App. at 523.
On remand, the circuit court should consider these principles in determining the payment schedule for a monetary award, if applicable.
CONCLUSION
We hold that the circuit court erred (1) by conducting property-by-property monetary award analyses rather than following the mandatory three-step process, (2) in its valuation of Howard Video and by transferring ownership of Howard Video’s equipment, and (3) by transferring ownership of the bank accounts. Accordingly, we vacate the monetary awards, totaling $464,134.19, to Husband. We also vacate the circuit court’s valuation of Howard Video and determination that the Joint Investment Account is marital property to be divided equally. The case is remanded for further proceedings not inconsistent with this opinion.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY VACATED. CASE REMANDED TO THE CIRCUIT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO BE PAID 25 PERCENT BY APPELLANT AND 75 PERCENT BY APPELLEE.
1 Wife phrased the questions as follows:
FOOTNOTES
1. Whether the trial court erred when it found that the family home was not marital property because [Husband] had title and possession prior to the marriage, even though the parties continued to make payments on the mortgage with marital funds; [Wife] made substantial improvements on the home after it was flooded; and the parties paid taxes on the home during the 21 years of the marriage[.]
2. Whether the trial court erred when it found that [Wife] failed to present any evidence of the source of funds for the Joint Account when [Wife] testified that the money was her share of the proceeds from the sale of [the] family house in the Philippines; it was wired into the account by her sister; it had grown to a determinate amount; the court acknowledged that growth of the investment[.]
3. Whether the trial court erred when it used the balance sheet value or book value or historical value as the value of Howard Video[.]
4. Whether the court erred when it used total balance sheet value or book value or historical value of Howard Video [], composed primarily of contracts and equipment, without adjustment for the balance sheet, book, or historical value of the company’s equipment in the possession or custody of [Husband], to determine the value of the company[.]
5. Whether the trial court erred when it used the balance sheet, book, or historical value of the company, rather than the fair market value, to determine the marital award[.]
6. Whether the court erred when it awarded as [a] marital award 38 percent of the balance sheet value of the company or $220,000 to [Husband] who was a [five] percent owner[.]
7. Whether the trial court erred when it ordered [Wife] to pay more than $460,000 within 30 days without regard to [Wife]’s ability to pay said judgment sum or any evidence of her ability to borrow money by which to pay said judgment sum[.]
2 Husband was previously married and divorced prior to his marriage to Wife.
3 The Deed of Trust, for which Household Finance Corporation III was the “Lender,” stated as follows: WHEREAS, Borrower [(Husband and his ex-wife)] is indebted to Lender in the principal sum of $65,000 or so much thereof as may be advanced pursuant to Borrower’s Revolving Loan agreement dated December 12, 1989[,] and extensions and renewals thereof[,] . . . providing for a credit limit of $65,000 and an initial advance of $65,000.
As we understand this language, the Deed of Trust secured a home equity line of credit—not a loan to purchase the Home. As explained below, a home equity line of credit does not secure an “acquiring” property interest for purposes of marital property. Ledbetter v. Ledbetter, 255 Md. App. 1, 4 n.4 (2022) (citation omitted).
4 At the request of Wife’s counsel, Wife’s appraiser returned to appraise the Home for a second time in May 2023, which resulted in a higher appraisal value. Nonetheless, due to a discovery violation, the court excluded the May 2023 appraisal and ruled that trial would proceed with only the June 2022 appraisal. Ultimately, the court “found [] the value [of the Home] pursuant to the appraisal was $423,000.” Wife does not challenge the court’s exclusion of the second appraisal, and we see no reason to disturb this discovery ruling.
5 Administered by the U.S. Small Business Administration, the 8(a) Business Development program provides participating businesses with “training and technical assistance[.]” U.S. SMALL BUSINESS ADMINISTRATION, 8(a) Business Development program, [https://perma.cc/4D5W-Q5NJ]. The program allows participating businesses to “compete and receive set-aside and sole-source contracts” and “[c]onnect with procurement and compliance experts[,]” among other benefits. Businesses that are eligible for certification in this program include small businesses owned and controlled at least 51 percent “by U.S. citizens who are socially and economically disadvantaged[.]” Id.
6 The circuit court found that “[Wife] filed based upon the grounds of constructive [] desertion, cruelty of treatment and excessively vicious conduct as well as 12 months separation.” The court found “grounds for cruelty of treatment and excessively vicious conduct . . . [based on] one incident regarding the parties wherein [Husband] . . . hit [Wife] with a belt[,] and there was verbal and physical abuse in front of the child.” The court noted that, from this incident, Husband “was sentenced to 12 months in jail[.]”
7 The circuit court initially granted the parties an absolute divorce in February 2024. The court entered an Amended Judgment of Absolute Divorce on April 2, 2024, to fix a typographical error.
8 We note, for completeness, that the parties had filed a Joint Statement of Marital and Non-Marital Property, pursuant to Maryland Rule 9-207, in which they stipulated that Howard Video was marital property.
9 The circuit court awarded the sixth account titled in Wife’s name to Wife.
10 The Supreme Court of Maryland has illustrated when activity qualifies as an “active effort” that renders property
appreciation value marital property. For example, in Brodak v. Brodak, the Court held that additional trailers acquired during the marriage constituted marital property because the funds used to purchase the additional trailers were the result of the wife’s efforts working in the parties’ trailer park business. 294 Md. 10, 26-27 (1982). Conversely, in Rosenberg v. Rosenberg, this Court declined to hold that the value of an increase to non-marital property was marital property because the circuit court could not accurately ascertain whether the increased value resulted from the marital unit’s effort. 64 Md. App. 487, 530-31 (1985). This Court affirmed the circuit court’s finding that “[wife] ha[d] not proven that [husband’s] personal efforts . . . either directly or indirectly contributed to the increase in value of [husband’s] life interests in [the corporation]” because the stock’s value increased by a “variety of factors” beyond the spouse’s efforts, including the increase in value of securities and other assets held by the corporation. Id. at 530.
11 As recognized by the Supreme Court of Maryland, “goodwill” has been defined as follows:
The advantage or benefit which is acquired by an establishment beyond the mere value of the capital, stock, funds, or property employed therein, in consequence of the general public patronage and encouragement which it receives from constant or habitual customers, on account of its local position or common celebrity, or reputation for skill or affluence, or punctuality, or from other accidental circumstances or necessities, or even from ancient partialities or prejudices.
BAA, PLC v. Acacia Mut. Life Ins. Co., 400 Md. 136, 164 n.24 (2007).
12 The 11 factors enumerated in FL § 8-205(b) are as follows:
(1) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(2) the value of all property interests of each party;
(3) the economic circumstances of each party at the time the award is to be made;
(4) the circumstances that contributed to the estrangement of the parties;
(5) the duration of the marriage;
(6) the age of each party;
(7) the physical and mental condition of each party;
(8) how and when specific marital property or interest in property described in subsection (a)(2) of this section, was acquired, including the effort expended by each party in accumulating the marital property or the interest in property described in subsection (a)(2) of this section, or both;
(9) the contribution by either party of property described in § 8-201(e)(3) of this subtitle to the acquisition of real property held by the parties as tenants by the entirety;
(10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and
(11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property described in subsection (a)(2) of this section, or both.
13 At the merits hearing, Wife testified that she and Husband also deposited “all of [their] salar[ies] and distributions” from Howard Video into the Joint Investment Account.
14 Although Wife’s appellate brief does not explicitly state that she paid property taxes, Wife testified on direct examination that she had paid the Home’s property taxes since 2021.
15 Moreover, should the parties reach an agreement for one to buy out the other’s interest in Howard Video, or to sell Howard Video to a third party, the circuit court may merge this agreement into its judgment. See Droney v. Droney, 102 Md. App. 672, 690 (1995) (“[T]he court can merge the terms of a deed agreement, or settlement made between the parties during the divorce as part of the divorce decree.”) (citing FL § 8-105(a); Goldberg v. Goldberg, 290 Md. 204, 210 n.6 (1981)).
16 We clarify that, although the record reflects that Howard Video is a limited liability company (“LLC”), Howard Video’s accountant testified that the business is taxed federally as an S corporation. As explained by the United States District Court for the District of Massachusetts:
[T]he [federal] Tax code does not define, nor does it recognize, so-called hybrid entities such as limited liability companies and limited liability partnerships. Instead, the [Internal Revenue Service], considers such an entity an unincorporated organization and affords it the option to “elect its classification for Federal tax purposes . . . as either an association (and thus a corporation . . .) or a partnership.” 26 C.F.R. § 301.7701-3.
Sun Cap. Partners III, LP v. New England Teamsters & Trucking Indus. Pension Fund, 903 F. Supp. 2d 107, 118-19 (D. Mass. 2012), aff’d in part, vacated in part, rev’d in part, 724 F.3d 129 (1st Cir. 2013) (internal citations omitted).
Thus, all distributions taken by Howard Video must be distributed in proportion to the shareholders’ ownership interests.
17 We are not persuaded that the circuit court erred in awarding Husband a monetary award higher in value than that to which he was entitled by title. After properly valuing all property and considering the FL § 8-205(b) factors, should the circuit court determine on remand that disposition of the marital estate according to title would be “less than [] equitable,” Doser, 106 Md. App. at 349 (quotation omitted), the court has “broad discretion . . . to grant a monetary award” to either party. Freese, 89 Md. App. at 153. This determination, however, must be made in the context of the entire marital estate, and not on a property-by-property basis.
18 As explained above, although we concluded that the court committed harmless error in its determination that the Home was non-marital property, the court must consider “the contributions, monetary and nonmonetary, of each party to the well-being of the family” prior to determining the amount and method of payment of a monetary award. FL § 8-205(b) (1); see also Turner v. Turner, 147 Md. App. 350, 407 (2002) (“Contribution is a factor that may be considered in making a monetary award[.]”)
(quotation omitted). Accordingly, on remand, the court should weigh Wife’s alleged monetary and non-monetary contributions prior to determining the amount of a possible monetary award and scheduling order.
19 Contrary to one of Wife’s arguments before us, the circuit court’s order did not grant Howard Video’s physical assets to Husband. We also clarify that the court did not have the authority to reduce the valuation of Howard Video by the value of the remaining equipment. See Speropulos v. Speropulos, 97 Md. App. 613, 619 (1993) (“Either each piece of office equipment and inventory is a separate marital asset or the aggregate of equipment and inventory, i.e., the business as a whole, is a single marital asset.”).
20 We note for clarity that the court’s order awarding Wife the account titled solely in her name, valued at $12,895, was permissible.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s conclusion that the personal representative of the decedent’s estate did not breach her fiduciary duties owed to her brother and nephew. Although she failed to provide an accounting to her brother, the breach was remedied by discovery. And while she failed to remit tuition payments to her nephew, he was not otherwise entitled as a beneficiary of the trust.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
tuition payments to Matthew and failing to provide an accounting to Steven. The trial court entered judgment in favor of Carolyn on all other counts and ordered her to submit a plan to wind up the Trust. Further, after concluding that Nancy was not a co-trustee, the trial court entered judgment in favor of Nancy on all counts. This appeal followed.
On appeal, appellants present eight questions for our review, which we have consolidated into six and reordered and rephrased as follows:4
I. Whether the trial court erred in concluding that Carolyn did not breach her fiduciary duty to Steven and Arthur.
II. Whether the trial court erred in excluding (1) Steven’s testimony concerning rental income of Trust assets, (2) Steven’s testimony regarding decedent’s intent in forming the Trust, and (3) Pam Gogol’s testimony related to publicly available data that she gathered and collated.
This case arises from the administration of the Janetta G. Love Family Trust (“the Trust”). On November 27, 2004, Janetta G. Love (“decedent”) passed away testate as a citizen of Montgomery County, Maryland. Decedent was survived by two daughters, Carolyn Hoff (“Carolyn”)1 and Nancy Love (“Nancy,” collectively, “appellees”), and two sons, Steven Love (“Steven”) and Arthur Love (“Arthur”).2 Prior to her death, decedent created a revocable trust that would pass into the Trust upon her death. The Trust listed decedent’s four children as beneficiaries. A separate document, titled “Expression of Wishes, Instructions and Information,” provided that part of Arthur’s share was to be remitted to his son, Matthew Love (“Matthew”),3 for college tuition. Carolyn and Nancy assisted decedent with the creation of the Trust and conducted activities related to it thereafter. No distributions were made from the Trust to Steven, Arthur, or Matthew.
On August 11, 2022, Matthew, in his individual capacity and as Personal Representative of Arthur’s estate, and Steven (collectively, “appellants”), filed an Amended Verified Petition for Assumption of Jurisdiction Over Trust and Accounting and Complaint for Breach of Fiduciary Duties, Conversion, Constructive Trust, Damages and for Injunctive Relief against Carolyn and Nancy in the Circuit Court for Montgomery County. On January 23, 2025, the trial court issued a memorandum opinion finding that Carolyn breached her fiduciary duty by failing to remit
III. Whether the trial court erred in concluding that Nancy was not subject to liability under the Maryland Trust Act or otherwise as either a trustee or agent of the Trust.
IV. Whether the trial court erred in awarding Nancy attorneys’ fees to be paid out of the Trust.
V. Whether the trial court erred in limiting appellants’ remedies to an accounting and payment of Matthew’s tuition.
VI. Whether the trial court erred in qualifying Jonathan Lasley, Esq. as an expert on trust administration.
For the forthcoming reasons, we answer questions one, three, five, and six in the negative, discerning no error by the trial court. Because, as we shall explain, we answer question one in the negative, we do not reach question two. We, however, answer question four in the affirmative. We, therefore, vacate the decision of the trial court only with respect to its order regarding the payment of Nancy’s attorneys’ fees from the Trust. We affirm the judgment by the trial court on all other issues recited in this appeal.
BACKGROUND
The Trust
On March 30, 2004, decedent Janetta G. Love executed a Trust Declaration (“Declaration”). The document created a revocable trust during decedent’s lifetime and named her as trustee thereof. Schedule A of the Declaration set forth the property transferred into the trust by decedent. Among other things, Schedule A includes a list of residential properties
located in Maryland, Virginia, Florida, and Washington, D.C. Decedent received most of the real properties from her grandfather and they were intended to be income producing. Prior to her death, decedent rented out several of the properties. Article I of the Declaration identifies this revocable trust as the “Janetta G. Love Revocable Trust” or the “Janetta G. Love Living Trust” (“Revocable Trust”). Section 6.06 of the Declaration provides a trustee succession plan: if decedent was unwilling or unable to serve as trustee, Carolyn shall serve as trustee; if Carolyn is unwilling or unable to serve as trustee, Nancy shall serve. Upon decedent’s death, the Declaration directed the trustee to collect all debts payable to the trustee, gather personal property of decedent, and establish a second trust called the “Janetta G. Love Family Trust” (“the Trust”).
The Declaration vests broad discretion in the trustee to manage the Trust assets. Section 3.01 directs the trustee to hold and administer the Trust assets and to invest them so that they would result in income production. Section 3.02 requires the trustee to distribute the Trust assets according to Schedule C. Schedule C, in turn, provides that Trust assets shall be divided into four equal shares, one for each of decedent’s children. Further, Schedule C gives Carolyn and Nancy the right to select Trust properties in an alternating order and allows Steven to select from any properties which neither Carolyn nor Nancy selects. Additionally, Section 3.02 creates a separate trust for the distribution of Arthur’s share of the Trust assets to be paid out during his lifetime to supplement living expenses. Any unpaid share at Arthur’s death would be distributed to decedent’s other beneficiaries pursuant to the terms of the Trust, rather than being distributed to his estate or issue.
Certain rights and duties of the trustee are articulated in Section 6.02 of the Declaration. Relevant here, those rights include continuing to operate all or any part of such businesses or business interests which may be part of the trust estate. Specifically, Section 6.02(a)(ii) of the Declaration authorizes the trustee to carry on the businesses or business interests “for such period of time as shall be in the best interests of Grantor’s estate or any trust created hereunder.”
A separate document titled “Expression of Wishes, Instructions and Information” (“Expression of Wishes”) was executed by Carolyn under power of attorney on November 23, 2004.5 Paragraph 2 of the Expression of Wishes provides additional stipulations as to the creation of a trust for Arthur’s share and Paragraph 2E establishes an education sub-trust for Matthew and any additional offspring of Arthur.
Administration of the Trust
Shortly before and after decedent’s death, Steven sought information about his inheritance property rights. Neither Carolyn nor Nancy provided the requested information.6 Decedent’s estate was administered by the Register of Wills for Montgomery County and on August 23, 2005, Carolyn was appointed Personal Representative of decedent’s estate. Shortly after she was appointed, Carolyn contacted Steven to request his signature on some documents associated with the estate. Steven responded with a series of questions regarding his status as beneficiary and indicated
that he wanted to participate in meetings to decide how property issues should be resolved. Carolyn did not respond. Over the years, Steven contacted Carolyn and Nancy at least twice to inquire about his rights as a beneficiary but received no substantive response. Matthew contacted Carolyn over a dozen times regarding his rights as a beneficiary through his father, Arthur. Carolyn did not, at any time, inform Matthew of the provision in the Expression of Wishes for his tuition and never set up the education sub-trust.
In February 2006, the federal estate tax return was completed and showed that the estate owed over $800,000 in taxes. At the time, there were insufficient liquid assets to pay the estate tax. Carolyn entered a 6166 Tax Agreement (“6166 Agreement”) with the Internal Revenue Service (“IRS”), which allows for a family business to pay estate taxes over time. Pursuant to the 6166 Agreement, no taxes were due for five years. Thereafter, the taxes were to be paid off over the next 10 years. Under the agreement, taxes accrue interest at a rate of two percent. Further, the 6166 Agreement provides that, if more than fifty percent of the Trust assets are distributed prior to the end of the deferred payment plan, the tax debt accelerates. By the terms of the 6166 Agreement, Carolyn paid the estate taxes off in full in 2019. Because of the 6166 Agreement, no distributions were made from the Trust. In 2019, Arthur passed away. Prior to his passing, Carolyn made no distributions to him.
When Carolyn took over as trustee, she retained the real properties held in the Trust and endeavored to make them income producing as decedent had done. Because she did not have access to funds to refurbish all the properties at once, she endeavored to rehabilitate one property at a time using her labor as well as that of her husband and Nancy. Nancy was reimbursed for at least some of her labor pursuant to the Expression of Wishes which allows for reimbursement at the rate of $20.00 per hour, with a 5% rate increase per year. Carolyn did not reimburse her husband for his time working on the properties. To provide funds necessary to renovate and repair some of the properties, Carolyn, her husband, her daughter, and Nancy loaned money to the Trust at various times without the preparation of promissory notes. Over the years, Carolyn was able to rent out some of the properties, but some have yet to become income producing.
Throughout her time administering the Trust, Carolyn discussed many aspects of Trust administration with Nancy and requested her help with matters related to the Trust multiple times. On several occasions, Nancy received and deposited checks for the Trust. Further, Nancy was listed as an additional insured on certain property insurance, including properties which she owned an interest of one percent.7 On one occasion, Nancy identified herself as an agent of the Trust on a building permit submitted to the Washington, D.C. government. Carolyn, however, never expressed an inability or unwillingness to serve as trustee.
The Present Action
On August 24, 2021, Matthew, in his individual capacity and as Personal Representative of his father’s estate, and Steven, filed a Verified Petition for Assumption of Jurisdiction Over Trust and Accounting and Complaint for Breach of Fiduciary
Duties, Conversion, Constructive Trust, Damages and for Injunctive Relief. Thereafter, on August 11, 2022, appellants filed an Amended Petition and Complaint (“the Complaint”) against Carolyn and Nancy. Therein, appellants requested the trial court to assume jurisdiction over the Trust and order an accounting. Further, appellants alleged that appellees breached their fiduciary duties by failing to preserve “the Trust property for the benefit of all beneficiaries in good faith and with loyalty to all beneficiaries equally,” selfdealing, “elevating the personal interest of one beneficiary over another,” committing waste, and not “keeping proper accounts.” Additionally, appellants brought claims of conversion and constructive trust and sought an injunction. Appellants requested, among other things, compensatory and punitive damages.
A bench trial was held from December 16 to December 19, 2024. At the conclusion of appellants’ case, the trial court granted appellees’ motion for judgment as to appellants’ claims for conversion, constructive trust, and injunctive relief. At the same time, the trial court determined that it would not award compensation for emotional distress. Because only equitable claims remained, the trial court concluded that it would not consider punitive damages.
Thereafter, on January 23, 2025, the trial court issued a memorandum opinion and order (“January Order”). Therein, the trial court concluded that Carolyn failed to provide an accounting to Steven but found that the breach was remedied by discovery. Further, the trial court concluded that Carolyn breached her fiduciary duty by failing to remit tuition payments to Matthew but found that Matthew was not otherwise entitled as a beneficiary of the Trust. Further, the trial court concluded that Carolyn did not otherwise breach her fiduciary duty, and that Nancy was not a co-trustee at any relevant time. Appellants noted a timely appeal. We shall provide additional facts as necessary in our forthcoming analysis.
STANDARD OF REVIEW
First, “[w]hether an appellate court has jurisdiction over a case is a question of law that this Court reviews de novo.” Saunders v. Gilman, 490 Md. 413, 420 (2025) (citing Rowe v. Md. Comm’n on C.R., 483 Md. 329, 340 (2023)).
Next, “[w]hen an action has been tried without a jury, an appellate court will review the case on both the law and the evidence.” Maryland Rule 8-131(c). We will not set aside a trial court’s findings of fact unless clearly erroneous. Id. “A trial court’s findings are not clearly erroneous if ‘any competent material evidence exists in support of the trial court’s factual findings[.]” Plank v. Cherneski, 469 Md. 548, 568 (2020) (quoting Webb v. Nowak, 433 Md. 666, 678 (2013)). We, however, “review the trial court’s conclusions of law and application of law to facts without deference to the trial court.” Lockett v. Blue Ocean Bristol, LLC, 446 Md. 397, 414 (2016) (citing Tribbitt v. State, 403 Md. 638, 644 (2008)). Further, “[d]ecisions concerning the award of counsel fees rest solely in the discretion of the trial judge.” Petrini v. Petrini, 336 Md. 453, 468 (1994) (citing Jackson Jackson, 272 Md. 107, 111-12 (1974)). “An award of attorney’s fees will not be reversed unless a court’s discretion was exercised
arbitrarily or the judgment was clearly wrong.” Id. (citing Danzinger v. Danzinger, 208 Md. 469, 475 (1955)).
Finally, we review a trial court’s determination concerning the admissibility of evidence for abuse of discretion. Hopkins v. State, 352 Md. 146, 158 (1998) (citing Robinson v. State, 348 Md. 104, 121 (1997)).
DISCUSSION
I. Appellees’ motion to dismiss.
Before turning to the questions presented by appellants, we address appellees’ motion to dismiss.
A. The January Order is a final judgment. We, therefore, deny appellees’ motion to dismiss pursuant to Maryland Rule 2-602.
Appellees contend that this appeal is not properly before us because the January Order does not constitute a final judgment. Appellees reason that, because the trial court expressly retained jurisdiction over the Trust to oversee its final administration and distribution, not all of appellants’ rights under the Trust were disposed of, therefore, there is not an appealable final judgment.8 Appellants counter that the January Order constitutes a final judgment because it disposed of all issues raised by appellants, notwithstanding the fact that the trial court retained jurisdiction to oversee the winding up of the Trust.
As the Supreme Court of Maryland recently explained: It is well settled that, to be appealable, an order or judgment ordinarily must be final. To qualify as a final judgment, an order must either determine and conclude the rights involved or deny the appellant the means of further prosecuting or defending [their] rights and interests in the subject matter of the proceeding. As Maryland Rule 2-602(a) provides, an order that adjudicates fewer than all the claims in an action—or that resolves the rights and liabilities of fewer than all the parties—is not a final judgment.
Saunders, 490 Md. at 422 (citations and internal quotation marks omitted).
Here, the January Order disposed of all claims. The trial court retained jurisdiction, yet it did so for the sole purpose of overseeing the final administration and distribution of the Trust. Although, as appellees correctly argue, the January Order contemplates additional hearings, it does so only within the context of Carolyn’s wind-up plan. To be sure, the trial court expressly stated in its January Order:
7. This matter shall be set for a status hearing in approximately 90 days to check on the status of the wind-up plan. The Court will look to the Trustee at that time for progress on a plan for valuing and distributing the Trust assets.
8. Once the plan is submitted, Plaintiffs [sic] Steven Love shall have 30 days to file any objections to the proposed plan. Additional evidentiary hearings may be necessary before the plan is approved. The Court recognizes that additional issues will need resolution before the plan can be executed.
Contrary to appellees’ assertion, the January Order does not provide appellants with further means to prosecute their claims. As such, we conclude that the January Order constitutes a final judgment over which we have jurisdiction. Accordingly, we deny appellees’ motion to dismiss on that ground.
B. To the extent that appellants’ brief violates certain provisions of the Maryland Rules, we decline to dismiss the present appeal based on such grounds. Next, appellees urge us to dismiss the present appeal because appellants failed to consistently cite to the record extract in their briefing, as is required by Maryland Rule 8-504 (“Rule 8-504”). In support of their argument, appellees cite Rollins v. Capital Plaza Associates, L.P., 181 Md. App. 188 (2008), a case in which we dismissed the subject appeal after finding substantial violations of Maryland Rule 8-504. Appellants counter that, to any extent their briefing lacks citations to the record, such a violation of Rule 8-504 is minor compared to the violations present in Rollins and, therefore, does not warrant dismissal.
In pertinent part, Rule 8-504(a)(4) provides that a brief shall include “[a] clear concise statement of the facts material to a determination of the questions presented . . . . Reference shall be made to the pages of the record extract or appendix supporting the assertions.” Maryland Rule 8-504(c) then confers upon us discretion to dismiss appeals that fail to comply with Rule 8-504: “For noncompliance with this Rule, the appellate court may dismiss the appeal or make any other appropriate order with respect to the case[.]”
To be sure, appellants make multiple factual assertions without citing the record extract in their briefing. To the extent that the omitted citations violate the Maryland Rules, however, such violation pales in comparison to the violations we discussed in Rollins. In Rollins, for example, the appellants’ record extract omitted pertinent parts of the record, while including “at least fifty documents . . . , some of which were not even listed in the table of contents, [which were] not part of the record.” Rollins, 181 Md. App. at 200. Further, more than half of the appellants’ factual assertions lacked citation to the record. Id. at 201.
In the interest of providing a resolution to the parties, we decline to exercise our discretion to dismiss appellants’ appeal pursuant to Rule 8-504. See id. at 202 (“We recognize that dismissing an appeal on the basis of an appellant’s violations of the rules of appellate procedure is considered a ‘drastic corrective’ measure.”).
II. The trial court did not err in concluding that Carolyn did not breach her fiduciary duty to Steven and Arthur.
Appellants first argue that the trial court erred in concluding that Carolyn did not breach her fiduciary duty beyond her failure to provide Steven an accounting and to remit tuition payments to Matthew. Appellants’ argument appears to be two-fold. First, appellants argue that the trial court erred by concluding that the primary source of fiduciary duty in this case is the Trust documents. In so concluding, appellants contend that the trial court ignored aspects of a
trustee’s fiduciary duty that are well established by Maryland common law and the Maryland Trust Act, such as the duty to avoid self-dealing, the duty of loyalty, and the duty to make trust assets income producing. Second, appellants contend that Carolyn breached her fiduciary duty by failing to make the Trust properties income producing, treat all beneficiaries equally, and remit distributions for living expenses to Arthur during his lifetime.9
Appellees counter that the trial court properly determined that Carolyn did not breach her fiduciary duty to Steven and Arthur. Appellees reason that the Trust granted Carolyn authority to delay the distribution of Trust assets. According to appellees, Carolyn’s entry into a 6166 Agreement with the IRS, which allowed her to pay off more than $800,000 due in federal estate taxes over time and at a low interest rate, while prohibiting her from distributing more than fifty percent of the Trust assets, was a reasonable exercise of that discretion. In such circumstances, appellees argue that it is not the place of this Court to determine what alternative actions may have been more beneficial to the Trust and beneficiaries thereof in hindsight.
A. The trial court’s January Order addressed the applicable law in analyzing whether Carolyn breached her fiduciary duty.
A “fiduciary duty is, in general, a duty to act for the benefit of another on matters within the scope of the parties’ relationship.” Plank, 469 Md. at 601 (citing Restatement (Third) of Torts: Liab. For Econ. Harm § 16 (A.L.I. 2020) (“Restatement (Third) of Torts”)). “To establish a breach of fiduciary duty as an independent cause of action, a plaintiff must show: (i) the existence of a fiduciary relationship; (ii) breach of the duty owed by the fiduciary to the beneficiary; and (iii) harm to the beneficiary.” Id. at 599 (citation and internal quotation marks omitted).
It is well established that the fiduciary relationship “between a trustee and the beneficiary of a trust” arises “as a matter of law.” Id. at 601 (quoting Restatement (Third) of Torts § 16 cmt. a). All fiduciary relationships “have ‘general responsibilities that are common to all settings,’ such as a duty of loyalty, and an obligation to avoid self-dealing and conflicts of interest.” Id. at 601 (quoting Restatement (Third) of Torts § 16 cmt. a) (cleaned up). Beyond that, the “particular obligations of a trustee are defined by the law of trusts.” Id. at 601 (quoting Restatement (Third) of Torts § 16 cmt. a) (cleaned up).
At common law, “[a] trustee owes to the beneficiaries of a trust duties of administration, prudence and loyalty.” Hastings v. PNC Bank, NA, 429 Md. 5, 25 (2012). “The trustee’s duty of loyalty . . . is well-established in the common law.” Id. (citing Bd. of Trustees v. Mayor of Balt., 317 Md. 72, 109 (1989)). Generally, “the duty prohibits a trustee from using the property of a beneficiary for the trustee’s own purpose.” Id. (citation omitted). Trustees are prohibited from placing themselves “in any position where [their] selfinterest will or may conflict with [their] duties as trustee” and “using the advantage of [their] position to gain any benefit for [themselves] at the expense of the beneficiary.” Id. (quoting Hughes v. McDaniel, 202 Md. 626, 632 (1953)).
A trustee’s duty of loyalty, however, is not absolute. Id. Indeed, “[a] trustee may engage in an otherwise-prohibited course of action if authorized ‘. . . by the instrument creating the trust[.]’” Id. (quoting Goldman v. Rubin, 292 Md. 693, 706 (1982)).10
The Restatement (Third) of Trusts addresses the duty of prudence with which a trustee must administer a trust:11 “(1) The trustee has a duty to administer the trust as a prudent person would, in light of the purposes, terms, and other circumstances of the trust[;] (2) The duty of prudence requires the exercise of reasonable care, skill, and caution. . . .” Restatement (Third) of Trusts § 77 (A.L.I. 2007) (“Restatement (Third) of Trusts”). The comments to this provision bear out the relevant standards:
In matters relating to the administration of the trust, the trustee has a duty to exercise prudence— that is, to act with care, skill, and caution. . . .
The test of prudence is one of conduct not of performance. The trustee’s conduct, and compliance with other fiduciary standards, is to be judged as to the time of the decision or action in question.
Thus, the prudence of a trustee’s conduct is to be judged on the basis of circumstances at the time of that conduct, not with the benefit of hindsight or by taking account of developments that occur after the time of the action or decision. Also, whether a breach of trust has occurred depends on the prudence or imprudence of the trustee’s conduct, not on the eventual results of managerial or other decisions.
Id. § 77 cmt. a. Whether a trustee’s actions comply with the duty of prudence is judged by an objective standard:
The duty of prudence encompasses the duty to exercise reasonable care and skill in trust administration and the duty to act with a degree of caution suitable to the particular trust and its objectives, circumstances, and overall plan of administration.
The duty of care requires the trustee to exercise reasonable effort and diligence in planning the administration of the trust, in making and implementing administrative decisions, and in monitoring the trust situation, with due attention to the trust’s objectives and the interests of the beneficiaries. . . .
More is required than the exercise of reasonable care alone, for a trustee may be liable for losses that result from failure to use the skill of an individual of ordinary intelligence, despite use of all the skill the particular trustee possesses. . . .
Id. § 77 cmt. b (emphasis omitted).
Further, a trustee is obligated to protect trust property. Id. § 76. “This duty includes the use of reasonable care to protect trust property from loss or damage . . . as a prudent person would for the protection and preservation of trust property.”
Id. § 76 cmt. d.12
Appellants argue that the trial court ignored these standards,
and relied only on provisions within the Trust documents to conclude that, beyond failing to provide an accounting to Steven and remit tuition payments to Matthew, Carolyn did not breach her fiduciary duty as trustee. We are not persuaded. True, the trial court provided in its January Order that “[t]he primary sources of fiduciary duty in this case come from the Trust documents themselves. [T]he trustee’s discretion is quite broad, as is common in such documents. However, this discretion is not unlimited.” Indeed, in concluding that Carolyn did not breach her fiduciary duty by not distributing Trust assets promptly, the trial court explained:
[T]he Trust documents give the Trustee the discretion to carry on the businesses or business interests “for such period of time as shall be in the best interests of Grantor’s estate or any trust created hereunder.” ([citing § 6.02(a)(ii) of the Trust document]).
As set forth above, Carolyn [] did not steal or embezzle anything. She did not even seek to collect the trustee commissions to which she was entitled. None of the trust assets are “missing.” It is easy to say with hindsight that she should have made different decisions, but none of the decisions she made regarding the assets rises to a breach of her fiduciary duties as trustee (except as to the failure to distribute to Matthew . . .). She made the decision to tie up the assets for many years in order to take advantage of the 6166 tax Agreement. The Court finds this decision to be a proper exercise of her discretion.
The trial court, however, did not end its analysis there. Indeed, the trial court went on to weigh the expert testimony offered by both parties, which opined on the reasonableness of Carolyn’s conduct and whether such conduct constituted a breach of fiduciary duty under the applicable standards. Regarding appellants’ expert, the trial court agreed with testimony that Carolyn failed to provide informal accountings. The trial court, however, disagreed with the expert’s opinion that Carolyn “owed a duty to distribute promptly, or that she breached a fiduciary duty by entering into the 6166 Agreement.” The trial court explained that, in its view, “[w] hile [Carolyn] certainly could have made distributions, and she certainly failed to provide Steven information in a timely manner, the Court is not persuaded that her fiduciary duty required her to distribute the Trust assets earlier.” (emphasis omitted).
The trial court further credited appellees’ expert who testified about the “financial workings of the Trust” and opined that Carolyn’s decisions, including entering into the 6166 Agreement, “were within the scope of her discretion as Trustee.” Similarly, the trial court credited appellees’ expert witness, Jonathan Lasley, Esquire.13 The trial court agreed with Mr. Lasley’s “opinion that Carolyn [] acted within the ‘reasonable care’ standard when she entered into the 6166 Tax Agreement with the IRS and delayed distributions.”
From these excerpts of the January Order, we conclude that the trial court did not look to the Trust documents as the sole source of Carolyn’s fiduciary duty. Rather, the trial court’s conclusion that Carolyn did not breach her fiduciary
duty was guided by the Trust documents, as well as the relevant standards as highlighted by counsel and the parties’ expert witnesses.
B. The trial court did not err in concluding that Carolyn only breached her fiduciary duty by failing to provide an accounting to Steven and remit tuition payments to Matthew.
Next, appellants contend that the trial court erred in finding that Carolyn did not breach her fiduciary duty by failing to make the Trust properties income producing, treating all beneficiaries equally, and failing to remit distributions for living expenses to Arthur during his lifetime.
Regarding the first contention, appellants argue that Carolyn’s actions -- repairing the properties one by one, entering the 6166 Agreement with the IRS, and not selling off properties that were not income producing -- were imprudent. Rather, appellants argue that Carolyn should have distributed the Trust. Accordingly, appellants contend that the trial court erred in concluding that Carolyn did not breach her fiduciary duty by entering the 6166 Agreement and failing to distribute the Trust more promptly.
At bottom, appellants merely argue that Carolyn should have chosen a different course of action. Simply because a different decision may have been more favorable to the trust or beneficiaries in hindsight does not mean the decision made constitutes a breach of fiduciary duty. This is so even if the decision made is not the best in retrospect. The trial court’s conclusion, therefore, was not erroneous. To be sure, as the trial court aptly explained, the Declaration gave Carolyn discretion to continue carrying out the business, and Carolyn did just that in deciding to repair the Trust properties and rent them as decedent had done. Although the properties were renovated slowly, and many remain unrented, one of appellees’ expert witnesses, whom the trial court found credible, testified that Carolyn’s management of the Trust property as a closely held business was reasonable. In such circumstances, we discern no error in the trial court’s conclusion that Carolyn did not breach her fiduciary duty in her management of the Trust assets.
Further, Section 2.05 of the Declaration expressly vests Carolyn as trustee with the discretion to use Trust assets to pay and discharge estate or inheritance taxes if “deemed to be in the best interests of the trust estate and the beneficiaries thereof.” Accordingly, we discern no error in the trial court’s conclusion that Carolyn’s decision to enter the 6166 Agreement did not constitute a breach of fiduciary duty.
As to appellants’ argument that Carolyn failed to treat all beneficiaries equally, we similarly discern no error in the trial court’s conclusion. Appellants contend that “Carolyn treated the Trust estate as if no beneficiaries existed, refusing to involve Steven and Arthur[.]” Appellants cite opportunities that Carolyn and Nancy had that Steven and Arthur were not offered as evidence that Carolyn failed to treat the beneficiaries equally and thereby breached her fiduciary duty. Specifically, appellants contend that Carolyn refused to accept appellees’ assistance, used the Florida property as a vacation home for her family, and offered Nancy the
opportunity to develop two Trust properties. Appellants, however, do not explain how the challenged conduct harmed them. In such circumstances, we decline to address this argument further.14
Finally, appellants contend that Carolyn breached her fiduciary duty to Arthur by failing to set up a trust for him and provide him with distributions for living expenses therefrom as contemplated by the Expression of Wishes. Rather than being an exercise of the discretion vested in her by the Declaration and Expression of Wishes,15 appellants contend that Carolyn’s failure to distribute to Arthur constitutes an abdication of her discretion. The trial court explained: Arthur had a series of major life problems, including a serious accident in 2017. Ultimately, Carolyn did not distribute trust assets to Arthur, apart from letting him live rent free at the trust property. Carolyn relied on the “Expression of Wishes” document in dealing with Arthur and deciding what, if anything, to distribute to him. She tried to work out an arrangement with Arthur regarding rent, but he did not or could not keep it.
(citations to record omitted).
On appeal, appellants assert that evidence adduced at trial established that Carolyn failed to exercise judgment regarding her discretion to distribute to Arthur. Specifically, appellants cite testimony concerning Arthur’s financial and health struggles and a text message exchange between Carolyn and Nancy concerning Arthur’s struggles which appellants characterize as their “acquiescence.” Evidence adduced at trial, however, supports the trial court’s conclusion that Carolyn did, in fact, exercise her discretion in deciding what, if anything, to distribute to Arthur. Indeed, there was evidence that Carolyn had discussed with Arthur arrangements for him to pay rent to cover costs associated with maintaining the Trust property that he lived in and discussed citations lodged against the property for violations of regulations. In such circumstances, it can hardly be said that Carolyn abdicated her discretion. Moreover, given the broad discretion that the Trust imparted on Carolyn, we find no error in the trial court’s conclusion that Carolyn did not breach her fiduciary duty by failing to distribute to Arthur during his lifetime.
Because we discern no error in the trial court’s conclusion that, apart from Carolyn’s failure to provide an accounting to Steven and remit tuition payments to Matthew, there was no breach of fiduciary duty, we do not reach appellants’ argument that Steven and Pamela Gogol’s testimony on rental income and the housing market respectively were improperly excluded. Indeed, both pieces of proffered testimony went directly to the issue of damages, and therefore is irrelevant in light of our conclusion that there was no further breach of fiduciary duty.
Similarly, we need not reach appellants’ contention that the trial court abused its discretion by excluding Steven’s testimony as to decedent’s intent in creating the Trust after finding that such testimony was irrelevant. Appellants’ only salient argument is that, in Arthur’s context, Steven’s proffered testimony concerning decedent’s intent in leaving funds for Arthur’s trust would be relevant to calculating
damages.16 Appellants do not challenge the validity of the Declaration, accompanying schedules, or the Expression of Wishes. Because we conclude that the trial court did not err in finding that Carolyn did not breach her fiduciary duty by failing to pay distributions to Arthur during his lifetime, we need not address whether the trial court erred in excluding Steven’s testimony regarding decedent’s intent.
III. The trial court did not err in concluding that Nancy is not subject to liability under the Maryland Trust Act or otherwise.
Appellants next argue that the trial court erred in concluding that Nancy was not liable as either a trustee or agent, reasoning that decedent appointed Nancy as cotrustee in 2004. Further, appellants cite Carolyn’s testimony regarding Nancy’s involvement in the administration of the Trust as evidence that she was, at a minimum, an agent of the Trust. Appellees counter that the trial court was correct in concluding Nancy is not a co-trustee because the plain language of the Trust provides that Carolyn -not Nancy -- is trustee. Further, appellees contend that the trial court’s conclusion that Nancy’s involvement with Trust administration was just as consistent with her being a confidante and sounding board to Carolyn was not clearly erroneous.
The trial court concluded that Nancy owed no duty to appellants because she is not a trustee, explaining that: The Trust documents clearly identify Defendant Carolyn Hoff as Trustee. Defendant Nancy Love is appointed as successor Trustee, only if Carolyn Hoff “is unwilling or unable to serve as Trustee.”
Plaintiff produced substantial evidence that Nancy Love was made aware of the Trust operations, that she participated in various Trust decisions, and that she sought renovations of certain properties. She received and deposited checks on occasion. She was listed as an additional insured on certain property insurance (including properties where she was a 1% owner). She even identified herself as an agent for Janetta Love on a government form. Plaintiff contends that the Court should treat her as a “Co-Trustee.”
The Court declines to declare Defendant Nancy Love a Co-Trustee. All of the evidence provided by Plaintiff is just as consistent with Nancy Love being an advisor, sounding board, and helper to Trustee Carolyn Hoff. The fact that Nancy Love acted at the request of Carolyn Hoff does not make her a Co-Trustee. She simply does not owe the fiduciary duties of a Trustee.
(citations to record omitted). We discern no error in this conclusion.
Indeed, pursuant to Section 6.06 of the Declaration: If Grantor is unwilling or unable to serve as Trustee, Grantor’s daughter, CAROLYN R. HOFF, shall serve as Trustee. If she is unwilling or unable to serve as Trustee, Grantor’s daughter, NANCY D. LOVE, . . . shall serve as Trustee.
By the plain language of the Trust, therefore, Carolyn
became the sole trustee upon decedent’s passing. Appellants cite to no evidence that Carolyn was either unwilling or unable to serve as trustee.
Instead, appellants cite a Trust document signed by decedent in April 2004 that provides, in pertinent part:
The undersigned Trustee, pursuant to Section 6.06 of the JANETTA G. LOVE REVOCABLE TRUST . . . hereby delegates full power and authority to act as Trustee or Co-Trustee to her daughter, NANCY D. LOVE. Either the undersigned or NANCY D. LOVE may act as sole Trustee on her sole signature and authority, or they may act as Co-Trustees on their signatures and authority.
By its express language, however, this delegation only applied to the Revocable Trust, which ceased to exist upon decedent’s death. To be sure, Article I of the Trust provides for the creation of the Revocable Trust during decedent’s lifetime. Article II of the Trust contains provisions for after decedent’s passing. Specifically, Section 2.02 provides in pertinent part that:
Upon the death of Grantor, the Trustee shall establish a separate trust with the remaining principal of the trust estate and out of any accrued, accumulated and unpaid net income thereon, including all property received by the Trustee under the provisions of Section 2.01(a). The trust shall be known as the “JANETTA G. LOVE FAMILY TRUST” . . . .
Upon the setting up of the JANETTA G. LOVE FAMILY TRUST as set forth in this ARTICLE, the JANETTA G. LOVE REVOCABLE TRUST created under ARTICLE I of this Declaration shall terminate.
The trial court, therefore, properly concluded that Nancy is not a co-trustee of the Trust.
Even if Nancy was not a trustee, appellants contend that liability should still attach under an agency theory, which appellants argue the trial court did not consider. In its wellreasoned opinion, the trial court did not address whether Carolyn was an agent of the Trust. We are not, however, convinced that this omission was in error. Appellants do not cite to where in the record they argued that Nancy was an agent and our review of the record leads us to conclude that appellants did not sufficiently advance the agency theory at trial. The only mention of Nancy serving as an agent of the Trust at trial concerned Nancy listing herself as agent on an application for a building permit filed in Washington, D.C. Specifically, Nancy testified that she applied for the permit at Nancy’s request. Nancy explained that, although she could have listed Carolyn’s name on the application, she listed her own because she had professional experience applying for building permits through the Washington, D.C. government and, therefore, was familiar with the process. The trial court certainly addressed this evidence in its co-trustee analysis and concluded it was just as consistent with Nancy being a “helper” to Carolyn. In such circumstances, we conclude that the trial court’s omission of a discussion as to whether Nancy was an agent of the Trust was not erroneous.17
IV. Because Nancy was not a trustee, she was not entitled to have her attorneys’ fees paid out of the Trust.
Next, appellants contend that, should we agree with the trial court’s conclusion that Nancy was not a trustee, we must vacate the trial court’s order to the extent that it awards Nancy attorneys’ fees to be paid out of the Trust. Appellants reason that the Act provides that only trustees are entitled to be reimbursed out of a trust.18 Appellees counter that the trial court properly awarded Nancy attorneys’ fees payable out of the Trust because “Nancy only incurred those attorneys’ fees because appellants sued her and alleged that she was a coTrustee.” Further, appellees argue that, based on “the allegation that she was a Trustee, Nancy was properly permitted to be reimbursed by the Trust for her attorneys’ fees” pursuant to Section 14.5-709(a)(1) of the Act.
The trial court summarily ordered that appellants’ claim that appellees “should reimburse the Trust for attorneys’ fees is denied.” As we shall explain, we conclude that the trial court abused its discretion in determining that Nancy was not required to reimburse the Trust for attorneys’ fees.
As explained, supra, we are not convinced that the Act applies to the present action. Neither party argues that Section 14.5-709 of the Act provides a rule of construction or presumption. See ET § 14.5-1006(a)(3), (4) (providing that, other than “rule[s] of construction or presumption,” the Act does not apply to “judicial proceedings concerning trusts commenced before January 1, 2015”). Section 14.5-709 of the Act provides in pertinent part:
(a) A trustee is entitled to be reimbursed out of the trust property, with interest as appropriate, for:
(1) Expenses that were properly incurred in the administration of the trust; and
(2) To the extent necessary to prevent unjust enrichment of the trust, expenses that were not properly incurred in the administration of the trust.
This provision is neither a rule of construction nor a rule of presumption. Accordingly, because the subject Trust was commenced before January 1, 2015, we conclude that Section 14.5-709 of the Act does not apply to the present judicial proceeding.
Notwithstanding, Section 14.5-709 of the Act mirrors the common law. Indeed, the Restatement (Third) of Trusts provides that “[a] trustee can properly incur and pay expenses that are reasonable in amount and appropriate to the purposes and circumstances of the trust and to the experience, skills, responsibilities, and other circumstances of the trustee.” Restatement (Third) of Trusts § 88. As the comments explain, [t]he trustee can properly incur expenses for reasonable counsel fees and other costs in bringing, defending, or settling litigation as appropriate to proper administration or performance of the trustee’s duties. . . .
More complicated issues are presented by costs incurred by trustees in controversies, or in anticipation of possible litigation, involving allegations of breach of trust and thus exposing the trustee personally to risks such as surcharge
or removal. To the extent the trustee is successful in defending against charges of misconduct, the trustee is normally entitled to indemnification for reasonable attorneys’ fees and other costs; to the extent the trustee is found to have committed a breach of trust, indemnification is ordinarily unavailable. Ultimately, however, the matter of the trustee’s indemnification is within the discretion of the trial court[.]
Id. § 88 cmt. d.
This provision and the accompanying comment expressly provide that payment of attorneys’ fees out of trust assets is only contemplated for trustees. Appellees do not cite to any case law or statute providing that someone determined to be a mere beneficiary of a trust is entitled to have their attorneys’ fees reimbursed by the trust. Because Nancy was not a trustee, the trial court’s conclusion that Nancy’s attorneys’ fees were, nevertheless, payable out of the Trust, was an abuse of discretion.
V. The trial court did not err in limiting appellants’ remedies to an accounting and payment of Matthew’s tuition.
Appellants next assert that the trial court erred by limiting appellants’ remedies to an accounting and payment of Matthew’s tuition. As best as we can tell, appellants’ argument is that the trial court erred in concluding that punitive damages were unavailable to them. In support of this contention, appellants cite the Restatement (Third) of Trusts19 which provides that “punitive damages are permissible” in breach of fiduciary duty cases “under the laws of many jurisdictions.”
Restatement (Third) of Trusts § 100 cmt. d. Appellants urge that the Restatement’s approach is consistent with Maryland’s caseby-case approach of crafting remedies in breach of fiduciary duty cases.20 Appellees counter that the trial court properly declined to award punitive damages because such a remedy is unavailable in equity.
After appellants rested their case, appellees moved for judgment, which the trial court granted as to appellants’ claims for conversion, constructive trust, and injunctive relief. The trial court’s grant of appellees’ motion for judgment on these counts left two claims: a request that the trial court assume jurisdiction over the Trust, and an allegation of breach of fiduciary duties. The trial court explained: “[t]hat has the effect of eliminating punitive damages, because that is not an equitable remedy[.]”
Appellants are correct that the Supreme Court of Maryland has concluded that “a breach of fiduciary duty may be actionable as an independent action.” Plank, 469 Md. at 625. In so holding, the Court noted that, “[t]he remedy for the breach is dependent upon the type of fiduciary relationship, and the historical remedies provided by law for the specific type of fiduciary relationship and specific breach in question, and may arise under a statute, common law, or contract.” Id. Appellants, however, cite no authority providing that punitive damages are an appropriate remedy for breaches such as those involved here, namely Carolyn’s failure as trustee to provide an accounting and follow the terms of the Trust to the extent that they provided Trust funds for Matthew’s tuition. In such 20 Appellants develop their argument that Maryland allows
for punitive damages in breach of fiduciary duty cases more fully in their reply brief. As we explained supra, because these arguments were not fully developed until appellants’ reply brief, we decline to address them here. circumstances, we cannot say that the trial court erred in concluding that appellants are not entitled to punitive damages.
VI. Appellants waived their challenge to Jonathan Lasley’s qualification as an expert on trust administration.
Finally, appellants argue that the trial court abused its discretion by qualifying appellees’ witness Jonathan Lasley as an expert in the field of trust administration. According to appellants, Mr. Lasley was offered as an expert in estate planning, but not trust administration. In such circumstances, appellants urge us to remand to the trial court to reconsider the case without Mr. Lasley’s testimony.21 Appellees counter that, because appellants failed to object when Mr. Lasley was offered as an expert in the field of “estate and trust planning, tax and administration,” appellants waived their challenge to his expert designation. Appellants respond that they properly preserved their challenge by objecting at the beginning of their cross-examination of Mr. Lasley when he opined on the difference between estate planning and trust administration.
Pursuant to Maryland Rule 2-517(a) (“Rule 2-517(a)”), “[a] n objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived.”
Here, Mr. Lasley was offered by appellees “as an expert in the field of estate and trust planning, tax and administration.” When asked if they objected to Mr. Lasley’s qualification as an expert in the proffered fields, appellants stated: I would note, . . . that the scope as articulated in answers to interrogatories. And I will read it with respect to his scope. He’s expected to testify regarding the administration of the trust in this matter, including, but not limited to, interpretation of the trust document, federal and state estate tax obligations, fiduciary duties, and applicable standard of care. And I have no objection to him testifying as to those, Your Honor.
Thereafter, appellees proceeded to question Mr. Lasley on matters related to estate and trust planning, trust administration, and taxation. Appellants lodged no objection to Mr. Lasley’s testimony related to trust administration.
Subsequently, at the beginning of appellants’ crossexamination of Mr. Lasley, the following transpired:
[APPELLANTS]: . . . So is there a distinction between estate and trust planning and estate and trust administration?
[JONATHAN LASLEY]: Sure. I mean, they, obviously one flows into the other, but yes.
[APPELLANTS]: Can you describe the difference?
[JONATHAN LASLEY]: Well, planning, you’re looking at you’re talking to the client, figuring out
what the -- what their goals are, and how -- how -- how to implement them. So that may -- that involves document preparation and conversations. And you know, all -- all of those things to produce a final product. Administration kicks in typically in -- in -- certainly in this circumstance, upon the client’s death. I mean, there may have been some administration efforts with respect to Mrs. --the revocable trust during Mrs. Love’s lifetime, but that’s generally fairly nominal.
[APPELLANTS]: So for the record, Your Honor, I would move to strike his testimony with respect to any sort of estate and trust administration, given that he was qualified as an expert in estate and trust planning, and tax administration.
THE COURT: I’ll deny the motion. Even if appellants are correct that there was nothing to object to when Mr. Lasley was admitted as an expert because no testimony had been made, we conclude that appellants failed to timely object. Indeed, Mr. Lasley testified about trust administration well before appellants objected at the beginning of his cross-examination. Moreover, by moving to strike Mr. Lasley’s “testimony with respect to any sort of estate and trust administration,” appellants necessarily conceded that Mr. Lasley testified on such matters prior to their motion, yet appellants made no prior objection. We, therefore, conclude that appellants waived their challenge to Mr. Lasley’s qualification as an expert in the field of trust administration.
CONCLUSION
For the foregoing reasons, we conclude that appellants appealed a valid final judgment and, therefore, deny appellees’ motion to dismiss. Further, we conclude that, to the extent appellants failed to comply with the Maryland Rules in their briefing, any such violations are not so egregious as to warrant dismissal.
Additionally, we conclude that the trial court did not err in finding that, aside from Carolyn’s failure to provide an accounting to Steven and remit tuition payments to Matthew, Carolyn did not breach her fiduciary duties. We further conclude that the trial court did not err in limiting appellants’ remedies to an accounting and payment of Matthew’s tuition. Furthermore, we conclude that appellants waived their challenge to Jonathan Lasley, Esq.’s qualification as an expert in trust administration. Finally, we conclude that the trial court did not err in concluding that Nancy is not liable as either a trustee or agent of the Trust. In light of this determination, however, we conclude that the trial court erred in awarding Nancy attorneys’ fees to be paid out of the Trust. We, therefore, vacate solely the trial court’s order that Nancy need not reimburse the Trust for her attorneys’ fees.
FOOTNOTES
1 In parts of the record, Carolyn is referred to and refers to herself as Robin. For clarity, we only use the name Carolyn throughout this opinion.
2 In parts of the record, Arthur is referred to as Artie. For clarity, we only use the name Arthur throughout this opinion.
3 In parts of the record, Matthew is referred to as Shaun. For clarity, we only use the name Matthew throughout this opinion.
4 Appellants phrased the questions as follows: Did the Circuit Court err in the following holdings:
1. Carolyn did not breach her fiduciary duty to Steven and Arthur.
2. Plaintiffs’ remedies are limited to an accounting, which was received in discovery, and a payment of Matthew’s tuition as contemplated by the Expression of Wishes (defined below).
3. Nancy was merely “a confidante, a sounding board and a helper to Carolyn” and not an agent or trustee subject to liability under the Maryland Trust Act or otherwise.
4. Attorney fees for Nancy and Carolyn are payable out of Trust assets, but those of Steven and Matthew are not.
5. Jonathan Lasley, Esq. was duly qualified as an expert to opine as to trust administration.
6. Steven was not qualified to testify as to rental income of Trust assets.
7. Pam Gogol could not testify to explain a chart of publicly available data gathered and collated from her employer.
8. Steven could not testify as to Decedent’s intentions in forming the Trust.
5 An Expression of Wishes was initially signed, but not dated, by decedent. The second document of the same name is nearly identical to the original and any difference is immaterial here.
6 Testimony at trial established that neither Carolyn nor Nancy had a strong relationship with Steven at any relevant time.
7 There are several Trust properties that Carolyn and Nancy were transferred a fractional interest in as a means to lower taxes.
8 Because, as we shall explain, we conclude that the January Order constitutes a final judgment, we do not address appellees’ argument that the January Order does not fall within the narrow exceptions to the final judgment rule.
9 Appellants provide a list of additional alleged breaches of fiduciary duty, but do not fully develop these arguments. Specifically, appellants contend that Carolyn also breached her fiduciary duty by: (1) committing waste; (2) engaging in self-dealing; (3) administering the Trust in a way that presented a conflict of interest; (4) mismanaging Trust assets; (5) failing to provide Trust documentation and information; and (6) failing to follow the Declaration, as modified by the Expression of Wishes. Mindful of our role, we do not endeavor to make appellants’ arguments for them. Accordingly, we do not fully address these arguments here.
10 Appellants argue that the Maryland Trust Act should also apply in this case. In 2014, the General Assembly passed the Maryland Trust Act (“the Act”). Md. Code (1974, 2022 Repl. Vol.), § 14.5-101, et seq. of the Estates and Trusts Article (“ET”). “The Act ‘provides a more comprehensive codification of the law of trusts within the Maryland Code. It partially codifies the existing law in Maryland governing trusts, but also contains modifications and additions to existing law.’” In re Tr. Under Item Ten of Last Will & Testament of Lanier, 262 Md. App. 396, 419 (2024) (quoting Hector v. Bank of N.Y. Mellon, 473 Md. 535, 561 (2021)). The Act “applies to all trusts created before, on, or after January 1, 2015[.]” ET § 14.5-1006(a)(1). Further, “[a] rule of construction or presumption provided in [the Act] applies to trust instruments executed before January 1, 2015, unless there is a clear indication of a contrary intent in the terms of the trust[.]” ET § 14.5-1006(a)(4). The Act, however, does not apply to “judicial proceedings concerning trusts commenced before January 1, 2015[,]” or to “act[s] done before January 1, 2015[.]” ET § 14.5-1006(a)(3), (5). Here, some of the challenged actions occurred prior to January 2015. Moreover, appellants do not cite to a particular provision of the Act for us to determine whether it involves a rule of construction or presumption that would, nevertheless, be applicable to this judicial proceeding. Accordingly, we decline to grapple with the applicability of the Act to the present case.
11 Appellants reference both the Restatement (Third) of Torts and the Restatement (Second) of Trusts in their brief. Appellants, however, do not make clear when they are citing the Restatement (Second) of Trusts. Moreover, appellants’ table of contents does not list the Restatement (Second) of Trusts provisions to which the brief refers. After thoroughly reviewing both Restatements, it appears that the only Restatement (Third) of Torts provision to which appellants cite is Section 16; all other citations appear to be to the Restatement (Second) of Trusts. Our recent case law on the subject, however, has cited to the Restatement (Third) of Trusts. See In re Tr. Under Item Ten of
Last Will & Testament of Lanier, 262 Md. App. at 420-24. Accordingly, we rely here on the parallel provisions of the Restatement (Third) of Trusts.
12 Additionally, appellants cite provisions of the Restatement of Trusts pertaining to a trustee’s duty to furnish information about the trust to beneficiaries. See Restatement (Third) of Trusts § 82. Appellants, however, fail to explain how any such breach caused harm to Steven or Arthur. Because harm to the beneficiary is a required element in a breach of fiduciary duty claim, we decline to address whether Carolyn breached her duty to provide information concerning the Trust to Steven or Arthur.
13 Appellants argue that Mr. Lasley was improperly admitted as an expert on trust administration. Because, as we shall explain, appellants waived their challenge to Mr. Lasley’s expert witness designation, we find no error in the trial court’s reliance on Mr. Lasley’s testimony.
14 Even if we were to consider this argument further, we discern no error. Indeed, at trial there was little, if any, evidence that Carolyn was benefitting from the Trust properties. Although there was evidence that Carolyn visited the Florida property, there was also evidence that she did so to perform maintenance and repairs on the property. Further, as noted supra, there was evidence that Carolyn neither stole nor misappropriated any trust assets and that she never “even [sought] to collect the trustee commissions to which she was entitled.” Moreover, that Carolyn consulted with Nancy in connection with her administration of the Trust was precisely what the Expression of Wishes contemplated: “My daughter, [Carolyn] if she is serving as Trustee . . . will consult with my daughter, Nancy . . . , in connection with decisions and actions.”
15 Section 3.02(b) of the Declaration provides for the creation of a trust for Arthur’s share to be distributed “for his benefit during his lifetime.” Specifically, the Declaration provides that “[t]he Trustee may pay such amounts of income or principal for the benefit of [Arthur] as is determined in the Trustee’s sole discretion to be proper” subject to one limitation: No distributions under this trust, or applications of property of this trust, shall be made or applied in such a manner as to supplant, impair or diminish benefits or assistance of any federal, state, county, city or other governmental entity for which the beneficiary may otherwise be eligible or which the beneficiary may be receiving. Similarly, the Expression of Wishes vests the trustee with discretion and evinces a similar intent: Arthur . . . is fully expected to work until he reaches normal retirement age . . . . He may, however, receive income from the Trust principal on a monthly basis to augment his income. This amount will not exceed an amount determined by my Trustee to be appropriate.
16 In their reply brief, appellants assert that Steven’s testimony about decedent’s intent was relevant because it “both establishes Carolyn’s malice, and rebuts her assertions that she was complying with Decedent’s wishes in not distributing anything to Arthur.” This argument was not raised in appellants initial brief, therefore, we do not address it. See, e.g., Jones v. State, 379 Md. 704, 713 (2004) (explaining that we “ordinarily will not consider an issue raised for the first time in a reply brief”).
17 Notably, appellants do not appear to challenge any acts of Nancy separate and apart from those of Carolyn which, as we concluded supra, did not constitute a breach of fiduciary duty. Even if, therefore, we were inclined to conclude that Nancy was an agent of the Trust, appellants allege no acts to which additional liability would attach.
18 Appellants frame their question as challenging the trial court’s conclusion that “[a]ttorney fees for Nancy and Carolyn are payable out of the Trust assets, but those of Steven and Matthew are not.” In their opening brief, however, appellants only argue that the trial court abused its discretion in awarding Nancy attorneys’ fees payable out of the Trust after concluding that she was not a trustee. Appellants do not raise the argument that Carolyn’s attorneys’ fees should not be payable out of the Trust until their reply brief. We, therefore, limit our review to the challenge to the trial court’s conclusion that Nancy was entitled to have her attorneys’ fees paid out of the Trust. See, e.g., Jones, 379 Md. at 713.
19 In their brief, appellants incorrectly cite the Restatement (Third) of Torts for this proposition. The language which appellants quote, however, comes from the Restatement (Third) of Trusts.
21 Additionally, appellants contend that the expert opinions to which Mr. Lasley testified were not properly supported by legal precedent. Appellants, however, do not cite to where in the record Mr. Lasley made these allegedly unsupported opinions. Accordingly, we decline to address this argument. See Ruffin Hotel Corp. of Md., Inc. v. Gasper, 418 Md. 594, 618 (2011) (“[A]ppellate courts cannot be expected to either (1) search the record on appeal for facts that appear to support a party’s position, or (2) search for the law that is applicable to the issue presented.”).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Prince George’s County Circuit Court’s monetary award of $325,450 and an attorney’s fee award of $20,000 to wife. The circuit court should not have counted husband’s Discover Bank accounts as marital property; did not classify real properties explicitly as marital, nonmarital or partly marital and partly nonmarital and its valuation of the marital portion of the properties’ equity values derived from miscalculations. Because the monetary award was vacated, the attorney’s fee award was also vacated.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
all interest, rents, and profits which may accrue” from that property, which “shall remain forever free of claim” by Wife. Exhibit 1 listed certain real properties and bank accounts that are pertinent to this appeal:
13908 Carlene Drive, in Upper Marlboro (“Carlene Drive”) 6505 100th Avenue, in Lanham (“100th Avenue”) 9110 5th Street, in Lanham (“5th Street”)1 Bank of America Savings Bank of America Checking SECU Savings SECU Checking2
The agreement stated as well that “marital property acquired after marriage shall remain subject to division, either by agreement or by judicial determination.”
The parties married seven days later, on July 17, 2009, and lived together at Carlene Drive. Wife rented the basement of their home for her licensed daycare business and deposited her income into a joint marital account. Their union dissolved after Husband’s unsubstantiated accusations of infidelity. On or around January 26, 2017, he evicted Wife from their home.
Khamisi Easton (“Husband”) and Tamara Easton (“Wife”) married in July 2009. The marriage began to fall apart in 2016 and ended on August 1, 2024, when the Circuit Court for Prince George’s County issued a Judgment of Absolute Divorce. In that judgment, the court counted as marital property the equity value of three homes that the parties’ prenuptial agreement had defined as nonmarital property; a 2022 BMW i4 that Husband said he purchased during the marriage using a Home Equity Line Of Credit (“HELOC”) secured by equity in one of the excluded homes; and two Discover Bank accounts that Husband had closed during the divorce. The court granted Wife a monetary award of $325,450 and an attorney’s fee award of $20,000. Husband challenges the court’s determination of marital property and award of attorney’s fees. We vacate the monetary award and the attorney’s fees award and remand this matter to the circuit court for further proceedings consistent with this opinion.
I. BACKGROUND
On or around July 10, 2009, Husband and Wife executed a prenuptial agreement. The agreement provided, in relevant part, that “[a]ll property, assets, or liabilities” that belonged to Husband, as set forth in Exhibit 1 of the agreement, “shall be, and shall forever remain, [his] personal estate, including
A few months before their separation, Wife had brought an action against Husband for equitable relief, case no. CAL16-36414. She alleged that Husband had promised to put her name on the Carlene Drive deed in return for her contributions to its expenses. She alleged further that she had paid all the utility expenses for the home, had made improvements to it, and had given Husband access to funds to pay down the mortgage and other expenses associated with the property in accordance with their agreement. She claimed that Husband’s misleading statements had caused her to enter into the prenuptial agreement with limited information. Wife asked the circuit court to place Carlene Drive into a constructive trust (Count I), issue a monetary judgment to avoid Husband’s unjust enrichment (Count II), and vacate the prenuptial agreement (Count III). The parties agreed to dismiss the first two counts, and the court held the third count in abeyance pending further divorce proceedings.
Then on February 1, 2017, Wife filed a Complaint for Limited Divorce and Alimony, case no. CAD17-02880. In response, Husband filed a Complaint for Absolute Divorce or, in the Alternative, Counter-Complaint for Limited Divorce. On December 28, 2017, the parties filed a joint property statement. After a merits hearing, the court granted Wife a limited divorce and denied Husband’s request for absolute divorce as premature. At the conclusion of this litigation, the circuit court ordered Husband to pay Wife rehabilitative alimony and to pay $40,000 for her attorney’s
fees in addition to a $10,000 fee award contained in an earlier pendente lite order.
Meanwhile, Husband filed a Complaint for Absolute Divorce and Other Relief, case no. CAD19-042661. He asked the circuit court to ratify and incorporate the terms of the prenuptial agreement into any judgment of absolute divorce, to identify and value all their marital property, and to grant him a monetary award. Wife filed a Counter-Complaint for Absolute Divorce a few months later and requested, again, that the court vacate the agreement.
The circuit court held a merits hearing on Wife’s first action to set aside the prenuptial agreement (CAL16-36414). The court found that there had been “ample opportunity” for each party to seek counsel before entering the agreement. It found further that the properties had outstanding mortgage balances when Husband and Wife executed the agreement. The court concluded that the prenuptial agreement would not exclude any deductions to the mortgage balances that occurred during the marriage and didn’t originate from “interest, rents, and profits which may accrue” from the properties:
COURT: So any changes between 2009, the date that [the prenuptial agreement] was executed, to whenever [the absolute divorce] matter is heard in a subsequent hearing, unless it is derived from interest, rents, or profits any deductions would not be included as part of this agreement. So, any payments that were made to lessen the loan amount aside from any interest, rents, or profits would be considered marital property and would not be included in this prenuptial agreement. The court applied this logic to the bank accounts in the prenuptial agreement as well:
COURT: So . . . the balances of any Bank of America savings or checking accounts, any of those accounts as of July 10, 2009, the only [value] that would be added that would remain [Husband’s] property would be the interest that had accrued from that time, and that is what the Court understands as the parties understanding and acceptance.
Wife confirmed that she shared the court’s understanding of the agreement. The court explained the bounds of the prenuptial agreement to Husband after he expressed confusion about the status of the properties:
[HUSBAND]: I’m a little confused in regards to the properties that you mentioned.
COURT: Okay. The agreement stated that, in paragraph 1, these are nonmarital assets so they are your properties because they were purchased prior to marriage. Any interest, rents, and profits that have been acquired from that nonmarital asset or assets would remain in your possession. However, anything exclusive of that, any—where marital funds may have been used to bring the mortgage loan down is not part of this agreement that was signed by the party. [The agreement] only entailed interest, rents, and profits so any mortgage that was paid either lump
sum or monthly is not part of this agreement that the parties had signed. That doesn’t mean the property in [and] of itself does not—it’s still your property and its free and clear. But if there are— if the loans have been reduced the Court would need to know did that—were those deductions derived from interest, rents or profits. If not, that’s not what the parties agreed. Do you understand?
[HUSBAND]: Yes.
Husband took a recess to consult with his counsel. When they returned, his attorney restated the bounds of the agreement as he had explained it to Husband:
[COUNSEL FOR HUSBAND]: Mr. Easton, with regards to these real properties the agreement is that they are protected and your properties, but to the extent that the mortgages have been paid down during the marriage by funds that can not be characterized as interest, rents, or profits, that is what—this agreement does not cover that. So to the extent that these funds that you used to pay down the mortgage during the marriage can be characterized as interest, rents, and profits, you’re protected. But to the extent that they can not fit into those categories, that’s an issue for another day. This agreement doesn’t cover that. Is that fair, Judge?
COURT: Yes, that is.
[COUNSEL FOR HUSBAND]: Okay.
COURT: And that’s your understanding, Mr. Easton? [HUSBAND]: Yes, Your Honor.
The court placed the parties’ agreement on the record and found the prenuptial agreement valid and enforceable. At that point, the unadjudicated issues were the divorce, the marital award, and both parties’ requests for attorney’s fees. The court consolidated Wife’s action for limited divorce (CAD17-02880) and Husband’s suit for absolute divorce (CAD19-042661) and scheduled trial for February 21, 2023. The court continued the trial date so that the parties could supplement discovery with updated financial information about the fair market values of the properties and the sources of the funds used to pay down each mortgage.
The trial took place on June 14, 2023. Jerome Bell testified as Wife’s expert in real estate and forensic appraisals.3 Mr. Bell concluded to a reasonable degree of certainty that the fair market value of Carlene Drive on July 10, 2009 was $375,000. He appraised its fair market value as $420,000 on October 21, 2017 and $645,000 on February 26, 2023. Mr. Bell testified that the fair market value of 100th Avenue was $210,000 on July 10, 2009, $290,000 on October 26, 2017, and $384,000 on February 26, 2023. Lastly, he appraised the fair market value of 5th Street as $247,000 on July 10, 2009, $285,000 on October 20, 2017, and $385,000 on February 23, 2023.4 Wife submitted the appraisal reports into evidence.
Husband testified that he purchased the Carlene Drive parcel in 2006 and contracted to have the house built on it between 2006 and 2007. He purchased 100th Avenue in 2001 for $130,000 and 5th Street in 2007, and he took out mortgages on all three properties. He submitted into evidence the original deeds for each property and the
loan settlement sheets for Carlene Drive and 5th Street. The evidence revealed that he purchased the Carlene Drive parcel for $250,000 after receiving a land advance on a construction loan and making a down payment of $101,171.48. The evidence revealed also that he purchased 5th Street for $305,000 after making a down payment of $45,266.86.
Husband testified about the prenuptial agreement, his rental income, and his mortgage payments. He said that he lived at Carlene Drive with his daughter and a tenant who paid rent to live in the basement, rented 100th Avenue and 5th Street to tenants, and deposited all rental income into his bank accounts. He testified that he used rental income to pay each mortgage; that he paid all mortgages from BOA #7438; that BOA #7438 held direct deposits of his wages during the marriage as well; and that he transferred funds from his joint account with Wife, including her rent payments for Carlene Drive, into BOA #7438. Later, he said that he deposited rental payments into both his BOA and SECU accounts. To support these claims, Husband submitted into evidence bank statements to trace the rent payments he received, two documents that he prepared— the first listed the rental income he received compared to the mortgage payments he made between 2009 and 2017 and the second listed his mortgage payments from 2001 to 2009 and a paystub indicating that his monthly mortgage obligation for 5th Street was $1,700.76 in 2008.
Next, Husband submitted evidence through which he sought to establish the mortgage balances outstanding at the time of marriage and separation. His documents stated that Carlene Drive had an outstanding balance of $408,660.65 at the end of 2009 and 100th Avenue had a balance of $107,833.77 in 2007, and he testified that 5th Street had a loan of $275,000 in 2009, an amount Wife verified through her own evidence. Relying on his representation in the parties’ joint 2017 statement, Husband testified that the mortgage balance of Carlene Drive in 2017, when the couple separated, was $388,365 and that he had paid off the mortgage for 100th Avenue by then. He submitted a mortgage statement dated January 10, 2017, demonstrating that 5th Street had an outstanding mortgage balance of $257,892.21. He said he paid off that mortgage in 2017 with money he had received from his father (“Father”). He submitted evidence that he deposited $62,940.00 into SECU #1544 in October 2014 and said he received a second payment of $33,437.00 from Father the following month. Husband testified that Carlene Drive still had an outstanding mortgage balance that he continued to pay from BOA #7438.
Husband provided evidence about his BMW and his Discover Bank Accounts. He asserted that his BMW was nonmarital because he had used rental income to purchase it after the couple separated. He said he used a HELOC secured by equity in Carlene Drive for the purchase. He testified that he closed Discover account #7186 in 2016 or 2017 and used those funds to pay for attorney’s fees and the mortgage on 5th Street. He said that he used money from his bank accounts, retirement accounts, and life insurance to pay Wife $50,000 in attorney’s fees and $72,000 in alimony and to pay his own attorney.
Wife testified about the couple’s finances during the marriage also. She said Husband would take money from their joint account as her rent payment and that her wages contributed to updates to Carlene Drive and to paying down the mortgages on the properties. She submitted into evidence records from Husband’s Bank of America accounts, from two jointly held bank accounts, from Husband’s SECU accounts, and from his three Discover Bank accounts. And she established that between March 15, 2019 and June 12, 2023, she incurred $42,934.00 in attorney’s fees.
After trial, the parties filed written closing arguments and an updated joint statement. Their joint statement stipulated that Carlene Drive had an outstanding mortgage balance of $259,126 and that the mortgages for 100th Avenue and 5th Street had a zero balance.
On August 1, 2024, the circuit court granted Husband a judgment of absolute divorce from Wife, awarded Wife a monetary award of $325,450, and ordered Husband to pay $20,000 for attorney’s fees. The court determined that the total value of the marital property was $1,057,455.97, including marital values in the properties of $259,126 (Carlene Drive), $151,771.43 (100th Avenue), and $353,921.00 (5th Street). The court found that Husband hadn’t produced adequate evidence to prove that “interest, rents or profits were derived” from Carlene Drive or that any interest that accrued from the bank accounts named in the prenuptial agreement were nonmarital “as both parties deposited into the accounts during the marriage.” By title alone, the court determined that Husband possessed 97% of the marital property, so it adjusted the equities to award Wife 35% of the marital property less the rehabilitative alimony Husband had paid already. With regard to the attorney’s fees award, the court noted that the case had “lingered for many years” and that even though Wife had contested the prenuptial agreement, the court had to address several motions and hold multiple proceedings because of Husband’s “repeated delay and noncompliance with the Court’s orders.” Based on the “significant disparity in income” and the required statutory factors, the court determined that a fee award was appropriate.
Husband noted a timely appeal.
II. DISCUSSION
Husband presents two main issues that we rephrase slightly: (1) did the circuit court err in counting the properties, his BMW, and his Discover Bank accounts as marital property and (2) did the court award attorney’s fees to Wife justifiably.5 For the reasons detailed below, we vacate the monetary award and the attorney’s fee award and remand this matter to the circuit court for additional proceedings consistent with this opinion.
Whether “all or a portion of an asset is marital or nonmarital property” and the value of each item of marital property are questions of fact. Innerbichler v. Innerbichler, 132 Md. App. 207, 229 (2000); Flanagan v. Flanagan, 181 Md. App. 492, 521 (2008). We will not disturb a circuit court’s factual determination unless it is clearly erroneous. Flanagan, 181 Md. App. at 521. Because circuit courts have broad discretion to award attorney’s fees, we consider
whether the award was an abuse of discretion and will not set it aside “unless the exercise of discretion was arbitrary or the judgment was clearly wrong.”
Malin v. Mininberg, 153 Md. App. 358, 435–36 (2003).
A. The Marital Award Didn’t Classify Or Determine The Marital Value Of The Properties Or The Discover Bank Accounts Correctly.
1. The circuit court didn’t classify the properties explicitly as marital, nonmarital, or partly marital and partly nonmarital and its valuation of the marital portion of the properties’ equity values derived from miscalculations.
Husband argues first that the circuit court erred when it failed to decide which properties were marital, nonmarital, or partly marital and partly nonmarital (i.e., mixed) and, instead, counted them as “wholly” marital. Wife asserts that the court didn’t classify any of the properties as “100% marital” because it relied on (her) calculations that sought to account for the properties’ mixed status. Because the circuit court didn’t classify the properties explicitly, we understand Husband’s confusion and agree that it failed to make a proper determination on the record.6
Maryland law defines marital property as “property, however titled, acquired by [one] or both parties during the marriage.” Md. Code (1999, 2019 Repl. Vol.) § 8-201(e) (1) of the Family Law Article (“FL”). If division of marital property strictly according to title would lead to inequity, the court may adjust the equities through a monetary award. Flanagan, 181 Md. App. at 519. Before doing so, the court must undertake a three-step analysis. Alston v. Alston, 331 Md. 496, 498–99 (1993); see FL §§ 8-203–8-205. First, if there is a dispute about what is or isn’t marital property, the court must determine which property items are marital. FL § 8-203(a). Next, the court must determine the value of each marital property item. FL § 8-204(a). Then, the court “may . . . grant a monetary award . . . as an adjustment of the equities and rights of the parties concerning marital property.” FL § 8-205(a).
Property that doesn’t fit neatly into the marital or nonmarital category can be partly marital and partly nonmarital “in accordance with the source of the funds used to acquire it.” Kline v. Kline, 85 Md. App. 28, 41 (1990). In the context of homeownership, nonmarital property can become partly marital if a spouse uses marital funds toward its mortgage payments. See id. (“[T]o the extent that [marital] payments reduced the balance due on the mortgage” we consider the property to have been acquired during the marriage); Noffsinger v. Noffsinger, 95 Md. App. 265, 286 (1993) (“Mortgage payments made during the marriage . . . were marital contributions, derived from earnings that were clearly marital income.”). When that happens, courts can characterize the formerly nonmarital property “as part nonmarital and part marital” depending on “the source of each contribution as payments are made.” Harper v. Harper, 294 Md. 54, 80 (1982). Importantly, “the time at which legal or equitable title to or possession of the property is obtained” doesn’t dictate the classification of the marital, nonmarital, or mixed status of a given property item. Id.
In this case, the circuit court’s order didn’t classify the properties clearly. It is undisputed that Husband purchased and made nonmarital investments in the properties before the marriage. He purchased the Carlene Drive parcel, had the house constructed, and made construction and mortgage loan payments. He made down payments and loan payments toward the purchases of 100th Avenue and 5th Street before the marriage. But the court’s opinion doesn’t state explicitly that the properties are partly marital and partly nonmarital, and it should have. Harper, 294 Md. at 80–82; Hoffman v. Hoffman, 93 Md. App. 704, 713–14 (1992).7 Nor did the court make express findings about the extent of Husband’s nonmarital investments relative to the investments made by the marital unit and the total investments in the properties. See id. These findings are essential to valuing the marital property available for equitable distribution accurately.
We recognize that the evidence at trial didn’t persuade the court that Husband’s mortgage payments derived exclusively from “interest, rents, and profits which [accrued]” from the properties and, thus, fell within the reach of the prenuptial agreement. Nonmarital property, especially that in the form of funds, can lose its nonmarital status when it’s mingled with marital property. See Golden v. Golden, 116 Md. App. 190, 203 (1997); Melrod v. Melrod, 83 Md. App. 180, 187–88 (1990); Murray v. Murray, 190 Md. App. 553, 572 (2010). Money is fungible, and without a detailed record of each dollar from rent money having been used to pay the rental property’s mortgage, mingling can convert nonmarital funds into marital funds. See Merriken v. Merriken, 87 Md. App. 522, 540 (1991) (“‘Since [appellant] commingled his income . . . no specific sum of money used to acquire property or reduce an indebtedness on any property can be traced to any source. This inability to trace property acquired during the marriage directly to a nonmarital source simply means that all property so acquired was marital property.’” (quoting Melrod, 83 Md. App. at 187)); Melrod, 83 Md. App. at 186 (“With respect to most of his properties, because of commingling of non-marital and marital income, [husband] could not directly trace any given payment of money to any specific source of funds.”). A spouse who claims that a nonmarital asset should retain that status despite commingling must be able to trace the asset directly to a nonmarital source. Melrod, 83 Md. App. at 188; Golden, 116 Md. App. at 205 (“[A]s to all of the value increases of property resulting from the expenditure of either party’s marital income . . . the party asserting that a portion is nonmarital bears the burden of tracing the expenditure to nonmarital funds.”). And if they can’t, the property at issue is marital. Noffsinger, 95 Md. App. at 282 (citing Melrod, 83 Md. App. at 187); Golden, 116 Md. App. at 205.
In this case, there is no dispute that marital and nonmarital funds were mingled in connection with these properties. Crediting Husband’s representation that the prenuptial agreement excluded BOA #7438 as nonmarital property, the parties agree that account held both rental income and marital property in the form of Husband’s wages and that Husband made mortgage payments on the properties from that account while they were married. As a result, Husband
carried the burden of untangling these funds and proving that he paid the mortgages exclusively from the “interests, rents, and profits” that accrued from the properties. See Melrod, 83 Md. App. at 188.
Husband argues that he traced his mortgage payments to nonmarital funds. Specifically, he claims that the spreadsheet he submitted into evidence demonstrated that the rental income he received for each property exceeded the monthly mortgage due and that he deposited the rent into the same bank account from which he paid each property’s mortgage. He contends that he has proven that direct tracing isn’t impossible and, therefore, the funds weren’t mingled to the point of causing the mortgage payments to lose their nonmarital status. In response, Wife asserts that Husband didn’t meet his burden because he couldn’t prove that the rental income he received exceeded the monthly mortgage payment obligation for each property.
We agree that Husband didn’t satisfy his burden of proving that the properties were fully nonmarital. Husband didn’t present a complete evidentiary picture of how his mortgage payments traced back to an exclusively nonmarital source. For example, he didn’t prove that the dollar-for-dollar amount of monthly rental income for 100th Avenue went out dollar-for-dollar as a payment to the mortgage lender for 100th Avenue. See Callahan & Ries, supra, § 13-9(d) (“‘Directly traceable’ means a dollar for dollar trace is required.”). Husband didn’t provide any evidence of or demonstrate a dollar-for-dollar match between the rent he received from his tenants at 100th Avenue and 5th Street and his payments toward those mortgages, or a dollar-fordollar match between the rent he received from tenants to lease the basement of Carlene Drive and his payments on the Carlene Drive mortgage. He submitted into evidence a spreadsheet that indicated that rental income came in and mortgage payments went out, but those flows don’t match the rental income to the mortgage payments dollarfor-dollar or prove that only rental income sourced those payments. If anything, it reveals that the aggregate amount of mortgage payments Husband made each month during the marriage exceeded the aggregate amount of rental income he received each month. The account Husband used to pay his mortgages held his earnings as well, and we question whether the rental income from Wife leasing only part of Carlene Drive could have covered the monthly mortgage completely. The record indicates to us, as it did to the circuit court, that funds other than rental income had to have covered the difference.
The four hundred pages of bank statements that Husband submitted into evidence did not draw a dollar-for-dollar connection between the rental income he received for each property and its corresponding mortgage payment. For example, some of the statements showed deposits of varying amounts into BOA #6941 followed by transfers of varying amounts into BOA #7438. But there is no dollar-fordollar match that connects the deposit of an alleged rent payment for a certain sum into BOA #6941 followed by a transfer of that sum to BOA #7438 and a payment of that exact sum out of BOA #7438 to the mortgage lender for the property.
Moreover, Husband didn’t submit any evidence about the rental income he received or establish facts about his monthly mortgage obligations sufficient to allow the court to trace the income to those payments. The record contained no evidence of the terms of the tenancies for each property, the number of tenancies, or their rental payment amounts, nor did it paint a complete picture of the monthly mortgage amounts due for each property during each year of the marriage. As the party seeking to keep the nonmarital property separated, Husband bore the burden of putting the pieces together, not the circuit court. And because he didn’t, the court could treat any mortgage payments made on the properties after July 17, 2009, and the equity built from those payments, as marital property. Noffsinger, 95 Md. App. at 282. The circuit court’s conclusion that Husband hadn’t traced the mortgage payments directly to a purely nonmarital source wasn’t clearly erroneous.
But even though the circuit court was right to treat mortgage payments made after July 2009 as marital property, the work didn’t end there. Husband contends that the court disregarded the nonmarital contributions he made and didn’t give him credit for the nonmarital portion of each property when it made the monetary award. He asserts entitlement to a “proportionate return of his investment” and asks us to remand the case and instruct the court to value his nonmarital contributions to the properties and credit him with those contributions by excluding them from the marital award. Unfortunately, we don’t know if Husband is right because the circuit court didn’t make findings about the nonmarital and marital portions of the equity values of the properties or state whether it credited Husband for his nonmarital investments. The properties were marital only to the extent that Husband paid down their mortgages using marital funds. See Kline, 85 Md. App. at 41, 46; Noffsinger, 95 Md. App. at 286. The court still had to determine which portions of their equity values were marital and nonmarital, and it didn’t. We discuss each property in turn.
a. Carlene Drive
In its opinion, the circuit court determined that the marital portion of the equity value of Carlene Drive was $259,126. It didn’t explain how it arrived at this value, but the number appears in joint statements filed before and after trial. In both, the parties stipulated that Carlene Drive had an outstanding principal mortgage balance of $259,126, the number listed in the opinion as the marital portion of Carlene Drive’s equity value in a column marked “[fair market value] less any liens/encumbrances.” This reliance solely on the mortgage balance was clearly erroneous. Harper v. Harper, 294 Md. 54 (1982) sets the groundwork for this analysis. Harper explains how courts should manage property that “[was] purchased and paid for in part before marriage and in part during marriage with nonmarital and marital funds.” 294 Md. at 81. In that case, husband purchased an unimproved parcel of land under a land installment contract before the parties married. 294 Md. at 57. He made all the loan payments before the marriage and continued to make those payments afterwards. Id. When he married wife, husband built a house on the land that became
their marital home. Id. at 57–58. The circuit court decided that both the land and the home were marital property and that each spouse was entitled to half of its value. Id. at 58–59. This Court agreed, reasoning that husband had equitable title to the land before the marriage and had acquired legal title only afterwards. Id. at 59–61. The Supreme Court disagreed and held that courts must classify a property with mixed status according to the source of funds used to acquire it. Id. at 80. Only then, it said, can a court classify and determine the value of the marital property subject to equitable distribution:
[A] spouse contributing nonmarital property is entitled to an interest in the property in the ratio of the nonmarital investment to the total nonmarital and marital investment in the property. The remaining property is characterized as marital property and its value is subject to equitable distribution. Thus, the spouse who contributed nonmarital funds, and the marital unit that contributed marital funds, each receive a proportionate and fair return on their investment. Id. Under Harper, Husband would be entitled to an interest in Carlene Drive in the ratio of his nonmarital investment to the total investments that have been made in the property. See id. at 80. And the source-of-funds analysis requires the court to calculate the nonmarital portion of the property. See Hoffman, 93 Md. App. at 714. As a result, we must vacate the monetary award and remand this matter for a determination of the marital and nonmarital portions of the equity value of Carlene Drive.
On remand, the court can take additional evidence or perform its calculation against the record developed at trial. The calculation used in Hoffman v. Hoffman, 93 Md. App. 704 (1992), may be instructive because it covers circumstances like this where an outstanding mortgage remains on the property. Id. at 714–16. In that case, husband contributed $8,997.35 of nonmarital funds to purchase the marital home, then the couple purchased the home for $74,500. Id. at 714–15. The parties agreed that the home had a fair market value of $110,000 and an outstanding mortgage balance of $56,876 at the time of trial. Id. at 715. After dividing the nonmarital investment ($8,997.35) by the purchase price ($74,500) the court determined that husband’s nonmarital investment amounted to twelve percent of the purchase price and that twelve percent of the current fair market value was $13,200. Id. After deducting the nonmarital portion ($13,200) and the outstanding lien ($56,876) from the fair market value ($110,000), the court concluded that the marital property available for equitable distribution was $39,924. Id.
To summarize, we vacate the monetary award and remand this matter to the circuit court to determine the marital and nonmarital portions of the equity value of Carlene Drive, to ensure that Husband receives “credit for the net equity attributable to his investment of nonmarital funds,” Noffsinger, 95 Md. App. at 289, and to make findings to that effect.
b. 100th Avenue
In its opinion, the circuit court determined that the marital
portion of the equity value of 100th Avenue was $151,771.43, a number it took from Wife’s calculation. Wife took two steps to reach that value. First, because neither party had established 100th Avenue’s outstanding mortgage balance in July 2009, Wife agreed to accept its “principal balance [of] $83,000,” in 2013 to represent the 2009 balance, even though that number wouldn’t account for all the mortgage payments made during the marriage. Second, Wife proposed using the calculation set forth in Jandorf v. Jandorf, 100 Md. App. 429 (1994), “to determine [100th Avenue’s] marital equity,” being the only property with equity existing at the beginning of the marriage.
We agree that Jandorf is a useful guide for ascertaining the marital and nonmarital portions of a property, like 100th Avenue, with a zero-mortgage balance. In that case, husband inherited a house from his mother that he used as the marital home. 100 Md. App. at 433. At the time of his mother’s death, the property had a fair market value of $40,500 and an outstanding mortgage of $7,000. Id. Husband and wife paid that mortgage completely using marital funds. Id. At the time of trial, the fair market value of the property was $110,000. Id. at 435.
On review, we determined the proper formula for calculating the marital and nonmarital portions of a property that had equity before the marriage that grew after the marriage. Jandorf, 100 Md. App. at 437–38. We determined that the proportions of nonmarital equity ($40,500) and marital equity ($7,000) to the total equity in the property was, respectively, 85.3% ($40,500/$47,500 x 100) and 14.7% ($7,000/$47,500 x 100). Id. at 438. Multiplying the fair market value of the property ($110,000) by these percentages, we concluded that $93,830 of its fair market value was nonmarital and $16,170 of it was marital. Id.
Wife’s calculation in this case, as relied on by the court, was erroneous. The first problem is Wife’s reliance on $83,000 to represent the outstanding mortgage in 2009. She points out correctly that neither party established the actual mortgage amount in place at that time. Husband submitted into evidence a document indicating that his mortgage balance was $107,833.77 in 2007, and Wife’s evidence revealed a principal balance of $83,392.95 when Husband refinanced his mortgage in February 2013. But even if the court accepted the principal balance of the mortgage in February 2013 for purposes of this calculation, the correct number would have been $83,392.95.
The second problem is that Wife’s calculation didn’t follow the Jandorf formula. Wife divided the 2013 mortgage balance by the property’s fair market value in 2009, as established by her expert. That calculation is inconsistent with Jandorf. To perform the calculation correctly, the court would need to know three facts: (1) the equity Husband built in 100th Avenue through his loan payments before the marriage, which we represent as nm;8 (2) the contributions made by the marital unit, represented as m;9 and (3) the fair market value of 100th Avenue at the time of trial, which is in the record.10 From there, the court can compute the ratio of marital investments to total investments by dividing the marital contributions by the sum of the marital payments and Husband’s nonmarital investments. See Harper, 294
Md. at 81–82; Jandorf, 100 Md. App at 437–38. Then the court can multiply the fair market value by that number to get the marital portion of the equity value of the home, or M. See id. at 437–38. Visually, the calculation would be:
+ ���� = M
The court can perform a similar calculation to determine the nonmarital portion of the equity value of 100th Avenue, NM:
With this guidance, we vacate the monetary award and remand for further proceedings.
c. 5th Street
In its opinion, the circuit court determined that the marital portion of the equity value of 5th Street was $353,921, a number carried over from Wife’s calculation. The evidence submitted at trial reveals that Husband purchased 5th Street in 2007 for $305,000 after making a down payment of $45,266.86. On June 3, 2008, Husband refinanced his mortgage with CitiMortgage, Inc., when the unpaid principal balance was $269,515.89. He refinanced the mortgage again on February 21, 2013, when the principal loan balance was $273,921.08. According to the appraisals of record, the fair market value of 5th Street was $247,000 around the time the parties married and $384,000 around the time of trial.
Wife’s calculation didn’t track Jandorf. Because 5th Street had zero equity when the parties married in 2009, Wife used the unpaid mortgage balance from Husband’s 2013 refinance ($273,921) to calculate the contributions of the marital unit, then subtracted that amount from Husband’s purchase price ($305,000) to conclude that he paid $31,079 in mortgage payments before their marriage. Then Wife subtracted Husband’s nonmarital payments ($31,079) from 5th Street’s fair market value in 2023 ($384,000)11 to determine that the marital portion of the property’s equity was $353,921. That calculation isn’t quite right. The parties agree that Husband paid off the 5th Street mortgage by the time of trial. By adopting Wife’s calculation, the court appeared to accept also that the marital payments on the loan amounted to $273,921, m, that Husband made $31,079 in payments before the marriage, nm, and that the 2023 fair market value of the property was $384,000. From that, the correct calculation would be:
$273,921
($273,921 + $31,079) = 0.898
From there we multiply the fair market value ($384,000) by 0.898 and determine that the marital portion of the total equity value of 5th Street is $344,832, or 89.8%, and the nonmarital share is $39,168, or 10.2%.
Husband argues that the circuit court disregarded the fact that Father gifted him money which he used in turn to pay off the 5th Street mortgage. A gift is the “voluntary transfer of property to another without compensation.” Gift, Black’s Law Dictionary (12th ed. 2024). The donor (i.e., giver) must have a clear and unmistakable intent “‘to
permanently relinquish all interest in’” the gift, there must be actual delivery, and the donee (i.e., receiver) must accept it. Fantle v. Fantle, 140 Md. App. 678, 689 (2001) (quoting Dorsey v. Dorsey, 302 Md. 312, 318 (1985), superseded on other grounds by statute, Marital Property Act, 1994 Md. Laws, Chap. 462).
We question whether these payments were gifts. At trial, Father testified that Husband loaned KB & Dako Properties, LLC (“KB & Dako”) $62,000 in 2005 to buy a property in Washington D.C. Father said he started KB & Dako with his wife and described it as a “family business,” but said he didn’t know whether Husband was an owner. He testified that KB & Dako sold the property in 2014 and reimbursed Husband from the proceeds of the sale. Husband submitted into evidence a settlement sheet for that transaction dated October 9, 2014 that included a $62,000 “loan repayment” to him in the settlement charges for the transaction, leaving KB & Dako with $260,583.32 in sale proceeds. But the company’s repayment of a loan to Husband wouldn’t have transferred its interest in property to him. See Fantle, 140 Md. App. at 689. Father testified also that he gave Husband $33,000 a few months later as “a gift.” The settlement sheet in evidence included a “Partners/Investor Investment Analysis” from KB & Dako, indicating that Husband, in his capacity as partner or investor, made a capital investment of $62,000 in the company and loaned it $48,021.90. The real estate sale seems to have been part of a liquidation process—using the sale proceeds and its cash on hand, KB & Dako paid Husband back $48,021.9012 and divided the remaining money by three, resulting in a $33,437 distribution to Husband. Father testified that when the company closed, he made a capital distribution to Husband and “returned . . . the money that he loaned.”
And even if the circuit court had considered KB & Dako’s $33,437 payment a gift, the evidence adduced at trial didn’t establish that Husband applied it to the 5th Street mortgage. At his deposition and at trial, Husband said he put Father’s payments into a Certificate of Deposit account, SECU #1363, and closed it in 2017 to pay off the mortgage. The record contains SECU #1363 bank statements that cover the periods of November 2016 and December 2016 but neither reveals a payment, withdrawal, or transfer of money from that account. At his deposition, Husband said that he closed Discover #5140 to pay off the mortgage and said this again at trial. The record contains bank statements revealing that he deposited $40,000 in Discover #5140 on March 10, 2016 and that he withdrew $40,213.75—all the funds in the account—via official bank check on February 15, 2017. But Husband didn’t provide a corresponding mortgage record showing a payment for this amount or show where that bank check went. Husband submitted evidence indicating that his mortgage balance was $257,892.21 in 2017 and at his deposition, he testified that he paid off the mortgage after Wife filed her complaint for limited divorce in February 2017, but he doesn’t identify record items that cement the connection between Father’s payment and his satisfaction of the mortgage. Again, it is up to Husband to put the evidentiary pieces together to form a picture for the court that supports his claim to nonmarital property status.
Because he didn’t, the circuit court didn’t have to factor Father’s payment into its assessment of the marital portion of the equity value of 5th Street.
2. The circuit court didn’t err in counting Husband’s BMW as marital property because Husband didn’t prove that he purchased the car using a HELOC secured by equity in Carlene Drive.
Husband argues next that the circuit court erred when it counted his 2022 BMW i4 as marital property. He maintains that he purchased the BMW using nonmarital funds, referring to a HELOC secured by equity in Carlene Drive. Wife responds that the equity in Carlene Drive is partly marital, so the BMW is marital property because it was funded in part by marital property. We hold that the circuit court classified the full value of the BMW as marital property correctly.
At trial, Husband testified that he used a HELOC secured by equity in Carlene Drive to buy a 2022 BMW i4 for approximately $55,000. At his deposition, he said that SECU issued the HELOC that he used for this purchase and that he took that HELOC out in 2019. At trial, Wife asserted that the BMW was marital property because Husband bought it during the marriage. And in her Closing Argument Memorandum to the circuit court she challenged Husband’s assertion that he used a HELOC to buy the BMW because “he did not submit any documentation to verify his claims.” We agree with Wife.
Husband didn’t provide the court with any documentation associated with the BMW purchase or even specify the date he bought the car. He provided approximately one hundred and fifty pages of SECU bank statements, but most were incomplete. None of those statements proved that Husband took out a HELOC or borrowed against an existing HELOC for an amount around $55,000. And Husband hasn’t provided any documentation that he used the equity in Carlene Drive to secure the HELOC that SECU issued. For these reasons, the circuit court’s classification of the BMW as marital property wasn’t clearly erroneous.
3. The circuit court should not have counted Husband’s Discover Bank accounts as marital property.
Husband’s third argument is that the circuit court included Discover Bank accounts #5140 and #7186 as marital property improperly. He asserts that he closed both accounts in 2017 before the parties divorced and asks us to remand this matter to the circuit court with instructions to exclude those accounts for purposes of the monetary award. In response, Wife suggests that the court didn’t credit Husband’s testimony that he spent down and closed the accounts or used them to pay the 5th Street mortgage and Wife’s attorney’s fees. We disagree. Husband testified that he used the money in those accounts, in part, to pay Wife’s attorney’s fees and alimony. That use, the court reasoned, could not serve as a ground for a dissipation finding, and the court found that Husband hadn’t dissipated those assets. Having found that Husband hadn’t dissipated those assets, and there being no dispute that he had closed the Discover accounts before the date of, the circuit court shouldn’t have included them as marital property.
Typically, if a bank account is closed prior to the date of divorce, it is not subject to equitable distribution. Williams v. Williams, 71 Md. App. 22, 35 (1987) (“The record supports the contention that the [bank] accounts had been closed and, therefore, did not exist on the date of the divorce. The exhibits produced by both parties reflect that this is so. In fact, they reveal that those accounts were closed at least two years before the divorce proceedings. Consequently, the accounts are not marital property in the consideration of which a monetary award may be based.”); see also Melrod, 83 Md. App. at 194–95 (circuit court did not err when it excluded husband’s share of proceeds from the sale of his real estate partnership from marital property award where sale occurred before the divorce and partnership interest didn’t exist at time of divorce); Callahan & Ries, supra, § 13-11 (dissipation is the exception to the general rule that “property not in existence as of the date of the divorce cannot be marital property.” (cleaned up)). To support her dissipation claim, Wife submitted into evidence bank statements from Discover accounts #7186, #5140, and #5133.13 Each statement showed that Husband closed the accounts in 2016 and 2017, before the parties divorced. In its opinion, the circuit court found that Husband hadn’t dissipated his assets; yet it determined that Discover #7186 and #113814 were marital property, assigned the former a value of $15,172.45, and valued the latter at $40,310.28. This determination was clearly erroneous, see Melrod, 83 Md. App. at 194–95 (without evidence that husband dissipated his share of real estate proceeds, “there was no basis for considering the proceeds as marital property”), and we reject Wife’s suggestion that a $55,482.73 difference in the marital property calculation amounts to harmless error. We vacate the monetary award and remand this matter to the circuit court to recalculate it without factoring in the Discover Bank accounts.
B. Reconsideration Of The Attorney’s Fee Award Is Necessary Because Of Our Vacate And Remand Of The Monetary Award.
Lastly, Husband argues that the circuit court didn’t consider his financial status or the attorney’s fees he had incurred throughout the divorce when it decided to grant Wife attorney’s fees. He contends also that the court failed to consider how Wife had prolonged litigation and added to court costs when she challenged the validity of the prenuptial agreement even after the court deemed it valid and enforceable. And he states that the court failed to provide a “sufficient rationale” for the award, including why he should have to pay another round of attorney’s fees and what specific conduct warranted this outcome. Wife responds that the court considered the parties’ incomes, expenses, and financial conditions and developed a sufficient record to substantiate its attorney’s fee award.
In a proceeding to dispose of marital property, circuit courts can order a party to pay “an amount for the [other party’s] reasonable and necessary expense of prosecuting or defending the proceeding.” FL § 8-214(b). Before doing so, the court must consider “(1) the financial resources and financial needs of both parties; and (2) whether there was
substantial justification for prosecuting or defending the proceeding.” Id. § 8-214(c). If the court finds that either party wasn’t substantially justified in bringing or defending against the proceeding and there is no good cause for the lack of substantial justification, the court must “award to the other party the reasonable and necessary expense of prosecuting or defending the proceeding.” Id. § 8-214(d).
Because we have vacated the monetary award, we must vacate the attorney’s fee award for reconsideration on remand. See, e.g., Flanagan, 181 Md. App. at 544. We notice, however, that the circuit court’s award didn’t include a finding as to the reasonableness of the fees incurred by Wife.
See Collins v. Collins, 144 Md. App. 395, 449 (2002) (“The reasonableness of the attorney’s fees must be analyzed once evidence is presented in favor of attorney’s fees.”). That
discussion would include consideration of the “labor, skill, time and benefit received.” Id. The court’s opinion suggests that both parties lacked substantial justification for initiating or defending certain aspects of the proceedings at different times but only awarded attorney’s fees to one of the parties. That treatment caught our attention because of FL § 8-214(d). See supra. And the opinion doesn’t explain how the unjustified conduct bore out in the proportion of attorney’s fees awarded or make findings about Husband’s ability to pay the fees, Wife’s financial resources, or either party’s needs. See Flanagan, 181 Md. App. at 546. Because the order leaves questions unanswered, the circuit court will need to address them if it decides to award attorney’s fees on remand.
JUDGMENT VACATED WITH RESPECT TO MONETARY AWARD AND ATTORNEY’S FEES; CASE REMANDED TO THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE DIVIDED EVENLY.
FOOTNOTES
1 We’ll refer collectively to Carlene Drive, 100th Avenue, and 5th Street as the “properties.”
2 The prenuptial agreement didn’t specify the bank accounts by account number. Husband represented to the court that the accounts referred to the following bank accounts: Bank of America Savings – BOA #6941; Bank of America Checking – BOA #7438; SECU Savings – SECU #1544; and SECU Checking – SECU #4252 and #3056.
3 Mr. Bell explained that forensic appraisal is the process of assessing the value of real estate on a retrospective date from research of comparable sales, the perceived condition of the property, public records, and Multiple Listing Service data.
4 Mr. Bell appears to have testified to this last amount mistakenly because his report appraises the house at $384,000.
5 Husband phrased the Questions Presented in his brief as follows:
Did the Circuit Court for Prince George’s County err in determining that three properties named in a valid prenuptial agreement are wholly marital property for purposes of monetary award?
Did the Circuit Court for Prince George’s County err in granting an award of attorney’s fees to the Appellee?
Wife did not state any Questions Presented in her brief.
6 We don’t construe Husband’s argument to challenge the bounds of the prenuptial agreement itself. Prospective spouses enter into a prenuptial agreement prior to marriage to “settle in advance alimony or property rights of the parties upon divorce.” Cynthia Callahan & Thomas C. Ries, Fader’s Maryland Family Law § 14-2(a) (7th ed. 2021) (cleaned up). Here, the parties entered into a prenuptial agreement on June 24, 2009 and the circuit court found it valid and enforceable in case no. CAL16-36414. When it did, the court explained that “any interests, rents, and profits that have been acquired from [the properties] would remain in [Husband’s] possession. However, anything exclusive of that, where marital funds may have been used to bring the mortgage loan down is not part of [the prenuptial] agreement . . .” The court extended this logic to the bank accounts identified in the prenuptial agreement, confirmed that Husband and Wife understood its limits, then placed their shared understanding on the record. We analyze the issues in this appeal against that history.
7 In light of our conclusion that the circuit court should have classified the properties as partly marital and partly nonmarital, we are not persuaded by Husband’s argument that Wife conceded the status of the 100th Avenue property when she listed it as nonmarital in the parties’ Joint 5-207 statement. The fact that Wife categorized 100th Avenue in that document as both a nonmarital property and a property with a disputed status only reinforces its mixed status.
8 In Jandorf, the husband inherited the home, and the court valued his nonmarital contribution by the home’s fair market value at the time of inheritance. Jandorf, 100 Md. App. at 437–38; see also Merriken, 87 Md. App. at 535 (“We define the value of the inherited property as the value that the property held at the time it was inherited . . . .”). In contrast, Husband purchased and built equity in 100th Avenue before the marriage. Therefore, the circuit court should calculate Husband’s nonmarital equity contributions by subtracting 100th Avenue’s principal loan balance at the start of the marriage from the property’s fair market value in 2009 instead of relying solely on the 2009 fair market value, as Wife suggested
and as done in Jandorf. See Hoffman, 93 Md. App. at 714–15 (for example, if spouse used nonmarital funds to cover downpayment on the marital home, and the resulting equity amounted to one fourth of the property’s value, then one fourth of the fair market value of the property at the time of trial would be nonmarital property); Harper, 294 Md. at 80 (“[T]he spouse who contributed nonmarital funds [should] receive a proportionate and fair return on their investment.”).
9 The contributions made by the marital unit equal the amount by which marital funds paid down the principal loan balance during the marriage. The record reveals that Husband had paid off the mortgage for 100th Avenue by 2017.
10 On remand, the circuit court can decide whether to take additional evidence or to rely on the evidence adduced at trial. See Brewer v. Brewer, 156 Md. App. 77, 108 (2004) (“[E]quity only ‘requires that reasonable efforts be made to ensure that valuations of marital property approximate the date of judgment of divorce . . . .’” (quoting Fox v. Fox, 85 Md. App. 448, 460 (1991))).
11 Wife’s calculation had used $385,000, the appraisal amount that Mr. Bell testified to incorrectly.
12 Under “Sale of Property,” the analysis lists the refunded loan amount as $48,321.90. This entry appears to be a clerical error.
13 At trial, Husband objected to the admission of his Discover Bank statements because their closing predated the parties’ separation. The court overruled his objection based on its understanding that Wife had submitted the statements for the purpose of showing that Husband had dissipated the money in those accounts.
14 There is no record of a Discover account ending in #1138. The court appears to have valued this account based on the average daily balance of Discover #5140 during the statement period of October 1, 2016 to January 3, 2017, as shown by a statement with a page stamp of “TE 1138.” Therefore, it appears that the court meant to identify Discover #5140 in its opinion and that the reference to Discover #1138 was a clerical error.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court reversed the Baltimore County Court’s finding that a member of the opposite sex was not “residing” in wife’s residence for more than 300 out of 365 days, thus terminating husband’s alimony obligation. It rejected the contention that the individual “resides” with wife only when he spends that night at her house. Instead it found that he “resides” at the house because he receives his mail there; his car is registered, insured and parked there; his driver’s license says he lives there and the Maryland court system would have sent notices to him during his divorce proceeding there.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
BACKGROUND
On May 26, 2017, the circuit court granted David Robert Rummel Jr. a divorce from Victoria Rummel. In the judgment of absolute divorce, the court embodied the parties’ agreement as to the division of assets, alimony, and other related issues.
In accordance with the parties’ agreement, the court ordered Mr. Rummel to pay $1,000.00 per month in alimony to Ms. Rummel. The obligation to pay alimony would terminate upon the occurrence of certain specified events. One of those events was “Wife residing with an unrelated member of the opposite sex for 300 of 365 days[.]”
On August 15, 2024, Mr. Rummel, through counsel, filed a complaint to terminate his alimony obligation. The complaint alleged that Ms. Rummel “has been living with a member of the opposite sex for more than 300 of 365 days in each of the past few years.”
Mr. Rummel’s complaint came before the circuit court for an evidentiary hearing on February 21, 2025. At the outset of the hearing, Mr. Rummel introduced five exhibits.
Exhibit 1 is a copy of the judgment of absolute divorce.
A judgment of absolute divorce decreed that the husband’s obligation to pay alimony would terminate if the wife “resid[ed] with an unrelated member of the opposite sex for 300 of 365 days.” Invoking this provision, the ex-husband contended that his obligation to pay alimony had terminated because another man had moved into his ex-wife’s house.
Although the other man had moved in with the exwife four years earlier, had no other permanent place of abode, received his mail at the ex-wife’s house, registered, insured, and parked a car at the wife’s house, had the exwife’s address listed on his driver’s license, and used the ex-wife’s address during his divorce proceedings, the Circuit Court for Baltimore County concluded that he had not “resided” with the ex-wife for 300 of 365 days. The court reasoned that the man “resided” with the ex-wife only on the days when he spent the night at her house and that he did not “reside” with her on the days when he was temporarily absent from her home. Because the man claimed to have spent the night somewhere other than the ex-wife’s house more than 65 days out of a year, the court concluded that the obligation to pay alimony had not terminated.
The ex-husband appealed. We reverse.
Exhibit 2 is a 12-page, handwritten document that Ms. Rummel prepared and sent to the court in response to the complaint to terminate alimony. On page 1 of the document, Ms. Rummel wrote that “Tom”—Thomas Andersen—“moved in—June 2021.” On the rest of page 1 and on the next 10 pages, Ms. Rummel made a record of the days when Mr. Andersen spent the night somewhere other than her house in Nottingham, Maryland, from June 2021 through August 2024. Viewed in the light most favorable to Ms. Rummel, the record appears to show that Mr. Andersen had spent the night somewhere other than Ms. Rummel’s house at least 65 times a year.
Exhibit 3 is a letter addressed “To Whom It May Concern,” dated August 28, 2024, and signed by Mr. Andersen and his son. In the letter, which he evidently sent to the court in response to the complaint to terminate alimony, Mr. Andersen stated that he was “well aware of the terms” of the judgment of absolute divorce, including the provision under which Mr. Rummel’s alimony obligation would end if Ms. Rummel resided with a member of the opposite sex “for more than 300 out of 365 days per year.” Mr. Andersen denied that he was “living” at the Nottingham address for more than 300 days a year. He asserted that he had been hospitalized twice, for a total of several months, in 2023. He also asserted that he takes an annual, weeklong fishing trip with his brother in Virginia and that he stays with his son in Middle River on Sundays and every third Monday. He acknowledged, however, that his
mail goes to the Nottingham address because he is there “for a majority of the year.” He also acknowledged that a car that he owns jointly with Ms. Rummel is parked in the driveway of the Nottingham residence.
Exhibit 4 is a printout of information from the Maryland Department of Transportation. The printout shows that the address on Mr. Andersen’s driver’s license is the address of Ms. Rummel’s residence in Nottingham. The printout also shows that Ms. Rummel and Mr. Andersen have used the Nottingham address to register and insure the car that they co-own.
Exhibit 5 is a printout from Maryland Judiciary Case Search that reflects the court docket in Mr. Andersen’s divorce proceedings. The docket lists the Nottingham address as Mr. Andersen’s address.
On examination by the attorney for Mr. Rummel, Ms. Rummel stated that Mr. Andersen has not moved out of her house. She agreed that he packs a bag when he goes to visit his son or goes fishing. She confirmed that Mr. Andersen’s mail goes to the Nottingham address “[b]ecause,” she said, “that’s where he is most of the time.” She also confirmed that she and Mr. Andersen bought a car together, that the car is registered at her address in Nottingham, and that Mr. Andersen has told the Motor Vehicle Administration that he lives at the Nottingham address.
Ms. Rummel testified that Mr. Andersen was divorced in 2021 or 2022. He had his own residence for some time but moved in with Ms. Rummel when his lease expired. Ms. Rummel confirmed that Mr. Andersen used the Nottingham address during his divorce proceedings.
Ms. Rummel explained that she created the record of dates “because of the Divorce Decree.” She agreed that Mr. Andersen has resided with her since 2021 for “[a]ll but 65 days” of each year. Referring to her right to alimony, she volunteered that she “was not gonna do anything to mess that up.”
After Ms. Rummel had concluded her testimony, counsel for Mr. Rummel argued that Mr. Andersen resides with her more than 300 days a year and, thus, that the obligation to pay alimony had terminated. He cited dictionary definitions of the verb “reside,” which, he said, include “to occupy a place as one’s legal domicile” and “to settle oneself; to be stationed.” He urged the court not to equate “to reside” with “to spend the night,” as Ms. Rummel evidently did. He concluded that uncontradicted evidence established that Mr. Andersen had resided with Ms. Rummel for 300 days or more since 2021.
The court disagreed. It asserted that the agreement was unambiguous. Implicitly endorsing the contention that “to reside” simply means “to spend the night,” the court stated that Ms. Rummel had not resided with an unrelated member of the opposite sex for 300 or more days in a year. “Clearly” the court said, “that is what Ms. Rummel believed it meant.” The court cited Ms. Rummel’s practice of keeping a log as evidence of her belief about what the agreement meant. In an order docketed on February 25, 2025, the court denied Mr. Rummel’s request to terminate alimony and ordered him to pay $6,000.00 in arrearages that had accrued since he filed his complaint.
On March 10, 2025, Mr. Rummel noted a timely appeal. Ms. Rummel did not file a brief and, thus, was not permitted to present argument. Md. Rule 8-502(d).
QUESTION PRESENTED
Mr. Rummel presents one question, which we quote: “Did the trial court err by failing to apply the plain and unambiguous meaning of the term ‘residing’ as used in the Judgment of Absolute Divorce?”
For the reasons stated herein, we conclude that the court erred in interpreting the unambiguous terms of the parties’ agreement, as embodied in the judgment of absolute divorce. Consequently, we shall reverse the judgment and remand the case for further proceedings consistent with this opinion.
DISCUSSION
Although this case involves the interpretation of a judgment of absolute divorce, the central question presented is essentially one of contract interpretation: the judgment included the parties’ agreement that Mr. Rummel’s obligation to pay alimony would terminate if Ms. Rummel was “residing with an unrelated member of the opposite sex for 300 of 365 days[.]”
There is no dispute that Mr. Andersen is “an unrelated member of the opposite sex” from Ms. Rummel. If Mr. Anderson has “resided” where Ms. Rummel “resides,” then she has necessarily “resided” with him. Consequently, the only questions are whether Mr. Andersen has “resided” at Ms. Rummel’s house for 300 or more days out of 365.
“‘The interpretation of a contract, including the determination of whether a contract is ambiguous, is a question of law,’ which we review de novo.” Ocean Petroleum, Co. v. Yanek, 416 Md. 74, 86 (2010) (quoting Clancy v. King, 405 Md. 541, 556-57 (2008)) (internal quotation marks and citations omitted).
“Courts in Maryland apply the law of objective contract interpretation, which provides that ‘[t]he written language embodying the terms of an agreement will govern the rights and liabilities of the parties, irrespective of the intent of the parties at the time they entered into the contract, unless the written language is not susceptible of a clear and definite understanding.’” Dumbarton Improvement Ass’n v. Druid Ridge Cemetery Co., 434 Md. 37, 51 (2013) (quoting Slice v. Carozza Props., Inc., 215 Md. 357, 368 (1958)); accord Huggins v. Huggins & Harrison, Inc., 220 Md. App. 405, 417 (2014). Under the law of objective contract interpretation, “‘[a] contract’s unambiguous language will not give way to what the parties thought the contract meant or intended it to mean at the time of execution.’” Dumbarton Improvement Ass’n v. Druid Ridge Cemetery Co., 434 Md. at 51-52 (quoting Sy-Lene of Washington, Inc. v. Starwood Urban Retail II, LLC, 376 Md. 157, 167 (2003)); accord Huggins v. Huggins & Harrison, Inc., 220 Md. App. at 417.
“Our task, therefore, when interpreting a contract, is not to discern the actual mindset of the parties at the time of the agreement, but rather, to ‘determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated.’” Dumbarton Improvement Ass’n v. Druid
Ridge Cemetery Co., 434 Md. at 52 (quoting General Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261 (1985)); accord Huggins v. Huggins & Harrison, Inc., 220 Md. App. at 417. “This undertaking requires us to restrict our inquiry to ‘the four corners of the agreement,’” Ocean Petroleum, Co. v. Yanek, 416 Md. at 86 (quoting Cochran v. Norkunas, 398 Md. 1, 17 (2007)), “and ascribe to the contract’s language its ‘customary, ordinary, and accepted meaning.’” Id. (quoting Fister v. Allstate Life Ins. Co., 366 Md. 201, 210 (2001)) (internal quotation marks and citation omitted).
To determine the ordinary and accepted meanings of contractual language, Maryland courts may look to dictionary definitions. See, e.g., Credible Behavioral Health, Inc. v. Johnson, 466 Md. 380, 394-95 (2019) (citing Pacific Indem. Co. v. Interstate Fire & Cas. Co., 302 Md. 383, 388 (1985)); W.F. Gebhardt & Co. v. American European Ins. Co., 250 Md. App. 652, 668 (2021). This case turns on the definition of the word “residing,” which is the present participle of the verb “to reside.”
Merriam-Webster defines “reside” to mean “to dwell permanently or continuously: occupy a place as one’s legal domicile.” https://www.merriam-webster.com/dictionary/ reside. Black’s has defined “reside” to mean to “[l]ive, dwell, abide, sojourn, stay, remain, lodge[,]” and “[t]o settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one’s residence or domicile[.]” Black’s Law Dictionary 1176 (5th ed. 1984). Both definitions envision that persons reside where they “dwell,” whether “permanently or continuously.” Similarly, both definitions recognize that the question of where someone “resides” is related to the question of “domicile.” “Domicile” is generally a question of intent, see, e.g., Blount v. Boston, 351 Md. 360, 368 (1998), which “‘may. . . be more satisfactorily shown by the acts of the individual, rather than by his words.’” Id. (quoting Harrison v. Harrison, 117 Md. 607, 614 (1912)).
Mr. Andersen’s acts establish, as a matter of law, that he “resides” with Ms. Rummel and that he has “resided” with her since he, in Ms. Rummel’s words, “moved in” in June 2021. Mr. Andersen has had no other continuous or settled place of abode since his lease on another property expired just before he moved in with Ms. Rummel. He receives his mail at Ms. Rummel’s address. His driver’s license lists Ms. Rummel’s address as his. He has registered and insured a car, using Ms. Rummel’s address. He parks that car at Ms. Rummel’s address. The court records from his divorce confirm that he lives at Ms. Rummel’s address. Finally, when he leaves, temporarily, to visit his son or to go fishing or hunting, he packs a bag, because he obviously plans to return to Ms.
Rummel’s house, his settled place of abode. On these facts, no reasonable person could conclude other than that Mr. Andersen has “resided” with Ms. Rummel since June 2021.
We reject the contention that Mr. Andersen “resides” with Ms. Rummel only when he spends that night at her house. Mr. Andersen does not “reside” with his son when he packs a bag and goes to stay at his son’s house for the weekend. He does not “reside” in a hotel or a campground when he goes away on a week-long fishing or hunting trip. He did not “reside” in a hospital when he was temporarily under the care of others. He resides at Ms. Rummel’s residence in Nottingham, where he receives his mail, where his car is registered, insured, and parked, where his driver’s license says he lives, and where the Maryland court system would have sent notices to him during his divorce proceeding.
In this regard, we note that, under section 11-108(2) of the Family Law Article of the Maryland Code (1984, 2019 Repl. Vol.), “alimony terminates . . . on the marriage of the recipient[.]” Under the statute, however, alimony does not terminate merely because “the recipient lives in a ‘marriage type relationship” with another person.” Whittington v. Whittington, 172 Md. App. 317, 341-42 (2007). Obviously, the parties drafted the agreement in this case in order to address the limitations of the statute and to ensure that Ms. Rummel would not continue to receive alimony if she entered into a marriage-like relationship with a person of the opposite sex but opted not to get married, as she has done in this case.
It makes no difference that Ms. Rummel claims to have held the subjective belief that Mr. Andersen does not “reside” with her on the days when he spends the night somewhere else. An unambiguous agreement, like the agreement before us, means what a reasonable person in the position of the parties would have understood it to mean. Dumbarton Improvement Ass’n v. Druid Ridge Cemetery Co., 434 Md. at 51-52; accord Huggins v. Huggins & Harrison, Inc., 220 Md. App. at 417. A reasonable person in the position of the parties would not have understood the agreement to mean that Mr. Andersen “resides” with Ms. Rummel only when he spends the night at her house.
In summary, Mr. Andersen “resides” where he dwells permanently or continuously or where he has a settled abode. He does not “reside” wherever he lays his head. The facts of this case establish, as a matter of law, that Mr. Andersen has “resided” with Ms. Rummel since June 2021. Therefore the circuit court erred in concluding that Ms. Rummel has not “resided” with an unrelated member of the opposite sex for more than 300 of 365 days and in denying Mr. Rummel’s request to terminate alimony.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY APPELLEE.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court held the Wicomico County Circuit Court abused its discretion in denying father’s motion for a mistrial. The second judge who issued the decision, who was appointed after the first judge recused herself following the trial, concluded that he could “properly” decide the issues by reviewing the court file, pleadings, exhibits, transcripts, audio recordings and written closing arguments. But the factual findings required to decide the contested issues could have been made only by assessing the witnesses’ credibility based on seeing and hearing their testimony.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
related to the decision on the merits of the divorce action.
BACKGROUND
The parties married in 2007 and have two minor children. In 2022, Mother filed a complaint for absolute divorce, which she later amended. She sought sole legal and primary physical custody of the children, child support, alimony, a monetary award, use and possession of the family home, as well as attorney’s fees, among other requests.
The parties, including the children, were represented by their respective counsel. They appeared before Judge Dean for a seven-day merits hearing held on several dates in 2024: March 25 and 26, August 12 and 13, and November 13, 14, and 15. The parties and children’s counsel presented their cases, and Judge Dean heard testimony from the parties and other witnesses, including friends, family members, the children’s therapist, and experts. Additionally, Judge Dean interviewed the two children, who were 11 and 15 years old at the time.
This appeal arises from a divorce proceeding between the appellant, David Leone (“Father”), and the appellee, Stacy Leone (“Mother”). Judge Karen M. Dean of the Circuit Court for Wicomico County presided over a multi-day merits hearing concerning various matters, including custody of the parties’ two minor children, child support, alimony, a monetary award, and use and possession of the family home. Before making findings of fact and rendering a decision on these issues, Judge Dean recused from the case.
The case was reassigned to Senior Judge Brett W. Wilson. Father moved for a mistrial, arguing that the case needed to be retried before the same judge who would decide it. However, Judge Wilson denied the motion and decided the case based on his review of the court filings, exhibits, and the audio and transcripts from the merits hearing. Thereafter, Father moved for a new trial, which the court denied.
On appeal, Father challenges the denial of the motion for mistrial as well as the decision on the merits of the divorce action. 1 For the reasons stated below, we conclude that the court abused its discretion in denying Father’s motion for mistrial. Accordingly, we reverse and remand the case for further proceedings. In light of this disposition, we need not address the specific issues
The parties were subject to various pendente lite orders and supervised visitation orders prior to the merits hearing. The pendente lite orders covered custody, access, the sharing of certain home-related expenses, uninsured medical costs for the children, and other child-related expenses. Mother filed several petitions for contempt against Father, claiming that he failed to comply with these orders, including the requirement that Father reimburse Mother for shared expenses related to the children and the family home. Judge Dean heard testimony on the pending contempt petitions for part of the day on August 12, but she deferred ruling on them.
On November 15, after the parties rested, Judge Dean heard closing arguments from counsel for the children. Judge Dean instructed both Mother and Father to submit their closing arguments in writing.
Judge Dean’s Recusal
During a hearing on December 11, 2024, the administrative judge of the circuit court notified counsel for the parties and the children that Judge Dean had recused herself from the case. At that point, Judge Dean had not made any findings of fact or resolved any issues related to the divorce action or the contempt petitions. The administrative judge explained that Judge Dean’s recusal was “not based on anything that occurred during the course of the trial or anything of that sort[.]” Instead, it was based on “something that has arisen after [the proceedings] that Judge Dean thinks affects her ability to
be fair and impartial in rendering a decision at this point.” The administrative judge stated that the case would be reassigned to another judge, who would then schedule a hearing to determine the next steps.
Reassignment to Judge Wilson
Judge Wilson was reassigned to the case and held a status conference on February 4, 2025. He initially planned to read the transcripts, review the exhibits, and consider the closing arguments. Following that, he intended to schedule a hearing where the attorneys could present additional points before deciding the case. Judge Wilson stated that this approach “would be to save the parties money and angst” of having a new trial. Counsel for Mother and the children agreed with Judge Wilson’s plan but suggested that he also listen to the audio of the merits hearing to better assess the witnesses’ credibility.
Father, through counsel, disagreed. His attorney expressed Father’s concern about Judge Wilson’s ability to adequately assess the witnesses’ credibility, stating that it would be impossible to do so without Judge Wilson hearing their testimony and observing their reactions in the courtroom. Father believed that the best course of action was for the court to order a new trial, fully aware that this would lead to incurring additional attorney’s fees. Consequently, Father’s counsel orally requested a mistrial. Judge Wilson then instructed Father to submit a written motion for a mistrial, allowing Mother to respond in writing within ten days.
Father’s Motion for Mistrial
After the status conference, Father filed a motion for mistrial. He argued that Judge Dean’s recusal created prejudice against the parties because it made it impossible for the successor judge to assess the credibility of witnesses. Father explained that the successor judge, who would listen to audio recordings or review transcripts, would be unable to observe body language, reactions from others in the courtroom, or any other non-verbal cues. He emphasized that these subtle non-verbal gestures and movements were crucial for determining credibility. Father acknowledged that although the court took corrective action by reassigning the case to Judge Wilson, this reassignment would not eliminate the prejudice caused by Judge Wilson’s inability to evaluate credibility, as he was not the judge who originally heard and saw the testimony. Accordingly, Father requested a new trial.
Mother opposed the motion, claiming that neither party disputed the witnesses’ credibility. She argued that Maryland Rule 2-536 permitted Judge Wilson, as the successor judge, to decide whether he could decide the case based on the existing record, which included audio recordings. She stated that a new trial should be ordered only if the successor judge determined that he could not render a decision based on that record.
On February 13, 2025, Judge Wilson denied the motion for a mistrial. In his written order, Judge Wilson stated that the court would “render a decision in this case after review of the entire file, including the pleadings, exhibits, written transcript, audio recording and written closing
arguments.”
Judge Wilson’s Decisions
Thereafter, additional petitions for contempt were filed in the case. On March 14, 2025, counsel for the children filed a petition for contempt against Father for failing to abide by a prior order to control his conduct. Counsel for the children also petitioned for payment of outstanding fees. On April 3, 2025, Mother filed another petition for contempt, seeking reimbursement of shared expenses, including those in her earlier petitions and additional expenses incurred since the merits hearing.
On April 29, 2025, Judge Wilson held a hearing on these petitions and heard testimony from both parties. At the conclusion of the hearing, Judge Wilson found Father in contempt and issued orders on May 2 and 13, 2025. Father subsequently appealed these orders in a separate case (ACM-REG-505-2025).
On August 15, 2025, Judge Wilson issued an opinion on the merits of the divorce action and entered an order of judgment of absolute divorce. At the outset of the written opinion, Judge Wilson stated:
Consistent with applicable law, the following Opinion and related Judgment are based upon the review of all pleadings filed in the matter, testimony as heard from the audio recordings and read from the transcripts of the proceedings, and the exhibits which were accepted as evidence by the trial judge [Judge Dean].
In his written opinion, Judge Wilson made several findings of fact regarding the grounds for divorce, the factors related to custody, the determination of child support including an imputation of income, the factors for determining alimony, the factors for adjusting any inequity in determining the monetary award, the basis for awarding use and possession of the family home, and an analysis of Mother’s request for attorney’s fees.
Judge Wilson granted Mother a divorce on grounds of adultery, one year separation, and cruelty of treatment. He awarded Mother sole legal and physical custody of the children. Father was granted supervised visitation with the children once a week, with the possibility of additional unsupervised visits with one of the children upon that child’s initiation. In conjunction with the judgment of absolute divorce, Judge Wilson entered a separate order requiring supervised visitation and specifying the logistics of the parties’ use of a visitation center for these visits. In addition, he granted Mother use and possession of the family home for three years.
Judge Wilson imputed an income higher than Father’s stated income and used the imputed income to calculate child support and determine alimony. Judge Wilson ordered Father to pay $1,768 per month in child support and awarded Mother alimony of $5,000 per month until 2031. He granted Mother a monetary award of $970,465.50 to be paid in monthly installments of $26,957.38. He also ordered Father to pay Mother $50,000 in attorney’s fees.
In the written opinion and order for judgment of absolute divorce, Judge Wilson noted that he considered multiple allegations of contempt during a separate hearing on April
29, 2025, which resulted in the orders entered separately on May 2 and 13, 2025, supra. The judge incorporated these orders by reference in the order for judgment of absolute divorce.
On August 25, 2025, Father filed a motion for a new trial, reiterating the arguments made in his earlier motion for a mistrial. On September 9, 2025, Judge Wilson denied the motion for a new trial. On September 11, 2025, within thirty days of the entry of the judgment of absolute divorce, Father noted his appeal.
PARTIES’ CONTENTIONS
Father challenges the court’s decisions on the merits of the divorce action. His threshold argument is that Judge Wilson abused his discretion by denying the motion for a mistrial. He claims Judge Dean’s recusal prejudiced him, and that the court’s subsequent actions did not address this prejudice. Father explains that the successor judge, Judge Wilson, did not have the opportunity to observe and listen to the witnesses testify during the trial, and thus could not have properly made custody-related determinations based on a “cold record.” Father maintains that Judge Wilson should have declared a mistrial and that his failure to do so was an abuse of discretion.
Mother continues to maintain that Rule 2-536 allows a successor judge to make decisions based on the existing record and to assess credibility accordingly. Although the first judge, Judge Dean, who presided over the merits hearing, was better positioned to evaluate credibility, the successor judge, Judge Wilson, could still render a judgment on the divorce action by relying on the record. She contends that declaring a mistrial is an extraordinary measure that should be used only in cases of manifest necessity and that Father has not demonstrated any necessity or prejudice in this situation.
STANDARD OF REVIEW
“Whether to order a mistrial lies in the sound discretion of the trial judge, and appellate review of the denial of the motion is limited to whether there has been an abuse of discretion.” Brown v. Contemporary OB/GYN Assocs., 143 Md. App. 199, 237 (2002). In exercising discretion, the trial judge must correctly apply the pertinent legal standard. Neustadter v. Holy Cross Hosp. of Silver Spring, Inc., 418 Md. 231, 241–42 (2011)
“The declaration of a mistrial is an extraordinary act which should only be granted if necessary to serve the ends of justice.” Hill v. State, 134 Md. App. 327, 348–49 (2000); Beghtol v. Michael, 80 Md. App. 387, 399 (1989) (“[W]e have adopted the standard in criminal cases, which is equally applicable here, that in exercising that discretion a trial judge should declare a mistrial only under extraordinary circumstances and where there is manifest necessity to do so.” (citation modified)). “The question is one of prejudice.” ACandS, Inc. v. Godwin, 340 Md. 334, 407 (1995). Thus, “[t]he decision of whether to grant a mistrial is vested in the discretion of the trial judge and will not be disturbed on appeal unless there was clear prejudice to the defendant.” Richwind Joint
Venture 4 v. Brunson, 96 Md. App. 330, 348 (1993), aff ’d in part and rev’d in part on other grounds, 335 Md. 661 (1994).
DISCUSSION
Maryland Rule 2-536 allows one judge to substitute for another in an ongoing action if the first judge is unable to act and the successor judge is satisfied that they can properly perform the remaining functions of the first judge. The Rule provides:
If, by reason of termination of office, absence, death, sickness, or other inability to act, a judge is unable to perform an act or duty in an action, any other judge authorized to act in that court may perform the act or duty if satisfied that the other judge can properly do so. Otherwise, the other judge shall grant a new trial or such other relief as justice requires. (emphasis added). 3
The authors of the Maryland Rules Commentary explain:
Whether a judge can “properly perform” the functions of a prior judge is resolved under the standards of substantive law. If the judge is unable to determine that the other judge is able, both legally and factually, to succeed the prior judge, the proceeding must begin anew.
Paul Niemeyer & Linda Schuett, Maryland Rules Commentary Rule 2-536 (6th ed. 2024). “Whether or not the case is being tried by a jury or by the court is a factor in determining whether the new judge can proceed.” Id. For instance, “[i]n a jury trial, the successor judge who reads a transcript of a prior proceeding may assume the functions of the prior judge and continue the trial.” Id. On the other hand,
[I]f a judge is the trier of fact and has presided for a substantial portion of the trial, it is virtually impossible for another judge to continue the case over the objection of one of the parties. The first judge’s opinion about the credibility of witnesses cannot be transferred to a successor judge. Substitution is no more feasible than substituting a new juror in the middle of trial. A party is entitled to have the same fact finder sit throughout a trial.
Id. (emphasis added).
The Supreme Court of Maryland highlighted this consideration in Leet v. Totah, 329 Md. 645 (1993), when it reversed a jury verdict awarding damages and remanded the case for further proceedings on an equitable claim for specific performance. Id. at 667. The trial judge died while the appeal was pending. Id. at 667. The Court stated that on remand, absent an agreement between the parties, another judge would have to hear and decide additional issues peculiar to specific performance that were not adjudicated in the jury trial. Id. at 670–71. It instructed that the “successor judge should grant a new trial, unless that judge is ‘satisfied that [the successor judge] can properly’ determine the common issues relying only on the
prior record.” Id. at 670 (quoting Md. Rule 2-536). “If the successor judge is so satisfied, that judge may determine the common issues based on the prior record.” Id. “When evaluating whether ‘[the successor judge] can properly’ independently determine the common issues based on the jury trial record, the successor judge will necessarily be mindful of the admonition” in the Maryland Rules Commentary, supra, relating to the judge’s duty in a bench trial to assess the credibility of witnesses. Id.
“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). This is because, in child custody cases, “the court has an absolute and overriding obligation to conduct a thorough examination of all possible factors that impact the best interests of the child ” A.A. v. Ab.D., 246 Md. App. 418, 444 (2020); see Ross v. Hoffman, 280 Md. 172, 174–75 (1977) (noting that the best interests of the child standard “is firmly entrenched in Maryland and is deemed to be of transcendent importance”).
We have emphasized that “procedural defects should not be corrected in a manner that adversely impacts the court’s determination regarding the child’s best interests.”
A.A., 246 Md. App. at 446. We applied this principle in the context of a discovery sanction in A.A v. Ab.D. There, the father propounded discovery requests to the mother in connection with his motion to modify custody. Id. at 426. According to the father, the mother’s responses were deficient, and he moved to compel further responses. Id. at 427. The father then moved in limine to exclude the testimony of witnesses for whom the mother did not provide contact information, and to exclude most of the evidence the mother had not produced during discovery. Id. The court granted the father’s motion and excluded such evidence. Id. at 428.
On appeal, we held that the court erred in imposing a discovery sanction that effectively precluded it from considering potentially significant evidence directly relevant to the factors necessary to determine a custody arrangement that would be in the children’s best interests. Id. at 447. Significantly, we explained:
In assessing the child’s best interests, a trial court, acting under the State’s parens patriae authority, is in the unique position to marshal the applicable facts, assess the situation, and determine the correct means of fulfilling a child’s best interests. Plainly, a child’s best interests are best attained when the court’s decision is as well-informed as possible Id. at 447 (citation modified) (emphases added).
We also applied this principle in a case involving a default judgment after a parent failed to respond to a custody complaint. In Flynn v. May, 157 Md. App. 389 (2004), we held that the circuit court abused its discretion when it ordered a change in the primary custody of a child after the court entered a default judgment against the child’s mother. Id. at 411. In that case, a father filed for custody of the parties’ son and for child support. Id. at 392. The mother, proceeding pro se, attempted to file
an answer with the court but did not include a certificate of service. Id. Consequently, her answer was never filed. Id. The court granted the father’s request for an order of default but instructed that testimony supporting the allegations of the complaint should still be taken. Id. at 394–95. Despite the default, the mother attended the custody hearing with witnesses. Id. at 395. However, the court did not allow her to testify or present evidence. Id. As a result, physical custody of the son was transferred to his father without a trial or evidentiary hearing. Id. at 397–98, 411.
We articulated that a child has “an indefeasible right to have any custody determination concerning him made, after a full evidentiary hearing, in his best interest.” Id. at 410. We instructed that a child does not lose that right because of a parent’s procedural pleading deficiency. Id. In reversing the court’s decision, we reasoned that the court’s entry of default judgment without considering any evidence was contrary to the very purpose of a custodial hearing, which is to provide for the best interests of the child. Id. at 406–10; accord Wells v. Wells, 168 Md. App. 382, 396–97 (2006) (vacating a default judgment in a divorce action as to custody and other issues because the child has an “indefeasible right” to have his best interests considered in a full evidentiary hearing).
Although the circumstances in A.A. and Flynn are different from this case, the principle that procedural defects should not be corrected in a way that negatively affects the court’s decision about the child’s best interests is equally applicable here. Judge Dean recused herself after the parties had rested and submitted their closing arguments. Her recusal rendered her “unable to perform” the remaining duties of making findings of fact and deciding the issues in the divorce action. See Md. Rule 2-536. Consequently, the case was assigned to Judge Wilson. Father requested a mistrial, arguing that Judge Wilson should not decide issues of custody and other matters related to the divorce action without having witnessed the testimony given during the multi-day trial. 4
In denying the motion for mistrial, Judge Wilson apparently determined, under Rule 2-536, that he could “properly” decide the custody issues, among other issues, by reviewing the court file, pleadings, exhibits, transcripts, audio recordings, and written closing arguments. However, under the circumstances of this case, Judge Wilson could not have properly performed the duties that Judge Dean was expected to perform before her recusal— namely, making findings of fact and deciding custody and other issues in the divorce action—solely by reviewing the record and listening to the audio recordings of the trial.
This case involves highly contested facts related to Father’s abuse of illicit drugs and physical and emotional abuse of Mother, among other disputed issues. Resolution of these factual disputes would undoubtedly impact the judge’s decision regarding custody, access, alimony, a monetary award, and the grounds for divorce (one of which was cruelty of treatment). These factual findings could have been made only by assessing the witnesses’ credibility based on seeing and hearing their testimony.
As stated in Gizzo v. Gerstman, 245 Md. App. 168 (2020), a trial judge who sees the parties and other witnesses, and hears their testimony, is in a far better position than the appellate court, which has only the record, to weigh the evidence and determine what disposition will best promote the welfare of the child. Id. at 201. This principle also applies to the successor judge in this case.
Mother argues that although Judge Wilson was not present during the merits hearing, he did preside over the contempt hearing in April 2025. During that hearing, the judge observed the parties testify and assessed their credibility before issuing the judgment of absolute divorce in August 2025. Therefore, she claims that Judge Wilson did not rely solely on the record from the merits hearing and could evaluate the parties’ credibility. However, we are not persuaded by this argument. It is irrelevant whether Judge Wilson gained a sense of the parties’ credibility at a later hearing; he did not observe them at any point during the multi-day merits hearing, nor did he observe the several other witnesses who testified. For the reasons stated, the court erred in denying Father’s motion for mistrial.
Our holding and reasoning align with those in other jurisdictions.
As a generally recognized principle, a successor judge may not make a decision in a civil case on evidence heard by a predecessor who failed to make findings of fact and conclusions of law or render credibility determinations if the successor judge would be required to weigh and compare testimony of witnesses whom he or she did not see or hear.
Kurtis A. Kemper, Power of Successor or Substituted Judge in Civil Case, to Render Decision or Enter Judgment on Testimony Heard by Predecessor, 84 A.L.R.5th 399, § 16 (2000); see also id. at § 18 (collecting cases wherein credibility determinations by a successor judge were held improper). On the other hand, “when a predecessor judge has not made findings of fact and conclusions of law, a successor judge may proceed on evidence heard by the predecessor judge where witness credibility is not a factor in rendering a decision.” Id. at § 16; see also id. at § 17 (collecting cases where a successor judge’s decisions were upheld because their inability to observe witnesses was found inconsequential). The rationale underlying these general principles is that “due process entitles a litigant to a decision on the facts by a judge who has heard the evidence and has been afforded an opportunity to assess the credibility of witnesses by observing their demeanor.” 48A C.J.S. Judges § 175 (March 2026 update); 46 Am. Jur. 2d Judges § 31 (Feb. 2026 update).
Federal Rule of Civil Procedure 63 and cases interpreting it are generally in accord. See Maryland Rules Commentary Rule 2-536 (“Although [Maryland Rule 2-536] differs significantly from the language of Fed. R. Civ. P. 63, the substance is similar, and case law developed under that rule is still useful in construing this rule.”). Federal Rule of Civil Procedure 63 provides:
If a judge conducting a hearing or trial is unable to proceed, any other judge may proceed upon certifying familiarity with the record and determining that the case may be completed without prejudice to the parties. In a hearing or a nonjury trial, the successor judge must, at a party’s request, recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness.
“The policy behind Rule 63 is that the successor judge, not having heard witnesses at the trial, may be unable to resolve issues of credibility.” Thompson v. Sawyer, 678 F.2d 257, 270 (D.C. Cir. 1982). If “there are issues of credibility that cannot properly be resolved on the basis of the record or for any other reason the replacement judge concludes that it is not possible to proceed in fairness to the parties, the judge has discretion to grant a new trial.” 11 Wright & Miller’s Federal Practice and Procedure, § 2922 (3d ed. Sep. 2025 update); see Mergentime Corp. v. Wash. Metro. Area Transit Auth., 166 F.3d 1257, 1266 (D.C. Cir. 1999) (“While Rule 63 allows a successor judge to make findings of fact based on evidence heard by a predecessor judge, . . . this practice is appropriate only ‘in limited circumstances’ . . . . [a] successor judge . . . would ‘risk error to determine the credibility of a witness not seen or heard who is available to be recalled.’” (quoting the 1991 advisory committee note under Rule 63)); In re Karten, 293 Fed. Appx. 734, 736 (11th Cir. 2008) (“If a judge presiding in a civil bench trial steps down before making findings of fact and conclusions of law, a successor judge generally cannot make credibility determinations and should retry the case.”); cf. Patelco Credit Union v. Sahni, 262 F.3d 897, 906 (9th Cir. 2001) (“[T]he successor judge may examine the trial transcript as if it were ‘supporting affidavits’ for summary judgment purposes and enter summary judgment if no credibility determinations are required.” (emphasis added) (citation omitted)).
The Fourth Circuit explained that without the parties’ consent “a successor master or judge may not be appointed to make findings of fact and conclusions of law based solely upon the transcript developed before the original judge or master, unless no credibility determination as to the testimony of the witnesses needs to be made.” Henry A. Knott Co.v. Chesapeake & Potomac Tel. Co. of West Virginia, 772 F.2d 78, 87 (4th Cir. 1985). This is because the first judge hears the witnesses’ live testimony and can assess their credibility. See id. at 83. A successor judge who decides the case solely on the record is essentially engaging in conduct that is typically the function of the appellate court, not the trial court. Id. “Having the same judge preside throughout the trial is even more important in a case that is not tried before a jury, because it is the judge who will make the decisions as to which witnesses are more credible based upon the live testimony and demeanor of the witnesses.” Id.
State court decisions in custody and other divorcerelated matters also support our holding. See, e.g.,
LaMotte v. LaMotte, 200 N.E. 3d 922, 926–27 (Ind. Ct. App. 2022) (explaining that a party to an action is entitled to a determination of the issues by the jury or judge that heard the evidence, and where issues remained undetermined at the death, resignation, or expiration of the term of such judge, his successor cannot decide or make findings in the case without a trial de novo where credibility must be weighed); Jackson v. DeJean, 228 N.E. 3d 1111,1114, 1118 (Ind. Ct. App. 2024) (holding that successor judge abused their discretion in re-weighing evidence and reassessing credibility of witnesses in modifying custody based on listening to the recording of contested hearing tried before the predecessor judge who had retired); Fry v. Fry, 887 So.2d 438, 440–41 (Fla. Dist. Ct. App. 2004) (explaining that in divorce proceedings, factual issues requiring weighing of testimony must be decided by the judge who heard that testimony, or else new trial was required); In re Marriage of Seyler, 559 N.W.2d 7, 10 (Iowa 1997) (concluding that in child custody case where credibility determinations are of paramount importance, the deciding judge must also be the one who heard the evidence); Vergon v. Vergon, 622 N.E.2d 1111, 1113 (Ohio Ct. App. 1993) (reversing judgment of divorce by successor judge, who did not preside over trial, where record was full of conflicting testimony and witness credibility was a vital factor); Davis v. Davis, 408 A.2d 849, 850 (Pa. Super. Ct. 1979) (remanding for further proceedings in a custody case and explaining that credibility determination is a “vital function” which can be made only by the judge before whom the witnesses appear).
The above authorities support the admonition by the Supreme Court of Maryland in Leet that, under Rule 2-536, “[a] party is entitled to have the same fact finder sit throughout a trial” and that “if a judge is the trier of fact and has presided for a substantial portion of the trial, it is virtually impossible for another judge to continue the case over the objection of one of the parties.” 329 Md. at 670 (quoting Maryland Rules Commentary Rule 2-536). Under Maryland Rule 2-536, Judge Wilson could not have properly performed the duty of making findings of fact
and deciding the issues in this divorce action by reviewing the record and listening to the audio recordings of the trial alone. Proceeding in such manner clearly prejudiced Father, and a declaration of a mistrial was necessary to serve the ends of justice. For the reasons stated, the court abused its discretion in denying the motion for mistrial.
CONCLUSION
We reverse the court’s denial of Father’s motion for a mistrial and vacate the order of judgment of absolute divorce (entered on August 15, 2025, and revised on October 24, 2025).5 In addition, we vacate the order for supervised visitation entered in conjunction with the order of judgment of absolute divorce.
We remand for further proceedings, including a new trial, unless there is a stipulation that a decision may be rendered based on the record (in whole or in part) already made.6 Significant changes may have occurred since the original trial; therefore, additional evidence should be received. See Taylor v. Taylor, 306 Md. 290, 313 (1986) (remand on custody); see also St. Cyr v. St. Cyr, 228 Md. App. 163, 201–02 (2016) (remand on alimony). On remand, the court should receive evidence about developments since the original trial, and in the exercise of its discretion, may receive additional evidence to supplement the existing record. Taylor, 306 Md. at 313; St. Cyr, 228 Md. App. at 201 (instructing on remand, the court “may accept additional evidence about each party’s actual or potential income, including evidence about their incomes since the original trial”); see also Fox v. Fox, 85 Md. App. 448, 465–66 (1991) (recognizing when remanding for further proceedings on the monetary award and alimony that the values of property may have changed and that monetary award and alimony should be reconsidered “in light of what has occurred since the [original] decree”).
As a result of the vacatur and remand, any pendente lite and supervised visitation order(s) in effect before the entry of the original order of judgment of absolute divorce shall remain in effect until the parties are once again before the circuit court.
JUDGMENT OF THE CIRCUIT COURT FOR WICOMICO COUNTY REVERSED; ORDER OF JUDGMENT OF ABSOLUTE DIVORCE (ENTERED ON AUGUST 15, 2025, AND REVISED ON OCTOBER 25, 2025) VACATED; ORDER FOR SUPERVISED VISITATION (ENTERED AUGUST 15, 2025) VACATED; CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY APPELLEE.
FOOTNOTES
1 In his brief, Father presents the following questions:
I. Under Federal and Maryland state law did the trial court err in denying Appellant’s motion for mistrial when the judge who heard the testimony recused herself sua sponte and was not the judge who made the findings of fact?
II. Under Maryland law did the trial court err in precluding the Appellant from introducing evidence regarding the values of marital property when the Appellee was able to introduce evidence to the values, but the Appellant was not?
III. Under Maryland law did the trial court prejudice the Appellant by refusing to allow him to introduce updated evidence related to property when the court did not render a judgment until nine (9) months after closing arguments and over eighteen months (18) after the Appellees property evidence was introduced?
IV. Under Maryland Law did the trial court abuse its discretion when it awarded a monetary award that was to be paid on a monthly basis that is greater than the Appellant’s income?
V. Under Maryland law did the trial court abuse its discretion in its determination that Appellee is entitled to alimony when it (1) improperly imputed income to the Appellant, (2) did not award alimony for the purposes of rehabilitating the Appellee and (3) did not properly consider the Appellee’s earning potential?
VI. Under Maryland law did the trial court abuse its discretion when it improperly weighed the evidence on the record and improperly made credibility determinations despite not being present at trial?
VII. Under Maryland law did the trial court improperly weigh the custody factors and make a custody award against the best interest of the minor children?
VIII. Under Maryland Law did the trial court improperly award attorney’s fees when there is nothing on the record to support its finding?
2 Father does not challenge the court’s decisions regarding the contempt petitions in this appeal. See supra, n.1. As stated in his brief, the contempt proceedings were pursued independently from the relief sought in divorce action. As mentioned, he is challenging the court’s decision related to the contempt petitions in a separate appeal.
3 Maryland Rule 2-536 was adopted in 1984, and was derived from former Rule 528, carrying forward with stylistic changes only the substance of the former Rule. Maryland Rules Commentary Rule 2-536. Former Rule 528, which was adopted in September 1961, read:
If by reason of termination of office, absence, death, sickness, or other inability to act, the judge before whom any proceeding in an action has been had is unable to perform an act or duty in connection with such action, his successor in office or any other judge presiding in or assigned to the court may perform such act or duty; but if such other judge is not satisfied that he can properly perform such act or duty, he may at his discretion grant a new trial, rehearing or such other relief as justice may require. (Added Sept. 15, 1961.)
Maryland Rule 528 (1961).
Maryland Rule 4-361 is a similar rule in the context of when a successor judge can sentence a criminal defendant, see subsection (a), and when a successor judge may proceed with and finish a jury trial, see subsection (b).
4 During oral argument, Father acknowledged that if his actions had led to Judge Dean’s recusal, he would not have had valid grounds to request a mistrial. We do not need to address that issue further, as the record does not provide the reason for Judge Dean’s recusal.
5 The vacatur of the order of judgment of absolute divorce does not impact the orders for contempt separately entered on May 2 and 13, 2025, which are the subject of a separate appeal.
6 See, e.g., Smith v. Freeman, 902 N.E.2d 1069, 1075 (Ill. 2009) (“[I]f the parties enter into an agreement or stipulation to allow a successor judge to decide the case based on written evidence received by a predecessor judge and that agreement is knowing, intentional, and voluntary, it is valid and the parties are bound by it.”); Farner v. Farner, 480 N.E.2d 251, 257–58 (Ind. Ct. App. 1985) (“[W]hen the trial judge who heard the testimony and observed the demeanor of the witnesses at trial is unavailable to render a decision thereon, the parties may stipulate that the substitute judge should determine the case on the record.”); In re Marriage of Seyler, 559 N.W.2d at 10 n.1, 12 (explaining that unless the parties stipulated that a decision could be made based on the record already made, on remand, the successor judge should hear the case anew due to the custody issues which depended on the credibility of the witness); Binder v. Binder, 557 N.W.2d 738, 740–41 (N.D. 1996) (affirming a trial court’s judgment because the parties agreed by stipulation to having the successor judge decide the divorce case based on audio recordings of trial testimony).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Harford County Circuit Court’s award of joint legal custody with tie-breaking authority to father. Although mother claims the trial court’s factual findings were clearly erroneous, because they were based upon bias or unsubstantiated factual findings, the trial court had valid reasons for awarding tie-breaking authority to father that serve the child’s best interest in coming to “some decision . . . when the parents cannot agree.”
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
motion for a new trial, which the trial court denied on August 8, 2025. This appeal followed. Our Court held oral argument on the matter on February 4, 2026.
I. Questions Presented
Mother presents three questions for our review, which we have rephrased for clarity. 2 First, Mother contests whether the trial court abused its discretion in denying Mother’s request for postponement. Second, Mother contends that the trial court abused its discretion by awarding the parties’ joint legal custody with tie-breaking authority to Father. Last, Mother contests whether the trial court abused its discretion in denying Mother’s motion to alter or amend the judgment of absolute divorce. We answer each in the negative. We affirm the judgments of the Circuit Court for Harford County and explain below.
II.Factual & Procedural Background
This matter stems from a divorce and child custody case in the Circuit Court for Harford County. Appellee, Derrick Evans (“Father”), filed a complaint for absolute divorce, or in the alternative, limited divorce, and related relief from Appellant, Princess Williams Evans (“Mother”). On September 12, 2023, Mother filed a counter-complaint for absolute divorce and related relief. After several motions were filed and discovery was exchanged, a two-day trial was scheduled and held on October 31, 2024 and November 1, 2024. The trial court recessed and resumed on April 30, 2025 and concluded on May 1, 2025.
In the midst of trial, the parties reached an agreement resolving the issues of grounds for divorce, physical custody, property division and alimony. This agreement was memorialized in a consent order entered on May 8, 2025. The trial court subsequently decided the remaining issues of legal custody, holiday schedule and child support and delivered its oral ruling on June 25, 2025. In doing so, the trial court discussed several of the Taylor factors and awarded joint legal custody to the parties, vesting tie-breaking authority in Father. The trial court ultimately adopted Father’s proposed holiday schedule and ordered Father to pay $1,588.00 per month in child support to Mother. The judgment of absolute divorce was entered on June 25, 2025. On July 7, 2025, Mother filed a motion to alter or amend the judgment, which the trial court denied on July 24, 2025. On July 8, 2025, Mother filed a
Mother and Father married in a religious ceremony on July 3, 2017. Thereafter, Mother and Father had one child, A.E. (“Child”), in January of 2021. Father works for a financial services company; prior to Child’s birth, Mother maintained employment with various state and federal government agencies. Following Child’s birth, the parties decided that Mother would stay home to care for Child while Father continued as the primary income earner for the family. Eventually, difficulties arose in the parties’ marriage, and, on April 11, 2023, Father filed a complaint for limited divorce and related relief. Represented by counsel, Mother answered Father’s complaint and subsequently filed a countercomplaint for absolute divorce and related relief.
A. Request for Postponement of Trial
On May 24, 2023, Kimberly Fleming, Esquire, entered an appearance on behalf of Mother. On July 25, 2024, pursuant to Md. Rule 2-132, Ms. Fleming advised Mother in writing that she intended to withdraw her appearance five days from the date of the letter. On July 31, 2024, Ms. Fleming filed a motion for leave to strike her appearance on behalf of Mother. The trial court granted counsel’s motion and entered an order striking counsel’s appearance on August 20, 2024. On September 10, 2024, a notice to employ new counsel was sent to Mother by the clerk of the court. Mother appeared in proper person at a pre-trial conference on September 19, 2024 and expressed discomfort with litigating claims in which she had a substantial interest without legal assistance. On October 26, 2024, Mother filed a pro se motion requesting that the trial be postponed for the express purpose of
obtaining counsel. In her motion, Mother explained her efforts to secure counsel and indicated that her inability to do so was largely because of prospective trial counsels’ conflicts with the pre-scheduled trial dates. Father filed an opposition to Mother’s request to postpone, and argued that Mother’s motion “constitute[d] an impermissible eleventhhour request, especially given that [the] matter ha[d] been pending for over eighteen (18) months[.]” The trial court denied Mother’s request for postponement on October 31, 2024. Over Mother’s objections, trial began as scheduled on October 31, 2024. Mother filed a motion for reconsideration of the denial of her request for postponement and a motion to shorten time to respond to such request, both of which were denied.
B. Trial
As stated, trial consumed four days in total: October 31, 2024, November 1, 2024, April 30, 2025, and May 1, 2025. While some preliminary motions were decided by other judges in the trial court, the Honorable Kevin J. Mahoney presided over the trial from start to finish.
On the first day of trial, Mother was unrepresented and vehemently expressed to the court her discomfort with representing herself. Trial proceeded, nonetheless. Father’s counsel gave an opening statement and Mother gave an opening statement. Through counsel, Father called two witnesses, his sister and his mother.
On the second day of trial, Father testified and entered several exhibits into evidence. Mother, still unrepresented, entered none. Because Mother had a witness present from out-of-state, the trial court allowed Mother to call her witness that day, although Father had not finished presenting his casein-chief. Mother called her first witness, her mother, to the stand. Mother conducted a direct examination of her mother, who was later cross-examined by Father’s counsel. At the end of the second day of trial, the court modified the July 29, 2024 pendente lite order in effect to allow Father “exclusive and unfettered access to [Child] on alternating weekends . . . as well as one Wednesday evening visit[,]” recognizing that there would be a significant amount of time before the parties returned for trial, that Father was not being afforded the parental time that he is entitled to, and that Mother is “unilaterally controlling the whens, the wheres, and the hows of parenting[,]” despite the existing order awarding joint legal custody.
By no fault of either party, several months passed before trial resumed, and in the interim, Mother secured new counsel. When trial continued on April 30, Father returned to the stand and Mother’s new counsel, Julius Blattner, Esq., conducted a direct examination of Father. Father was cross examined by his counsel. Father, through counsel, then resumed the presentation of his case-in-chief and called his last witness, Mother. The court recessed prior to the conclusion of Mother’s testimony.
C. Consent Order
Before the last day of trial, the parties reached a partial resolution regarding several issues before the trial court. In particular, the parties resolved the issues of physical
custody and access, personal property division, real property disposition, and alimony. Represented by counsel, Mother testified on the record that she entered into the agreement freely and voluntarily. The parties’ agreement was later memorialized in a consent order entered May 8, 2025.
The only remaining issues to be decided were (1) legal custody, 5 (2) holiday schedule, and (3) child support. The trial court held disposition on the remaining issues sub curia, and the parties submitted written closing arguments at the request of the court. The trial court delivered its oral opinion on June 25, 2025. Therein, the trial court awarded the parties joint legal custody of Child and granted Father tie-breaking authority in the event of an impasse.
D. Mother’s Motion to Alter or Amend
On July 7, 2025, Mother filed a motion to alter or amend the judgment of absolute divorce. In her motion, Mother contested the (1) tie-breaking authority granted to Father, (2) lack of inclusion of a “Care of Minor Child” provision, 6 (3) lack of retroactive child support, and (4) the alternatingyear holiday schedule. On July 22, 2025, Father filed an opposition to Mother’s motion to alter or amend. On July 23, 2025, the trial court denied Mother’s motion to alter or amend without a hearing.
Additional facts will be included in the discussion as they become relevant.
III. Discussion
First, we hold that the trial court did not abuse its discretion in denying Mother’s request for postponement. Second, we hold that the trial court did not abuse its discretion in awarding joint legal custody with tie-breaking authority to Father. Lastly, we hold that trial court did not abuse its discretion is denying Mother’s motion to alter or amend the judgment of absolute divorce. For the reasons stated herein, we affirm the judgments of the Circuit Court for Harford County.
A. Standard of Review
An appellate court reviews “a trial court’s custody determination for abuse of discretion.” Santo v. Santo, 448 Md. 620, 625 (2016). “This standard of review accounts for the trial court’s unique ‘opportunity to observe the demeanor and the credibility of the parties and the witnesses.’” Id. (quoting Petrini v. Petrini, 336 Md. 453, 470 (1994)). “A court can abuse its discretion when it makes a decision based on an incorrect legal premise or upon factual conclusions that are clearly erroneous.” In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90, 100 (2010). We will disturb a trial court’s findings of fact only if they are clearly erroneous, but we exercise de novo review over the court’s legal conclusions. Id.
Finally, “a court can abuse its discretion by reaching an unreasonable or unjust result even though it has correctly identified the applicable legal principles and applied those principles to factual findings that are not clearly erroneous.” Guidash v. Tome, 211 Md. App. 725, 736 (2013). For an appellate court to reverse a trial court’s ruling under this scenario,
[t]he decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable. That kind of distance can arise in a number of ways, among which are that the ruling either does not logically follow from the findings upon which it supposedly rests or has no reasonable relationship to its announced objective.
North v. North, 102 Md. App. 1, 15 (1994). When determining whether a custody decision was founded “upon sound legal principles” and based upon “factual findings that are not clearly erroneous[,]” this Court recognizes that “[a]n abuse of discretion should only be found in the extraordinary, exceptional, or most egregious case.” B.O. v. S.O., 252 Md. App. 486, 502 (2021).
B. Request for Postponement of Trial
For the following reasons, we hold that the trial court did not abuse its discretion in denying Mother’s request for postponement.
Mother argues that the trial court abused its discretion in denying Mother’s request for postponement when the basis for her request was to secure counsel. Mother relies on Reaser v. Reaser, 62 Md. App. 643, 648 (1985), arguing that several factors necessitated a continuance. First, Mother argues that Father would not have been prejudiced by an additional continuance, as there was only one prior continuance 7 in the case and Father consented to a continuance of the trial at the September 19 pre-trial conference. Second, Mother avers that the trial court failed to consider the issues to be tried, and the substantial interest Mother had in the disposition of those issues, which included Mother’s request for alimony and the disposition of marital property.
Father contends Mother “failed to provide the court with any evidence or reason that she did not begin finding an attorney once she was made aware of her counsel withdrawing.” Father further argues that Mother suffered no actual prejudice as she consented to some issues and was still heard on the issue of legal custody.
Maryland Rule 2-508 provides, that “[o]n motion of any party or on its own initiative, the court may continue or postpone a trial or other proceeding as justice may require.”
Md. Rule 2-508(a). A decision to grant or deny a motion to postpone a hearing is within the discretion of the court. Touzeau v. Deffinbaugh, 394 Md. 654, 669 (2006); Attorney Grievance v. O’Neill, 477 Md. 632, 661 (2022). Thus, “[a] bsent an abuse of that discretion[,] we historically have not disturbed the decision to deny a motion for continuance.” Id. This is true “even where the ground for the requested continuance is the withdrawal of movant’s counsel from the proceedings.” Fontana v. Walker, 249 Md. 459, 463 (1968).
Our Supreme Court has made clear that only in “exceptional situations” will a denial of a motion to postpone constitute reversible error. Plank v. Summers, 205 Md. 598, 605 (1954).
In Touzeau, the Court enumerated three such circumstances: (1) when “the continuance was mandated by law,” (2) when “counsel was taken by surprise by an unforeseen event at trial,” or (3) “in the face of an unforeseen event, counsel [or
pro se litigant] had acted with diligence to mitigate the effects of the surprise[.]” 394 Md. at 669–70. However, the Court stated that its “reticence to find an abuse of discretion in the denial of a motion for continuance has not been ameliorated[.]” Id. at 674. The Court noted that it had never “found it to be an exceptional situation, when the denial has had the effect of leaving the moving party without the benefit of counsel.” Id. (internal quotations omitted).
In Touzeau, a mother requested a continuance due to her lack of counsel and the serious nature of the proceedings regarding her daughter. Id. at 660. At the custody modification hearing, the court denied the mother’s motion for a continuance, finding that she had been given adequate time to obtain counsel. Id. at 662. The hearing was held with the mother proceeding pro se. Id. The father was ultimately granted physical and legal custody of their daughter and the mother appealed. Id. at 664. Our Court concluded that the mother had months to file for a postponement but waited until eleven days before the trial date. Id. at 664–65. The Supreme Court of Maryland granted certiorari and held that the trial court did not abuse its discretion in denying the mother’s request for a continuance. Id. at 678. The Court found, first, that no statute or rule mandated the granting of a continuance. Id. at 670. The Court then determined that there was not an exceptional circumstance requiring a continuance as the matter “lack[ed] the elements of surprise and due diligence.” Id. at 675.
In the present case, like in Touzeau, there is no statute or rule that obligated the court to grant Mother’s request for a postponement. See id. at 670. Also, like in Touzeau, Mother failed to establish that an exceptional, unforeseen circumstance necessitated a postponement. See id. at 675. The record reflects that Mother was notified on July 25 (or July 31 when the notice was electronically docketed) that her prior counsel intended to withdraw her appearance. At that point, trial had been scheduled, and Mother should have commenced efforts to secure counsel at that time. Mother’s exhibits to her motion to postpone include conversations with prospective counsel dated October 26 and October 28. Assuming Mother waited until August 20 to commence her search (the date the motion to withdraw was granted by the trial court), or even waited until September 10 (the date when Mother was notified by the court to employ new counsel), we see no justification for the delay until late October to communicate with prospective counsel—about representation for a trial set for the following week.
Mother contends that at the September 19 pre-trial conference, Father advised that he was not opposed to a brief postponement to afford Mother the opportunity to secure counsel. Even accepting Mother’s position arguendo, we see no justification for the delay in filing her request to postpone with the court for over a month. In sum, we hold that the trial court did not abuse its discretion in denying Mother’s request for a postponement, as this case lacks the requisite element of unfair surprise. Furthermore, we do not feel as though Mother exercised the necessary due diligence warranting relief. The trial court did not abuse its discretion in declining to postpone the matter, despite that Mother was without counsel for two out of four days of the trial.
C. Joint Legal Custody
We hold that the trial court did not abuse its discretion in awarding joint legal custody with tie-breaking authority to Father based on the evidence adduced at trial.
Mother contends that the trial court’s factual findings concerning Mother’s unwillingness to co-parent were clearly erroneous, thus, the trial court abused its discretion in awarding tie-breaking authority to Father. Mother further argues that the “findings made by the [t]rial [c]ourt with regard to [Mother] were largely drawn from her self-representation[,]” and argues that the trial court “only accept[ed] the evidence presented by [Father], with the assistance of counsel.” In essence, Mother claims the trial court’s factual findings were clearly erroneous because they were based upon bias or unsubstantiated factual findings.
In particular, Mother argues the following findings of fact articulated during the trial court’s oral ruling were motivated by improper considerations, including bias against Mother, and thus, erroneous:
• “And prior to, again, [Mother’s trial counsel’s] entry into the case, [Mother’s] courtroom behavior was atrocious.”
• “[Mother] continues to co-sleep with [Child] beyond when [Child] should be sleeping in his own bed. I noted that a number of times throughout the course of the trial that [Mother] would either refer to [Child] as ‘my child’ or ‘the baby.’ I think there gets a point where the child is four years old that we stop referring to them as the baby.”
Mother argues the following findings of fact were unsubstantiated by the evidence, and thus, erroneous:
• “[Mother] exhibited what the Court finds to be bizarre beliefs regarding illnesses, food, poisoning.”
• “As to [Mother], she has actively prevented meaningful contact between [Father] and his family, as – particularly as it pertains to [Child].”
• “[Father] wants equal time in the life of his child. [Mother] wants total control. And the Court finds that this is a completely unrealistic expectation.”
• “[Father] has made it eminently clear that he is willing to share custody. I believe [Mother] is only willing to share custody if it is on her terms.”
Mother also argues that the trial court abused its discretion as it overlooked or ignored the factual finding that “[Father is] not as engaged with child care[.]” Mother further argues that the evidence in the record underpinning this finding, namely, that Father has a “demanding work schedule and [is] inexperience[d] with [Child’s] medical needs, among other things,” should have been dispositive on the issue of an award of tie-breaking authority to Mother, since an award of tie-breaking authority to Father is against the best interest of Child.
Father contends that the trial court’s custody findings are supported by the record, and awarding joint legal custody with tie-breaking authority to him was a proper exercise of discretion. Father argues that much of the parties’ testimony “demonstrated a persistent pattern of deadlock, unilateral conduct, and inability to cooperate on essential parenting decisions[,]” thereby warranting an award of tie-breaking authority in his favor. Father contends the trial court vested tie-
breaking authority to Father “to ensure that major decisions affecting the child’s welfare could be made in a timely and consistent manner.” We agree.
In child custody disputes, the best interest of the child “is always determinative[.]” Santo, 448 Md. at 626 (quoting Ross v. Hoffman, 280 Md. 172, 178 (1977)). Legal custody confers the “right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare.” Taylor, 306 Md. at 296. Maryland courts have the authority to order joint custody as part of “the broad and inherent authority of a court exercising its equitable powers to determine child custody.” Id. at 298. In its analysis, the Court in Taylor developed a non-exhaustive list of thirteen considerations 8 which should guide courts in deciding whether to award joint custody.9 Id. at 303–11. The most important factor is the “capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare.” Id. at 304 (“Rarely, if ever, should joint legal custody be awarded in the absence of a record of mature conduct on the part of the parents evidencing an ability to effectively communicate with each other concerning the best interest of the child[.]”).
Even when the parties’ history of communication was not encouraging, however, it may still be appropriate to grant one parent tie-breaking authority. Santo, 448 Md. at 630. The Court in Santo explained:
In a joint legal custody arrangement with tie-breaking provisions, the parents are ordered to try to decide together matters affecting their children. When, and only when the parties are at an impasse after deliberating in good faith does the tie-breaking provision permit one parent to make the final call. Because this arrangement requires a genuine effort by both parties to communicate, it ensures each has a voice in the decision-making process.
To be sure, the Taylor Court’s definition of joint legal custody places parents’ decision-making rights on an equal footing; indeed, it characterizes their voices as being equal. A delegation of final authority over a sphere of decisions to one parent has the real consequence of tilting power to the one granted such authority.
But such an award is still consonant with the core concept of joint custody because the parents must try to work together to decide issues affecting their children....We require that the tie-breaker parent cannot make the final call until after weighing in good faith the ideas the other parent has expressed regarding their children.
Id. at 632–33 (citations omitted; emphasis added); see also Shenk v. Shenk, 159 Md. App. 548, 559–60 (2004) (A court may grant tie-breaking authority to one parent in a joint custody case as an appropriate “proactive provision” to resolve “probable continued conflict[.]”). The Court in Santo further explains that “tie-breaking authority does not eliminate the voice of the parent without that authority.” Santo, 448 Md. at 634–35 (citing Downing v. Perry, 123 A.3d 474, 483–85 (D.C. 2015)).
“Rather, such measure pragmatically reflects the need for some decision to be made for the child when parents themselves
cannot agree.” Id. at 636 (emphasis added).
In order for us to set the tie-breaking provision of the custody order aside, we must conclude that the trial court’s decision was “well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” North, 102 Md. App. at 15. On the record before us, we cannot reach this conclusion.
Here, the evidence adduced at trial demonstrated repeated impasse on medical and educational decisions affecting Child. Therefore, it was reasonable for the trial court to grant one party tie-breaking authority as a “proactive provision” to resolve “probable continued conflict[.]” See Shenk, 159 Md. App. at 559–60. Moreover, the trial court recognized that an award of tie-breaking authority to Mother would be “absolutely contrary” to the evidence presented to the trial court. Father testified that Mother sought and subjected Child to nonstandard preventative medical testing, without joint agreement. The evidence also demonstrated that Mother changed Child’s pediatrician without consulting Father, who only found out after the fact. Father further testified that Mother prevented Child from participating in an extracurricular activity at school because Mother refused to consent. In general, Father’s testimony demonstrated that the parties were unable to resolve major decisions collaboratively, despite his willingness to collaborate. Specifically, when asked whether Father is “able to express [his] concerns and they be considered by [Mother]” Father replied: “I don’t feel that no.” We reject Mother’s argument that the trial court was motivated by bias toward Mother in awarding tie-breaking authority to Father. Particularly, we disagree with Mother’s contention that the trial court’s skepticism toward Mother stemmed from her lack of representation, rather than her parenting, as evidenced by the findings supra.
Mother next argues that it was improper for the trial court to consider witness testimony “with heavy emphasis on the parties themselves[,]” further contending that evidence presented by her witness (her mother), was improperly discounted. First, we note that Mother, in addition to representing herself for part of trial, testified as a witness herself. As follows, it was entirely proper for the trial court to consider the substance of Mother’s testimony, as well as her credibility and demeanor. The fact that contrary testimony exists, through Mother or her witness, does not mandate reversal, as trial judges are tasked with making credibility assessments of witnesses. See Santo, 448 Md. at 625 (quoting Petrini, 336 Md. at 470). Judge Mahoney was free to credit Father’s evidence over Mother’s.
In custody cases, the “‘court’s objective is not . . . to punish’” a parent, but “to determine what custody arrangement is in the best interest of the minor children[.]” Burdick v. Brooks, 160 Md. App. 519, 528 (2004) (quoting Hughes v. Hughes, 80 Md. App. 216, 231 (1989)). We emphasize that Mother was not “punished,” despite Judge Mahoney’s clear irritation with Mother’s courtroom behavior, as she still was afforded joint legal custody. Contrary to Mother’s assertion at trial, tiebreaking authority does not diminish the “opportunity for one parent to have a say in the life of a child.” Instead, an award of joint legal custody with tie-breaking authority “require[s] that the tie-breaker parent cannot make the final call until after weighing in good faith the ideas the other parent has expressed
regarding their children.” See Santo, 448 Md. at 633 (emphasis in original).
Ultimately, the trial court had valid reasons for awarding tiebreaking authority to Father that serve the Child’s best interest in coming to “some decision . . . when the parents cannot agree.” See Santo, 448 Md. at 636. We will not disturb the court’s ruling absent an abuse of discretion.
D. Motion to Alter or Amend
We hold that the trial court did not abuse its discretion in denying Mother’s motion to alter or amend the judgment of absolute divorce.
Mother contends that the trial court improperly denied her July 7, 2025 motion to alter or amend the judgment of absolute divorce, which requested that the trial court amend the judgment as it pertains to legal custody (specifically, tiebreaking authority), the right of first refusal, child support, and the holiday schedule. Father counters that Mother “knowingly entered a partial consent judgment, expressly reserved legal custody for judicial termination, and—while represented by counsel—declined to present further evidence before the court ruled.”
We first address Mother’s contention that the trial court abused its discretion in declining to alter or amend the judgment to award legal custody with tie-breaking authority to Mother. Mother argues that the trial court failed to give due regard to Mother’s contributions to Child’s growth and development as homemaker and primary caretaker of Child. Mother argues that her request that the trial court vest tie-breaking authority to her, with the condition that at least one mediation session be completed before tie-breaking authority is invoked, was reasonable and consistent with Child’s best interest. Mother’s insistence on mediation is both impractical and unnecessarily expensive. Nor does mediation always result in a prompt decision. Accordingly, we see no abuse of discretion in the trial court’s decision not to adopt Mother’s mediation request. Because the remainder of the parties’ arguments here are similar to those previously addressed, we need not address the merits of this issue any further. For the reasons stated supra, we conclude that the trial court’s denial of Mother’s motion to alter or amend the judgment of divorce with respect to tiebreaking authority was proper. The trial court did not abuse its discretion.
Mother argues the trial court abused its discretion in declining to adopt Mother’s right of first refusal provision. Even if framed differently, see supra note 6, this is an issue related to physical not legal custody. 11 See, e.g., A.A.E v. S.K.B., No. 937, 2026 WL 206053 at *5–7 (Md. App. Jan. 26, 2026) (“We conclude that the trial court did not abuse its discretion in ruling that each party would make childcare decisions for M. during their custodial time.”). We remind Mother that physical custody was agreed upon in the consent order and expressly waived at trial, while represented by counsel. 12
A consent judgment is both a binding contract and a final judgment, enforceable absent fraud, mistake, illegality, or lack of consent, none of which are argued or present here. See Chernick v. Chernick, 327 Md. 470, 480 (1992). Rule 2-534 does not permit a party to relitigate matters already decided. See Hughes v. Beltway Homes, Inc., 276 Md. 382, 388–89
(1975). In sum, the trial court did not abuse its discretion in denying Mother’s motion to alter or amend to reflect a “right of first refusal” provision, given that Mother consented to an agreement resolving physical custody, that did not contain any such provision.
Moreover, we do not find an abuse of discretion with respect to the holiday schedule. In essence, both parties requested even time with Child on holidays, but in different ways. Mother divided most holidays in half, often suggesting that Child be in her care in the mornings and Father’s care during the evenings. Father sought an alternating-year arrangement, where Father would spend every holiday with Child one year, and Mother would spend every holiday with Child the next year, with some exceptions. Though the trial court offered no reasoning for its decision to adopt Father’s schedule over Mother’s, we cannot say that this decision was well removed from any center mark imagined by the or beyond the fringe of what we deem minimally acceptable. See North, 102 Md. App. at 15. An abuse of discretion occurs only when “‘no reasonable ‘person would take the view adopted by the [trial] court’” or the court “‘acts without reference to any guiding principles.’” George v. Bimbra, 265 Md. App. 505, 517 (2025) (quoting Alexander v. Alexander, 252 Md. App. 1, 17 (2021)). We are mindful that, in many cases, the evidence could support a custody decision made by the circuit court, or “a contrary decision to award custody” under a different arrangement. Gizzo v. Gerstman, 245 Md. App. 168, 200 (2020). For that reason, we do not second-guess a custody determination merely because another judge might have established different terms. See Jose v. Jose, 237 Md. App. 588, 599 (2018). While Mother raises the valid concern about not being able to see Child for any holiday in a given year, these concerns are tempered by the fact that Mother will spend every holiday with Child the following year. Perhaps the trial court reasoned that extensive travel time on holidays would not serve the best interests of Child, but we cannot speculate. Nonetheless, the holiday schedule containing an alternatingyear arrangement was substantively fair and we cannot reverse simply because we could have made a different, equally fair, decision.
Next, we address whether the trial court abused its discretion in supposedly disregarding Family Law Article 12-101(a) of the Maryland Code, wherein a trial court is vested with the authority to award retroactive child support for a period from the filing of the initial pleading containing such a request. Mother contends she is entitled to retroactive child support, claiming she made such a request in her answer to Father’s complaint, dated June 20, 2023.
Section 12-101 of the Family Law Article states as follows: (a) (1) Unless the court finds from the evidence that the amount of the award will produce an inequitable result, for an initial pleading that requests child support pendente lite, the court shall award child support for a period from the filing of the pleading that requests child support.
Md. Code Ann., Fam. Law § 12-101(a)(1) (emphasis added). As for other pleadings that seek child support, a trial “court may award child support for a period from the filing of the pleading
that requests child support.” Fam. Law § 12-101(a)(3). Where there is no request for pendente lite child support in an initial pleading, the trial court’s decision to award retroactive child support is discretionary. See Sims v. Sims, 266 Md. App. 337, 389 (2025).
Upon review, the prayer for relief section of Mother’s answer dated June 20, 2023 reads as follows: “E. That the Plaintiff be ordered to pay child support to be established in accordance with the Maryland child support guidelines.” As this pleading does not expressly request pendente lite child support, we cannot say the trial court disregarded FL
§ 12-101(a)(1). To be sure, the prayer for relief section of Mother’s counter complaint dated September 12, 2023, reads: “C. That the Plaintiff/Counter-Defendant be ordered to pay child support in accordance with the Maryland child support guidelines and pendente lite, rehabilitative and indefinite alimony to the Defendant/Counter-Plaintiff.” Again, this pleading does not request pendente lite child support. Here, “pendente lite” modifies alimony, thus, we do not read either of Mother’s pleadings as a request for pendente lite child support, triggering Fam. Law § 12-101(a)(1). The trial court was under no obligation to award retroactive child support, and its implicit decision not to, as evidenced by the court’s silence on the issue, was not an abuse of discretion.
IV. Conclusion
We first hold that the trial court did not abuse its discretion in denying Mother’s request for postponement. Mother was not faced with any unfair surprise, did not exercise due diligence in securing new counsel, and was not ultimately prejudiced by the trial court’s ruling.
We further hold that the trial court did not abuse its discretion in awarding joint legal custody with tie-breaking authority to Father. After considering the testimony and credibility of witnesses, the trial court expressed its concerns with the ability of the parties to reach a mutual decision on issues pertaining to legal custody. Because it was foreseeable that the parties would likely reach an impasse in the future given their history under the existing joint legal custody arrangement that did not contain any tie-breaking authority, the trial court reasonably sought it appropriate to vest such authority. Mother’s proposed “solution” of a mediation condition, while well-meaning in theory, is not a decisional process. Mediation will, at best, aid the parties in making a decision, but will not actually render a decision. It was not an abuse of discretion to vest tie-breaking authority in Father given the court’s factual finding that Mother had exercised unilateral control despite a prior court order, and the court’s valid concern of a prospective impasse on legal custody matters.
Lastly, we hold that trial court did not abuse its discretion is denying Mother’s motion to alter or amend the judgment of absolute divorce. All issues raised at this juncture were fairly decided previously or waived either by consent or insufficient pleadings.
For the reasons stated above, we affirm the judgments of the Circuit Court for Harford County. JUDGMENTS
1 See Taylor v. Taylor, 306 Md. 290 (1986).
FOOTNOTES
2 Mother’s questions appear in her principal brief as follows:
I.
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT’S REQUEST FOR POSTPONEMENT OF TRIAL.
II.
WHETHER THE TRIAL COURT ERRED IN AWARDING JOINT LEGAL CUSTODY WITH TIE-BREAKING AUTHORITY TO THE APPELLEE.
III.
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT’S MOTION TO ALTER OR AMEND THE JUDGMENT OF ABSOLUTE DIVORCE.
3 The transcript for the October 31, 2024 proceeding incorrectly lists Judge Mahoney’s first name as Philip.
4 Mr. Blattner entered his appearance on February 4, 2025.
5 Although Mother requested sole legal custody in her Parenting Plan prepared April 4, 2025, on the last day of trial, Mother stated as follows: “Right now, I want us to try shared legal custody.” Father also requested joint legal custody at trial but expressed a preference for him to hold tie-breaking authority, which Mother opposed. Accordingly, joint legal custody was actually an agreed upon issue between the parties. This was recognized by the trial court when it clarified that tie-breaking authority in particular was the central issue reserved for the court’s consideration: “. . . really, tie-breaking authority is the term we should be focusing on.” As follows, this opinion centers on whether joint legal custody with an award of tie-breaking authority to Father was appropriate, rather than mere joint legal custody.
6 The “Care of the Minor Child” provision requested here is identical to the “Right of First Refusal” provision requested in Mother’s closing argument and motion for new trial. This provision would ensure that, “if either parent is unavailable during their designated parenting time—due to work, travel, or other obligations—the other parent should be offered the opportunity to care for [Child] before a third party is engaged.”
7 The pre-trial conference was initially set for December 21, 2023. Following a hearing on April 25, 2024, the trial court reset the pre-trial conference for September 19, 2024. It was at this time that Mother was informed that trial would be set for two days, October 31, 2024 and November 1, 2024.
8 The Taylor factors include: (1) capacity of parents to communicate and to reach shared decisions affecting child’s welfare; (2) willingness of parents to share custody; (3) fitness of parents; (4) relationship established between child and each parent; (5) preference of child; (6) potential disruption of child’s social and school 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 parents; (12) impact on state or federal assistance; and (13) benefit to parents. See Taylor, 306 Md. at 304–11.
9 Prior to the enactment of Family Law § 9-201 on October 1, 2025, “the factors to be considered by a court in making such a determination [were] not specified in statute but [were] instead [ ] developed through case law.” Md. Gen. Assemb. Dep’t of Legis. Servs., The 90 Day Report: A Review of the 2025 Legislative Session, 447th Sess., at Part F-7 (2025). At the time of trial and the trial court’s custody ruling in the case sub judice, Family Law § 9-201 was not yet in effect. See id.; Md. Code Ann., Fam. Law § 9-201. In its ruling, the trial court here considered the custody factors that were applicable at the time, citing to Taylor See Taylor, 306 Md. at 304–11. As such, we assess the trial court’s ruling based on the case law that applied at the time.
10 Specifically, Mother’s witness testified that Mother’s communication style is “[c]alm. Open-Minded. Approachable. Considerate of others or thoughtful of other people’s emotions. Articulate.” In making factual findings, Judge Mahoney noted that this witness in particular “struck him,” explaining that the testimony felt “compelled” rather than genuine.
11 Custody encompasses both “physical” and “legal” custody. Taylor, 306 Md. at 296. Physical custody includes the “right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually with the parent having such custody.” Id. Whereas legal custody
involves the “right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare.” Id.
12 On the last day of trial, Mr. Blattner qualified Mother on the agreement, in order to establish, to the trial court’s satisfaction, that the agreement was entered into freely and voluntarily. The following colloquy occurred in relevant part:
[MOTHER]: I would like to move forward with reaching an agreement. [MR. BLATTNER]: Okay. All right I understand that you want the right of first refusal, and we’ve talked a lot about that. [MOTHER]: Yes.
[MR. BLATTNER]: We have discussed that with opposing party through Counsel. And at this time, we do not have an agreement regarding the right of first refusal. Do you understand that?
[MOTHER]: I do understand.
[MR. BLATTNER]: Okay. Do you understand by proceeding in this manner, by moving forward, does not preclude us, it does not stop us from continuing to discuss that term after this agreement has been entered?
[MOTHER]: Yes, I would like to continue it after this agreement has been entered.
[MR. BLATTNER]: Okay. And do you understand that that right of first refusal is not tied to this current agreement? Do you understand that?
[MOTHER]: Yes, I do.
[MR. BLATTNER]: And do you understand that you can’t at a later time say, “Well I would never have entered into this agreement had I known that he was not gonna do the right of first refusal”? Do you understand that? In other words, you can’t use the fact that there’s not a right of first refusal –
[MOTHER]: No, I understand that we’re talking about custody, but I do understand.
[MR. BLATTNER]: Okay.
[MOTHER]: And yeah, I do understand.
[MR. BLATTNER]: I just wanna make clear you can’t use the fact that there’s no agreement on right of first refusal in the future as a basis for saying, “Well, I didn’t really want to or believe that the schedule was in [Child’s] best interest.”
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s change from father to mother regarding tie-breaking authority for decisions on medical and dental issues, education, extracurricular activities, behavioral health and behavioral health prescriptions. Although father avers that he was not given proper notice that modification of legal custody was at issue, mother’s general prayer for relief was a sufficient basis for the court to address the issue of tie-breaking authority as part of the best interest analysis.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
retain joint legal and shared physical custody of the children; however, following a finding that there had been a material change in circumstance, the court ordered a change from Father to Mother regarding tie-breaking authority for decisions on medical and dental issues, education, extracurricular activities, behavioral health, and behavioral health prescriptions.
Father noted this timely appeal, presenting the following sole issue for our review:1 whether the circuit court erred in modifying legal custody as to tie-breaking authority where neither party specifically requested a change in tie-breaking authority.
For the reasons to follow, we answer in the negative and affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Divorce Proceedings and 2017 Order
In January of 2017, Audrey Chamberlin (“Mother”), appellee, filed for absolute divorce, custody, child support, and other appropriate relief regarding her marriage to Clifton Chamberlin (“Father”), appellant. While the divorce proceedings were pending, Mother and Father entered into a consent custody agreement in which they agreed to joint legal and shared physical custody of the parties’ two minor children, with specified areas of tie-breaking authority reserved to Father. The Circuit Court for Montgomery County entered the consent custody agreement by way of an order on November 14, 2017 (the “2017 Order”).
Almost seven years later, in August of 2024, Father moved to modify custody, asserting that there had been a material change of circumstance since the 2017 Order and requesting the court grant him sole legal custody of the parties’ children and revise the physical access schedule. In that motion (the “Motion to Modify”), Father additionally asked the court to “order such further and other relief that this Court deems necessary and appropriate.” Mother opposed the Motion to Modify, asking the court to deny Father’s request, keep custody the same, and “[g]rant her such other and further relief as the nature of her cause may require.”
The court held a three-day trial on the matter in June of 2025. After hearing evidence and argument from both sides, the court denied Father’s request for sole legal and physical custody. Instead, the court ruled that the parties were to
The following facts were adduced from the record and from the modification hearing. Mother and Father were married in September of 2007. The parties had two sons—H.C., born in 2013, and V.C., born in 2014.2 Mother and Father separated in December of 2015, and in January of 2017 Mother filed for absolute divorce in the Circuit Court for Montgomery County. Mother additionally filed for custody, child support, and other appropriate relief. Father counterclaimed for absolute divorce, custody, child support, and other appropriate relief. On October 16, 2017, the parties entered into a consent custody agreement in which they agreed to joint legal and shared physical custody of the children.3 Despite agreeing to share joint legal custody as to all other matters, in the agreement tie-breaking authority was reserved to Father for decisions regarding the children’s education, extracurricular activities, behavioral health, and behavioral health prescriptions. The court entered the custody agreement the following month (the “2017 Order”).
Family Dynamics Following the 2017 Order
At the time of the 2017 Order, Mother was newly sober after struggling with alcohol addiction. In 2023, Mother relapsed. Five months into her relapse she notified Father, checked herself into the hospital for treatment, and resumed sobriety. Throughout 2023 and 2024, the children began to exhibit behavioral issues in school and in their extracurricular activities. For instance, all on separate occasions, V.C. pointed a ruler at a teacher as if it were a gun, pushed a teacher, and held a plastic knife to two other students’ throats; H.C. was suspended for sexually harassing other students, for bringing
a bullet to school and displaying it to other students, and for fighting. These behavioral challenges extended to the before/aftercare program, which reported instances of racist remarks and repeated acts of aggression by both children— culminating in the permanent exclusion of the children from the program in May of 2024.
At the same time, Father began to attempt to exert increasing control and surveillance on Mother and the children. Father added himself to the parental control account on the children’s video game consoles that Mother had purchased and owned, removing Mother from the account and monitoring the children’s video game use while in her care. Father also directed H.C. to wear an activity tracking device while in Mother’s care, purportedly to measure “how busy, active and stressful [his] day was, how restorative [his] sleep was.” When Mother found out about the activity tracker, she smashed the device with a hammer because she contended H.C. “was very distressed about” wearing the device and there was “no reason that [Father] should be tracking [H.C.] while he’s in [her] home.”
On May 8, 2024, communicating via counsel, Father provided Mother a proposed parenting plan addendum, which outlined several rules that Father suggested both parents ought to follow when the children were in each parent’s respective care to “support recent behavioral and emotional challenges.” These changes fell under three umbrella goals: (1) for each child to “achieve the highest possible academic performance[,]” (2) for each child to “practice positive nutritional health[,]” and (3) for each child to “develop and practice positive physical health habits[.]”
Regarding academic performance, some of the proposed rules under the first goal were that:
• “Parents will read all teacher emails and school calendars regarding homework, grades, testing, and events.”
• “Parents will implement a structure that promotes completion of school homework as top priority by devoting time, energy, supplies, and workspace needed for homework completion.”
• “[The children] will complete their homework each night that homework has been assigned during the school year. [Parents] will communicate with one another on an as needed basis to confirm each child’s homework tasks and completion deadlines.”
• “During summertime, [the children] will continue with weekly academic activities such as math books, reading comprehension exercises, and chapter book reading.”
Regarding a “[p]roper [d]iet” for the children, some of the proposed rules under the second goal were that:
• “[The children] will prepare their breakfasts every day (not ‘heat and eat’ frozen food).”
• “Unless otherwise agreed, [the children] will not order school lunches. They will prepare and bring lunches to school every day (not prepackaged foods or ‘lunchables’).”
• “Parents will help identify recipes and ingredients
and assist [the children] with preparing homemade meals for breakfast, dinner and all meals on weekends. Added sugar will be kept at an absolute minimum.”
• “[The children] will not consume food less than 90 minutes before bedtime.”
• “[The children] will not take food into their bedrooms.”
• “[The children] will avoid sugary drinks and carbonated soda. [The children] will drink either regular milk or water.”
• “Parents will encourage [the children] to maintain a healthy body composition and not be overweight or obese; if needed, [the children’s] nutrition will be adjusted to meet healthy body composition goals.”
Regarding physical health, some of the proposed rules under the third goal were that:
• “[The children] will sleep in their own beds every night and through the night.”
• “The parents will implement a wind-down routine each night after dinner to get [the children’s] minds and bodies ready for sleep – ‘relaxing time.’”
• “Unless for special exception, [the children] will have their heads on the pillow by 8pm.”
• “The parents will monitor the frequency by which [the children] are not waking up on their own with plenty of time and energy to start their day, and will adjust bedtime accordingly.”
• “During nighttime hours, [the children’s] bedrooms will be kept dark, cool, and with white noise if needed.”
• “Until such time as the parents agree otherwise, screen time access will be regulated to zero usage Monday through Friday.”
• “On Saturdays and Sundays, [the children] will have up to one hour per day of screen time only if their chores are complete, their homework is complete, and they have otherwise exercised proper behavior which would warrant the ‘reward’ of screen time. The parents will instill in [the children] a sense that screen time is privilege and should be treated as such.”
• “The parents will supervise all screen time via readily available online parenting controls. Every screen use will be monitored for length of use and type of activity.”
Mother did not agree to Father’s proposed parenting plan.
In January of 2025, Mother and Father discussed resuming therapy for H.C.;4 however, Father was unreceptive to Mother’s suggestion that H.C. be enrolled in individual therapy and exercised his tie-breaking authority to enroll H.C. in family therapy that generally only included Father and H.C. At the time of the trial, H.C. remained unenrolled in individual therapy because Father had not responded to Mother and the prospective therapist’s inquiries. Notably, Father is a clinical psychologist. Father likewise exercised his tie-breaking authority when Mother suggested getting
the children orthodontic care, ultimately declining the recommendation of Mother’s orthodontist and, after selecting his own orthodontist, Father refused to allow the children to receive orthodontic treatment.
Father’s Motion to Modify
Based on Mother’s 2023 relapse, escalation of negative communication patterns between Mother and Father, and ongoing challenges with the children, Father filed for modification of custody in August of 2024, seeking sole legal custody, revision of the physical access schedule, “appropriate child support[,]” attorney’s fees, and “such further and other relief that this Court deems necessary and appropriate.” Mother opposed Father’s Motion to Modify, noting that she was one year sober at the time the motion was filed. Mother asked that the court retain the existing custody arrangement and “[g]rant [Mother] such other and further relief as the nature of her cause may require.”
In May of 2025, prior to the modification hearing, Mother filed a “Maryland Parenting Plan Tool” (“Mother’s Parenting Plan”). This document is a proposed “guide for how parties will make decisions” about the children. Mother’s Parenting Plan generally reflected her pleading, proposing the court maintain the status quo as to joint legal and shared physical custody, except for modification of the tie-breaking authority arrangement. Mother proposed that she be granted medical and mental health tie-breaking authority, that education and religious training decisions remain without tie-breaking authority, and that tie-breaking authority as to extracurricular activities remain with Father. The Circuit Court for Montgomery County held a three-day hearing on the merits one month later.
Mother and Father both testified at the hearing, as well as educators from both children’s schools and educators from the before/aftercare program. During Mother’s closing argument, attorney for Mother argued: [Father] stood in the way of therapy for the children. He is the one coming into court today who already has tiebreaking authority over mental health issues. And what is clear is he’s done nothing about that. There’s nothing he has done to be proactive in that.... [W]hile my client has testified that she wants things to stay the same, I believe that the [c]ourt has the authority under the very broad parens patriae doctrine that if the [c]ourt was to find that there has been a material change in circumstance, and if the [c]ourt was to find that the current custodial schedule is not in the best interest of the children, I think the [c]ourt could order that my client is the one who actually has [tie-breaking] authority over these things. Because while [Father’s counsel] would have you believe that [Father] is the one who has to do all the heavy lifting, that’s not what the evidence bore out in this case.
(Emphasis added).
The court found that there had been a material change of circumstance, specifically acknowledging the children’s behavioral challenges and Mother’s concerns “about control”
with regard to Father’s actions. Applying the factors outlined in Taylor v. Taylor, 306 Md. 290 (1986), the court ruled that the parents would continue to share joint legal custody; however, Mother would have tie-breaking authority as to medical and dental issues, education, extracurricular activities, behavioral health, and behavioral health prescription decisions.5 Following the court’s ruling, Father voiced his objection to the modification of tie-breaking authority, arguing that [M]other during her testimony testified that she was not seeking any changes to the legal custody arrangement. However the Court today has changed that and our side notes that . . . [M] other’s testimony, although there was argument from counsel[] . . . do[es] not indicate a counter petition to modify legal custody and on the witness stand, she did not request a change to the legal custody.
The court responded that Mother’s pleading included a “catch-all” by requesting that the court grant her any such “other further relief as the nature of her cause may require” and that, under Neuwiller v. Neuwiller, 257 Md. 285 (1970), if at any time there is sufficient evidence to indicate that a parent’s behaviors are having an adverse effect on the child, the court “should not hesitate to change custody.” Thus, the court reasoned, legal authority existed to order the change in tie-breaking authority. A written order reflecting the court’s determination was entered on June 24, 2025.
Father then noted this timely appeal. Additional facts are included below as relevant.
DISCUSSION
The circuit Court did not err in Modifying Legal Custody. A. Party Contentions
Father contends that the circuit court’s modification of legal custody—specifically the change in tie-breaking authority—violated his due process rights because the decision was solely based on Mother’s generalized prayer for relief. Thus, he avers that he was not given proper notice that modification of legal custody was at issue and so the court unconstitutionally overreached the issues in dispute.
In turn, Mother asserts that Father’s due process rights were not violated because he had “ample opportunity to be heard as to the issue of modification of legal custody” at trial and that, even if the generalized prayer for relief was insufficient, Father had additional notice of the issue through Mother’s Parenting Plan.
B. Standard of Review
Findings of fact made by the trial court are reviewed for clear error. Boswell v. Boswell, 118 Md. App. 1, 27 (1997) (quoting Davis v. Davis, 280 Md. 119, 125–26 (1977)). This standard requires that we “consider evidence produced at the trial in a light most favorable to the prevailing party and if substantial evidence was presented to support the trial court’s determination, it is not clearly erroneous and cannot be disturbed.” L.W. Wolfe Enterprises, Inc. v. Maryland Nat’l Golf, L.P., 165 Md. App. 339, 343–44 (2005) (quoting GMC v. Schmitz, 362 Md. 229, 234 (2001)).
However, de novo review applies instead if the court’s order “involves an interpretation and application of Maryland statutory and case law[.]” Walter v. Gunter, 367 Md. 386, 391–92 (2002). Constitutional questions likewise receive de novo review, and we determine whether the lower court’s conclusions are “legally correct.” Mayor and City Council of Baltimore v. Thornton Mellon, LLC, 478 Md. 396, 410 (2022).
As for the custody determination itself, because the trial court has the distinct “opportunity to observe the demeanor and the credibility of the parties and the witnesses[,]” we review a trial court’s ultimate determination of custody for abuse of discretion. Santo v. Santo, 448 Md. 620, 625 (2016) (quoting Petrini v. Petrini, 336 Md. 453, 470 (1994)).
An abuse of discretion arises when “no reasonable person would take the view adopted by the [trial] court or when the court acts without reference to any guiding rules or principles.” Id. (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997)) (internal quotation marks omitted).
C. Analysis Due Process
A party must have a liberty or property interest under the Fourteenth Amendment to be entitled to due process protection.6 Wagner v. Wagner, 109 Md. App. 1, 25 (1996) (citations omitted). Parents have a protectable liberty interest in the care and custody of their children; further, “when a state seeks to affect the relationship of a parent and child, the due process clause is implicated[.]” Id. (citations omitted).
Once it is determined that an interest is entitled due process protection, “the pertinent inquiry then becomes what process is due[]” based on the particular circumstances of the case. Id. at 24–25 (citing Pitsenberger v. Pitsenberger, 287 Md. 20, 30, appeal dismissed, 449 U.S. 807, 101 (1980)). This inquiry recognizes that due process is a “flexible concept[.]” Id. at 24. Even when implicated, due process does not require that a party be satisfied with the result of a legal proceeding, but instead means that each party is entitled to notice and an opportunity to be heard that is “suitable to the occasion[.]”
See id. at 23–24 (citing Burke v. Fidelity Trust Co., 202 Md. 178, 188 (1953)); Bugg v. Maryland Transport. Auth., 31 Md. App. 622, 630 (1976), appeal dismissed, 429 U.S. 1082 (1977); Blue Cross of Maryland, Inc. v. Franklin Square Hospital, 277 Md. 93, 101–02 (1976).
Turning then to the “occasion” at hand, parents have a profound liberty interest in the care and custody of their children rooted in the Fourteenth Amendment. See Conover v. Conover, 450 Md. 51, 60 (2016) (citing Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 534–35 (1925)). In custody proceedings, the heavy liberty interest held by parents is weighed against the just as heavy, if not heavier, best interests of the child determination. Caldwell v. Sutton, 256 Md. App. 230, 265 (2022) (quoting Conover, 450 Md. at 60); see also In re O.P., 470 Md. 225, 234 (2020) (quoting Boswell v. Boswell, 352 Md. 204, 219 (1998)) (“[T]he best interest of the child may take precedence over the parent’s liberty interest in the court of a custody, visitation, or adoption dispute.”). Thus, a reviewing court evaluates whether a trial court’s process for determining a modification of custody was sufficient in light of the parents’ strong liberty
interest and the best interests of the child. See Wagner, 109 Md. App. at 27. Two cases guide this analysis sub judice. In Van Schaik v. Van Schaik, the circuit court notified two parents in an ongoing divorce and custody dispute that it was to hold a hearing regarding “visitation and [the] child’s possessions.” 90 Md. App. 725, 738 (1992). At the conclusion of the hearing, the court terminated one of the parent’s joint custody rights. Id. at 730. On appeal, appellant-parent argued that the court violated his parental due process rights because—having no notice that custody was “on the table” until the court made its final ruling—he had no opportunity to present an “effective argument” regarding custody. Id. at 728–29, 740. This Court agreed with appellant and held that, under section 9-205 of the Family Law Article,7 “[t]he lack of notice constituted a denial of due process” where neither parent requested the change in custody, “there was no notice at all that [custody] would be considered[],” there was no “discussion during the hearing itself of that issue[,]” and “[a] ppellant’s first notice that custody was to be determined was when he was divested of it in the court’s decree at the conclusion of the hearing.” Id. at 739.
Likewise, in Burdick v. Brooks, this Court held that a mother was denied due process where the trial court awarded temporary custody to the father during a status conference wherein the notice to the parties provided that this conference [will be] approximately fifteen (15) minutes long. It [will be] a chance for you to inform the Judge of the issues and he will decide how to proceed. This [will] not [be] hearing or trial, there will not be time for witnesses to speak.
160 Md. App. 519, 523 (2004). On appeal, we held that the information the mother received prior to the hearing, as well as the discussion during the hearing, failed to notify her that the court could make a custody determination at the conference. Id. at 525–27.
Here, unlike in Van Schaik and Burdick, Father was on notice that the court could modify custody and thereby, tiebreaking authority. First, Father’s pleading itself—requesting modification of legal custody—placed tie-breaking authority, as a form of legal custody, at issue. Cf. McCarty v. McCarty, 147 Md. App. 268, 271 (2002) (“Legal custody carries with it the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare.”) (citation and emphasis omitted). Having placed legal custody at issue through his pleadings, Father cannot succeed in his argument that he did not have notice that an aspect of legal custody could be modified. See Wagner, 109 Md. App. at 23–24 (noting that due process does not require a party to be satisfied with the outcome of a proceeding).
Further, even if Father’s pleading requesting a custody modification did not inform him that the court could make such changes to legal custody, Mother’s Parenting Plan likewise gave Father notice that tie-breaking authority was “on the table.” The Parenting Plan requested that Mother be granted medical and mental health tie-breaking authority, that education and religious training decisions be without tie-breaking authority, and that tie-breaking authority as
to extracurricular activities remain with Father. Mother submitted this Parenting Plan to the court on May 16, 2025— exactly one month before trial. As such, in the context of the pending motion, the Parenting Plan also constituted “adequate notice[.]” See Blue Cross of Maryland, Inc., 277 Md. at 101–02.
Further, during the modification hearing, the issue of tiebreaking authority was addressed, without objection, during the proceeding and prior to the court’s ruling.8 In closing, Mother argued that “if the [c]ourt was to find that the current custodial schedule is not in the best interest of the children, I think the [c]ourt could order that [Mother] is the one who actually has tie[-]breaking authority over these things.” (Emphasis added). Certainly, Father was made aware that a change in tie-breaking authority was possible. There was no objection at that time nor contention that legal custody was not an issue before the court. Thus, we see no “surprise” such as those that violated due process in Van Schaik and Burdick and note that in the context of the pleadings and the proceedings in this case, we find it to be sufficient because notice is not required to stem only from the pleadings. Accord Blue Cross of Maryland, Inc., 277 Md. at 101–02 (explaining that “a party [who] otherwise receives adequate notice of an issue during the course of a proceeding” may not have been denied due process (emphasis added)). Accord Van Schaik, 90 Md. App. at 738–39; Burdick, 160 Md. App. at 525–27.
Therefore, while it is true that “unless an issue decided by the court is raised by the pleadings, or a party otherwise receives adequate notice of an issue during the course of a proceeding, due process is denied[,]” Blue Cross of Maryland, Inc., 277 Md. at 101, Father raised the issue himself in the pleadings and received other forms of “adequate notice” in light of the circumstances here. Thus, Father’s due process rights were not violated. See Lasko v. Lasko, 245 Md. App. 70, 82–83 (2020).
Additionally, we find that the trial court did not commit error in concluding that here, Mother’s general prayer for relief was a sufficient basis for the court to address the issue of tie-breaking authority as part of the best interest analysis. In custody matters, a party’s requested relief does not limit a court’s authority to grant an award in the child’s best interest even if such an award deviates from the wishes of either party. See Kerns v. Kerns, 59 Md. App. 87, 94 (1984); see also Santo, 448 Md. at 629 (“[N]o agreement of the parties can bind the court to a disposition other than that which a weighing of all factors involved shows to be in the child’s best interest.”) (quoting Eschbach v. Eschbach, 436 N.E.2d 1260, 1263 (N.Y. 1982)). As the issue herein was custody and the court ruled based on the best interests of the children, the general prayer for relief clause found in the pleadings of both Mother and Father did permit the trial court to thoroughly address the issue. Hence, the circuit court did not err in ruling based on the best interests of the children here.
Modification of Legal Custody
Last, we turn to the substance of the circuit court’s ruling.9 A trial court must engage in a two-step process when evaluating a request to modify custody. Velasquez v. Fuentes, 262 Md. App. 215, 246 (2024). “First, the circuit court
must assess whether there has been a ‘material’ change in circumstance.” Id. (quoting Gillespie v. Gillespie, 206 Md. App. 146, 170 (2012)) (further citation omitted). Second, if a circuit court finds that there has been a material change, “the court proceeds to consider the best interests of the child as if the proceeding were one for original custody.” Id. As to the court’s recognition of a material change of circumstance, “the term ‘material’ relates to a change that may affect the welfare of a child.” Wagner, 109 Md. App. 28 (citing McCready v. McCready, 323 Md. 476, 593 (1991)). For example, this Court has held that the circuit court did not err in finding a material change of circumstance where a mother moved out of state and hid the child with her, and once the child was returned to the custody of the father she was enrolled in a new school and started attending therapy. Id. As evident, the court’s inquiry in custody modifications is fact-specific. See generally id. at 27; see also Taylor v. Taylor, 306 Md. 290, 303 (1986) (“Formula or computer solutions in child custody matters are impossible because of the unique character of each case, and the subjective nature of the evaluations and decisions that must be made.”)
Here, in deciding whether there was a material change of circumstance, the court focused on “the children’s behavior and the subsequent academic challenges that [they were] having.” The court referenced testimony of the parties regarding failed attempts to secure tutors for the children and Father’s increasing attempts to control and track the children. In recounting the testimony, the court observed that the parents were struggling to effectively communicate with each other; that the children displayed severe behavioral problems; and that Father refused to allow the children to participate in IEP plans despite their behavioral challenges at school. The court ultimately found that the children’s academics and behavioral challenges evidenced a material change of circumstance. Thus, just as in Wagner, there was sufficient evidence here to support a finding that the best interests of the children had changed.
We next turn to the court’s custody determination. We review custody determinations under the deferential abuse of discretion standard. Santo, 448 Md. at 625. This Court and the Supreme Court of Maryland “have time and time again affirmed custody determinations where the trial judge embarked upon a thorough, thoughtful and well-reasoned analysis congruent with the various custody factors.” Azizova v. Suleymanov, 243 Md. App. 340, 347(2019) (citation omitted). Where “[t]he decision of the circuit court was predicated on its thorough review of the Taylor factors, deliberation over custody award options, sober appreciation of the difficulties before it, and use of strict rules including tie-breaking provisions to account for the parties’ inability to communicate and was rational and guided by established principles of Maryland law[,] [n]o abuse of discretion occurred[.]” Id. at 348 (citing Santo, 448 Md. at 646) (quotation marks omitted).
Taylor identifies thirteen non-exhaustive factors that serve as a guide for trial courts to evaluate the best interest of the children at issue, specifically when considering joint custody: (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; (5) preference of the child; (6) potential disruption of child’s social and school 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; and (13) benefit to parents.
Kadish v. Kadish, 254 Md. App. 467, 504 (2022) (citing Taylor, 306 Md. at 304–11).
In this case, the court specifically addressed the Taylor factors, noting that among the applicable Taylor factors, the parties communicated in a respectful manner; however, the court noted that the parents appeared to talk past each other, and in some instances, Father ignored Mother’s questions and concerns. Additionally, the court found that the current decision-making paradigm “has not worked[,]”
again acknowledging Father’s unwillingness to get the children orthodontic care, educational support plans, and therapy—all of which the court found would have been beneficial to the children. Thus, the court reasoned, it was in the best interest of the children to give Mother the tiebreaking authority as to medical and dental issues, education, extracurricular activities, behavioral health, and behavioral health prescription decisions. The circuit court here thoroughly reviewed the applicable Taylor factors, discussed the “difficulties before” the court, and enunciated the specific rationale for why the court’s analysis “account[ed] for the parties’ inability to communicate”—recognizing that, in this case, the inability to communicate took the form of the parties talking past each other and Father’s refusal to make decisions regarding education and health that were in the best interests of the children. Therefore, the circuit court did not abuse its discretion in modifying tie-breaking authority. See Azizova, 243 Md. App. at 348 (quoting Santo, 448 Md. at 646).
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Rephrased from:
WHETHER THE CIRCUIT COURT’S 2025 MODIFICATION ORDER ENTERED IN SOLE RELIANCE UPON A GENERALIZED PRAYER FOR “OTHER AND FURTHER RELIEF” VIOLATED RIGHTS OF DUE PROCESS BY OVERREACHING THE ISSUES IN DISPUTE AS FRAMED BY THE PARTIES AND PRESENTED TO THE COURT.
2 We use initials for each individual child to preserve anonymity; and we refer to H.C. and V.C. jointly as the “children.”
3 The consent custody agreement maintained the shared physical custody schedule set forth in an earlier pendente lite order.
4 H.C. had previously participated in therapy for a period of time in 2020.
5 The court additionally ordered that each party would have access to all of the children’s records and information, neither side was to receive attorney’s fees, and all other aspects of the 2017 Order, including physical custody, were to remain in place.
6 Article 24 of the Maryland Declaration of Rights mirrors the Fourteenth Amendment of the United States Constitution; hence, U.S. Supreme Court interpretations of the Fourteenth Amendment may serve as authority for understanding Article 24’s due process requirement. See Burdick v. Brooks, 160 Md. App. 519, 524 n.2 (2004) (citation omitted). Thus, we rely on both Fourteenth Amendment and Article 24 jurisprudence.
7 At the time Van Schaik was decided, section 9-205 of the Family Law Article stated: “Before making a decree under this subtitle, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated, and any person who has physical custody of the child.” Although section 9-205 was repealed in 2005, similar language now appears in section 9.5-205. Md. Code (2004, 2024 Repl. Vol.), § 9.5-205(a) of the Family Law Article (“Before a child custody determination is made under this title, notice and an opportunity to be heard in accordance with the standards of [section] 9.5-107 of this title shall be given to all persons entitled to notice under the law of this State as in child custody proceedings between residents of this State, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.”). See also Burdick v. Brooks, 160 Md. App. 519, 526 n.3 (2004).
8 Father acknowledged this following the court’s order, in his subsequent objection to the court stating: “[M]other’s testimony, although there was argument from counsel[] . . . do[es] not indicate a counter petition to modify legal custody and on the witness stand, she did not request a change to the legal custody.” (Emphasis added).
9 We address this issue for completeness, acknowledging that although Mother briefed the issue fully, Father instead “assume[d] arguendo” that the court’s factual findings were sufficiently supported by the record.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court reversed the Baltimore County Circuit Court’s order adjudicating father in constructive civil contempt and sentencing him to 90 days’ incarceration unless he paid $4,505 to mother on or before Oct. 2, 2025. The circuit court failed to ensure that father was aware of his right to counsel and had voluntarily waived that right at a proceeding in which he could be sentenced to incarceration.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
on February 27, 2023.
In April 2024, Mother filed a contempt petition based on Father’s failure to make full child support payments. In August 2024, both parties appeared unrepresented at a hearing before a magistrate. At the hearing, Father asserted that his failure to pay was due to being unemployed for several months following an automobile accident but informed the court that he would be returning to work the following month, in September 2024. The magistrate continued the hearing for 90 days to give Father the opportunity to either get back to work and resume paying child support, or to bring in the paperwork necessary to show that he was unable to work for medical reasons.
Appellant Steven Richards (Father) appeals an order of the Circuit Court for Baltimore County adjudicating him in constructive civil contempt and sentencing him to 90 days’ incarceration in the Baltimore County Detention Center unless he paid to appellee, Joan Richards (Mother), the amount of $4,505 on or before October 2, 2025. Father timely appealed that order and, on October 1, 2025, this Court granted Father’s motion to stay the order of the circuit court pending the resolution of this appeal. Father now asks us to address (1) whether the circuit court erred in sentencing him to incarceration without first ensuring that he had been informed of and voluntarily waived his right to be represented by counsel; and (2) whether the circuit court erred in imposing a determinate sentence of incarceration with no provision for Father to show that he did not have the present ability to pay or to purge the contempt once the incarceration began. For the following reasons, we reverse and remand for further proceedings.
BACKGROUND
Father and Mother are former spouses who, on January 20, 2023, entered into a Marital Settlement Agreement providing that Mother would have primary physical and joint legal custody of the party’s two minor children. The agreement further provided that Father would pay $664 per month in child support. The circuit court entered a Judgment of Absolute Divorce incorporating those terms
At the follow-up hearing in December 2024, the parties again appeared unrepresented. Mother reported to the magistrate that she had not received a child support payment since May 2024. Father reported that he had only recently started working at the end of November 2024 and had only just received his first paycheck. The magistrate calculated arrears of $4,600, recommended withholding a finding of contempt, and directed Father to resume making child support payments of $664 per month with an additional $165 per month toward the arrearage. The circuit court adopted the magistrate’s recommendations and entered an Order on December 17, 2024.
On February 21, 2025, Mother moved to reopen the proceedings on the grounds that Father had not resumed making child support payments. On March 18, 2025, Mother filed a second contempt petition, this time seeking incarceration. Three days later, on March 21, 2025, the circuit court issued a Show Cause Order that included an attached Notice informing Father that if jail time was being sought, he had a right to a lawyer and might qualify for appointed counsel if he could not afford to retain his own.
A hearing was held in front of a magistrate on June 20, 2025. Neither Mother nor Father were represented by counsel. Mother informed the magistrate that the only child support she had received from Father were partial payments in January and April of 2025, and that Father owed approximately $9,500 in arrearages. Father responded that he was unable to pay because, among other reasons, he had again been unemployed for several months. The magistrate withheld making a finding of contempt and continued the case for 30 days to allow Father time to find a job.
A second hearing was held on July 21, 2025, and again, neither party was represented by counsel. Father informed the magistrate that he had yet to find employment. Mother reported that arrears had grown to $10,777. The magistrate
again withheld a contempt finding and referred the case to the circuit court.
The circuit court held a hearing on the contempt petition on September 2, 2025. Although the court noted at the outset that Mother was seeking incarceration and that both parties were unrepresented, the court made no mention of Father’s right to counsel and did not inquire into why he lacked a lawyer or whether he wanted one. Mother testified that she last received a payment from Father in April in the amount of $50, and that Father had since blocked her number so she was unable to contact him. Mother confirmed to the court that she was seeking jail time and testified that Father owed over $12,000.
Father testified that his failure to pay was due to prolonged unemployment and difficulty finding a new job. He asserted that the day after the hearing, he was scheduled to start a new position with a former employer at significantly reduced pay. In response to questioning by the circuit court, Father acknowledged that even when he had been working at a higher paying job, he had not made any child support payments. Father alleged that he was too behind on other bills and could not afford to put anything towards child support. Father further acknowledged that he had never sought a modification of his child support obligation based on the changes in his employment and earnings, and did not have any documentation to support his alleged expenses.
The circuit court found by clear and convincing evidence that Father had not complied with the December 2024 child support order and calculated the total arrearage to be $12,000. The court credited evidence that Father had only been employed for a few months between December 2024 through May 2025, and thus determined that Father was responsible for only six months of arrearages in the amount of $4,504.
The circuit court further found, however, that Father had failed to carry his burden of proof to show that he did not have the ability to pay the court-ordered child support for
the time he was employed. The circuit court thus entered an order finding Father in constructive civil contempt; imposed a sanction of ninety (90) days incarceration at the Baltimore County Detention Center to begin on October 2, 2025; and set as a purge provision that Father could purge the contempt by paying to Mother, on or before October 2, 2025, the amount of $4,504.
DISCUSSION
I. Notice of Right to Counsel
In his first issue, Father contends that the circuit court erred because it failed to ensure that he was aware of his right to counsel and had voluntarily waived that right at a proceeding in which he could be sentenced to incarceration. We agree.
It is well established that in civil contempt proceedings where there is a possibility of incarceration, the alleged contemnor has a right to counsel and it is the responsibility of the circuit court to ensure that they are aware of this right. Zetty v. Piatt, 365 Md. 141, 155 (2001); MD. RULE 15-206(e) (2)(A). If the alleged contemnor decides to waive that right, they must confirm on the record that the waiver is knowing and voluntary. Zetty, 365 Md. at 155; see also Rutherford v. Rutherford, 296 Md. 347, 363 (1983) (holding that “an indigent defendant in a civil contempt proceeding cannot be sentenced to actual incarceration unless counsel has been appointed to represent [them] or [they have] waived the right to counsel”).
At the beginning of the hearing, Mother confirmed to the circuit court that she was asking for jail time to enforce the child support order. It is clear from the record, however, that at no point did the circuit court ask Father if he was aware that he had the right to an attorney or attempt to determine whether Father was knowingly and voluntarily waiving that right. Accordingly, we reverse the court’s Order of Contempt and remand for further proceedings.1
JUDGMENT REVERSED; SENTENCING ORDER VACATED. REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE ASSESSED TO APPELLEE.
FOOTNOTES
1 Although we have reversed the circuit court’s order based on Father’s first issue, we note that we would also have found reversible error based on Father’s second issue challenging that the contempt order failed to include necessary purge provisions. See generally, Coleman-Fuller v. State, 192 Md. App. 577, 604 (2010) (addressing an issue that may occur on remand). Before a defendant in a civil contempt proceeding can be subjected to confinement, there must be purge provisions in place that give the contemnor “the ability to avoid both the commencement and the continuation of incarceration.” Bradford v. State, 199 Md. App. 175, 195-96 (2011) (cleaned up). Here, the only way for Father to purge the contempt was to pay the arrearage in full prior to the date he was to be incarcerated. There were no provisions that would have allowed Father to show that either he lacked the present ability to pay the entire purge amount, or for Father to purge the contempt once the incarceration commenced. Without such purge provisions, the circuit court erroneously imposed a determinate sentence “reserved for criminal contempt proceedings.” Bradford, 199 Md. App. at 202.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 11 MFLU Supp. 5 (2026)
Indefinite alimony; disparity; standard of living
Shivani Bajaj v.
Rueben Bajaj
No. 1180, September Term 2025
Argued before: Wells, C.J., Reed, Wilson (specially assigned), JJ.
Opinion by: Wells, C.J.
Filed: March 5, 2026
The Appellate Court affirmed the Montgomery County Circuit Court’s award of indefinite alimony to wife in the amount of $13,500 per month. The circuit court conducted a thorough and detailed analysis of the statutory factors set forth in Maryland Code, Family Law Article § 11-106(b) before arriving to its alimony determination. The court properly found wife was entitled to indefinite alimony based on the unconscionable disparity between the parties’ respective standards of living.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
FACTUAL AND PROCEDURAL BACKGROUND
The parties entered an arranged marriage in India on March 31, 2012, following three preliminary meetings in India, Switzerland, and Italy. Following their marriage, Wife moved from India to the United States, and the parties had two additional wedding ceremonies, including one in Washington, D.C.
After relocating to the United States, the parties initially moved into Husband’s parents’ compound (the “Norton Property”) in Potomac, Maryland. In 2013, the parties purchased real property known as 10024 Avenel Farm Drive in Potomac, Maryland, (the “Avenel Property”) for $2.4 million. The Avenel Property was a seven-bedroom, sevenbathroom home situated on a golf course with a three-car garage, gym, and finished basement. The parties resided at the Avenel Property for a few months while an addition was being constructed on the Norton Property.
This case returns to us following litigation concerning the dissolution of the marriage between appellant Shivani Bajaj (“Wife”) and appellee Rueben Bajaj (“Husband”).
In a prior appeal, this Court affirmed a three-judge panel’s determination that the custody schedule established by the trial court was not supported by its articulated reasoning and remanded for further explanation. Bajaj v. Bajaj, 262 Md. App. 435 (2024). Following remand, the parties entered an Amended Consent Custody and Access Order, and the case proceeded to a ten-day merits trial on the remaining issues, including alimony and child support. On June 20, 2025, the Circuit Court for Montgomery County entered a Judgment of Absolute Divorce awarding Wife indefinite alimony in the amount of $13,500 per month, child support in the amount of $10,708 per month, and a monetary award of $222,049.36— reflecting 75% of the marital property.
Wife now appeals and presents three questions for our review:
I. Did the circuit court abuse its discretion in the amount of alimony awarded to Wife?
II. Did the circuit court err in finding Wife voluntarily impoverished?
III. Did the circuit court err in the amount of potential income imputed to Wife?
For the reasons that follow, we answer each question in the negative and affirm.
The addition to the Norton Property cost $4.2 million and included services completed by a luxury contractor and an interior designer based in Florida. The parties flew to Italy to select finishings for the home, which were transported to the United States via shipping vessel. The addition featured five bedrooms, tile floors with radiant heat, Viking appliances, a study, a wine cellar, tea rooms, a fishtank, and iPads in every room for climate and lighting control.
Importantly, this addition was paid for and owned by Husband’s parents; the parties never paid rent to live there. Husband’s parents also paid for most of the furnishings, and Wife’s parents paid for some of the artwork. The evidence established that throughout the marriage, the parties’ lifestyle was largely funded by the generosity of both sets of parents.
Throughout their marriage, the parties enjoyed what can only be described as a luxurious lifestyle. They drove expensive automobiles, including Porsches, Audis, Bentleys, and Mercedes-Benz vehicles. The family enjoyed high-end clothing from brands such as Fendi, Gucci, Prada, Neiman Marcus, and Bergdorf-Goodman. Wife owned many handbags, including an “exotic skin” bag costing $45,000. The circuit court determined that Wife’s designer handbag collection totaled $786,000. The parties also carried an American Express black card, which had a $10,000 annual membership fee.
The parties have two children, twins K. and R., born on June 22, 2015. The circuit court found the children’s nanny, Asha Lama, was mostly responsible for the “parental duties” during the marriage.
Throughout the marriage, Husband was employed by his family’s company, White Star Management, as the chief
executive officer. The circuit court found that Husband’s income is $1,563,037.40 per year, including a salary of about $500,000 per year and without consideration of his additional financial resources. In addition to his income, Husband does not pay rent, mortgage, utilities, property taxes, or homeowner’s insurance, as he continues to reside on his parents’ property.
The circuit court also found that prior to the marriage, Husband’s parents had provided him with a trust fund of approximately $10 million, which the parties spent down entirely during the marriage.
The circuit court found “the parties agree that the [Wife] never worked during the marriage, and [Wife] testified it was her understanding, when the parties got married, that she would not be expected to work during the marriage. Instead, she would be caring for the children and doing charity work.”
Prior to the marriage, Wife had worked for her father’s company in India for approximately one and a half to two years. She testified that she was interested in learning the business but did not put in many hours. The court also found Wife worked at S. Oliver Fashion Company before meeting Husband and that she held herself out as an executive Wife holds a degree in human resources management from Cardiff University in Wales and speaks both English and Hindi.
On February 14, 2022, Husband filed a Complaint for Absolute Divorce. On March 23, 2022, Wife filed a CounterComplaint for Absolute Divorce, or in the alternative, Limited Divorce, and Related Relief, requesting alimony, child support, monetary award, distribution of retirement benefits, attorney’s fees, and suit monies.
On July 20, 2022, the court held a pendente lite hearing. On July 28, 2022, the Family Division Magistrate orally recommended Husband pay Wife the sum of $12,935.81 per month in pendente lite alimony and $14,699.01 per month in pendente lite child support, for a total monthly support obligation of $27,634.82.
On December 9, 2024, the parties entered a Consent Custody Order awarding Wife primary physical custody and Husband access every Wednesday to Thursday morning and every other weekend from Friday after school to Monday at school drop-off.
The merits trial proceeded on January 13, 15-17, 21-24, 2728, 2025, and May 16, 2025. The circuit court heard testimony from several witnesses regarding Husband’s income. Kelly Leoni, the chief financial officer for Smart Technology (which includes White Star Management), testified that Husband has served as CEO of White Star Management since 2002, a company that manages real estate owned by his parents. Ms. Leoni testified that in addition to his salary, Husband receives passive income from White Star Holdings generated from capital gains, interest, and dividends from various entities. A financial statement prepared for the Hingham Institute in April 2024, and admitted as Plaintiff’s Exhibit 26, showed Husband’s net worth at $43 million and his projected income for 2024 at $1.7 million. The court found Ms. Leoni to be a credible witness. David De Jong, qualified as an expert in tax accounting and financial forensics, testified regarding Husband’s income, tax returns, and K-1s, and determined that Husband’s average income over the last five years was
$1,355,502, and his average income over the last three years was $1,237,661.
Husband called Kathleen Sampeck (“Sampeck”) as an expert witness in vocational rehabilitation to offer her opinion as to Wife’s vocational abilities, employment positions in said vocations, and earning capacity in those positions. Sampeck did not have the opportunity to interview Wife, and instead formed her opinion based on Wife’s deposition, Wife’s supplemental answers to interrogatories, and an article published about Wife while she was working in India. Sampeck opined that Wife could be employed in approximately four months, earning between $40,000 and $50,000 per year in the area of assistant management for women’s clothing or as a human resources assistant. She further opined that if Wife were to obtain her MBA, which could cost around $55,000, she could earn close to $200,000 as either a financial advisor or investment specialist—areas in which Wife had previously expressed interest. Sampeck also considered Wife working in a real estate profession based on Wife’s one-time interest in the field and opined that the earning capacity would be between $37,000 and $47,000 for all agents, and between $67,000 and $77,000 for more successful agents, though Wife would need to complete at least 60 hours of training and pay for training and licensure. Sampeck also collected data from the Department of Labor and from employment securities offices in Maryland, the District of Columbia, and Virginia to determine what jobs were available, and she opined there were several job openings in the area Wife could obtain without securing additional training.
On June 16, 2025, the trial judge provided her oral opinion after “read[ing] every exhibit that was submitted” and “consider[ing] all of the arguments, the pleadings, everything else.” The judge made clear “that the Court has reviewed and considered everything over multiple weekends, early mornings, and late nights to get this opinion done.”
The court found Husband’s salary from White Star Management had been relatively consistent, ranging between $480,060 and $600,000—his salary was $500,000 in 2013, $573,139 in 2020, and $488,486 in 2023. The court determined it was proper to include Husband’s capital gains, dividend income, interest income, and rental income as part of his actual income. Averaging Husband’s income over the three years preceding trial, the court found Husband’s total income to be $1,563,037.04 per year, or $130,253.09 per month. The court also noted the parties’ lifestyle during the marriage was largely attributable to Husband’s parents’ generosity and Husband’s nonmarital assets, and the parties could not have afforded their lifestyle on Husband’s salary or income alone.
The circuit court found Sampeck to be credible and gave weight to her opinion and report. The circuit court determined Wife was voluntarily impoverished. The court considered that Wife had no physical condition preventing her from working; that she holds a degree in human resources management from Cardiff University in Wales and speaks both English and Hindi; that she has made no efforts to obtain employment or secure retraining since the separation nearly three years earlier despite testifying she could not meet her monthly expenses; and that she did not plan to change her spending habits after the divorce. The court credited
Sampeck’s testimony that Wife could obtain employment within approximately four months and earn between $40,000 and $50,000 per year The court also found that neither Wife nor her father were credible when testifying about Wife’s past work history.
Having found Wife voluntarily impoverished, the circuit court applied the factors from Goldberger v. Goldberger, 96 Md. App. 313 (1993), to determine the amount of income to impute. The court considered that Wife was 43 years old at the time of trial with no known mental or physical conditions impacting her ability to work; that she holds a college degree but has not worked in 12 years and has never worked in the United States; and that Sampeck’s research confirmed several job openings in the area for which Wife could qualify without additional training. The court also considered Wife’s educational background, prior earnings of approximately $800 per month when she worked for her father in India, and her knowledge of luxury items and ability to manage household staff. Based on the evidence, the court imputed $44,000 in income annually to Wife, finding she could earn at least that amount without any additional training.
A Judgment of Absolute Divorce was entered on June 20, 2025, granting Wife indefinite alimony in the sum of $13,500 per month and child support in the sum of $10,708 per month, and a monetary award of $222,049.36 which reflected 75% of the marital property. Additionally, Husband was ordered to continue paying the children’s private school tuition, tutors, extracurricular activities, health insurance, therapist fees, and extraordinary medical expenses.
On June 30, 2025, Wife filed a timely Motion to Alter or Amend. The court denied Wife’s Motion to Alter or Amend on July 17, 2025, and entered an Amended Judgment of Absolute Divorce the same day. This timely appeal followed.
STANDARD OF REVIEW
This Court affords “great deference to the findings and judgments of trial judges, sitting in their equitable capacity, when conducting divorce proceedings[,]” Malin v. Minenberg, 153 Md. App. 358, 415 (2003) (quoting Tracey v. Tracey, 328 Md. 380, 385 (1992)). “When reviewing a trial court’s award as to alimony, an appellate court will not reverse the judgment unless it concludes that ‘the trial court abused its discretion or rendered a judgment that was clearly wrong.’” Malin, 153 Md. at 414–15 (quoting Crabill v. Crabill, 119 Md. App. 249, 260 (1998)). However, this Court reviews the trial court’s factual findings on voluntary impoverishment of a parent or spouse for child support or alimony purposes under a clearly erroneous standard, while the court’s ultimate rulings are reviewed for an abuse of discretion. See Long v. Long, 141 Md. App. 352 (2001). Furthermore, if the potential income amount the trial court imputes to a spouse or parent is “realistic, and the figure is not so unreasonably high or low as to amount to an abuse of discretion, then the court’s ruling may not be disturbed.” Dillon v. Miller, 234 Md. App. 309, 320 (2017) (quoting Petitto v. Petitto, 147 Md. App. 280, 317–18 (2002)) (cleaned up).
DISCUSSION
I. The Circuit Court Did Not Abuse its Discretion in the Amount of Alimony Awarded to Wife.
A. Parties’ Contentions
Wife contends the circuit court abused its discretion when determining the alimony award because the award of $13,500 per month is insufficient to relieve the unconscionable disparity between the parties’ respective standards of living. Wife argues that applying the approach set forth in Turner v. Turner, 147 Md. App. 350 (2002), and adopted in Solomon v. Solomon, 383 Md. 176 (2004), her annual income— between her imputed income of $44,000 per year and her alimony award of $162,000 per year—totals $206,000, which represents only 13.18% of Husband’s annual income of $1,563,037.40. Wife asserts that this percentage is insufficient to cure the unconscionable disparity, particularly given Husband’s vast wealth and resources.
Husband contends the circuit court’s award was not an abuse of discretion. Husband argues Wife’s reliance on Turner is misplaced because the facts are readily distinguishable: in Turner, the parties were married for more than 30 years and the wife was in her fifties at the time of divorce, whereas here, the parties were married for less than ten years when Husband filed for divorce and Wife was only 43 years old at trial. Additionally, Husband emphasizes that the circuit court found Wife could earn up to $200,000 per year with additional training or schooling, and that her tax-free alimony of $162,000 per year is equivalent to approximately $240,000 in pre-tax income. Husband further argues Wife’s percentage calculations fail to account for his substantial financial obligations, including alimony, child support, and the children’s educational and medical expenses, and that when these obligations are properly considered, there is no dramatic income disparity that is morally unacceptable.
B.Analysis
“Generally speaking, alimony awards, though authorized by statute, are founded upon notions of equity; equity requires sensitivity to the merits of each individual case without the imposition of bright-line tests.” Tracey v. Tracey, 328 Md. 380, 393 (1992) (citation omitted).
Although not bound by any formal checklist, this Court must consider all necessary factors when determining an alimony award. Kaplan v. Kaplan, 248 Md. App. 358, 372 (2020). Maryland Code, Family Law Article (“FL”) § 11106(b) sets forth the relevant factors which include: (1) the ability of the party seeking alimony to be wholly or partly self-supporting; (2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment; (3) the standard of living that the parties established during their marriage; (4) the duration of the marriage; (5) the contributions, monetary and non-monetary, of each party to the well-being of the family; (6) the circumstances that contributed to the estrangement of the parties; (7) the age of each party; (8) the physical and mental condition of each party; (9) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony; (10) any agreement between the parties; (11) the financial needs
and financial resources of each party; and (12) whether the award would cause a spouse who is a resident of a related institution to become eligible for medical assistance earlier than would otherwise occur.
Maryland law favors the award of alimony for a fixed term—rather than indefinitely—to reflect the principle that alimony serves to rehabilitate the economically dependent spouse and facilitate that spouse becoming self-supporting. St. Cyr v. St. Cyr, 228 Md. App. 163, 184–85 (2016). See also Holston v. Holston, 58 Md. App. 308, 321 (1984) (“[T] he economically dependent spouse is required to become self-supporting, even though that might result in a reduced standard of living.”); Dave v. Steinmuller, 157 Md. App. 563, 672 (2004) (“[T]he purpose of alimony is not to provide a lifetime pension for a spouse, but to provide financial support to an economically dependent spouse until he or she becomes self-supporting.”).
In exceptional cases, however, indefinite alimony may be appropriate “if the standard of living of one spouse will be so inferior, qualitatively or quantitatively, to the standard of living of the other as to be morally unacceptable and shocking to the court.” Kaplan, 248 Md. App. at 371. After considering the initial factors in the alimony analysis, when awarding indefinite alimony, the court must find that “(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.” Id. at 373 (citing FL § 11106(c)).
The circuit court here conducted a thorough and detailed analysis of the statutory factors set forth in FL § 11-106(b) before arriving to its alimony determination. The court properly found Wife was entitled to indefinite alimony based on the unconscionable disparity between the parties’ respective standards of living. In coming to its determination, the court noted:
The defendant is young and healthy and has no disability. However, I find that even once the defendant reaches her maximum earning capacity, that the respective standards of living of the parties will be unconscionably disparate. At the current income determinations, her percentage of the income is three percent. Even at her highest earning capacity of $200,000, which she would not obtain for many years, her percentage of the income, assuming that the plaintiff makes no further income increase, is 11 percent.
The court’s analysis reflects a careful determination that this is an exceptional case warranting an award of indefinite alimony. The question before us on appeal, however, is whether the court abused its discretion in setting the amount of that award at $13,500 per month. We conclude it did not.
Following a ten-day merits trial with testimony and reports from at least ten different expert and lay witnesses, the judge provided an oral opinion that spanned many hours and meticulously explained Wife’s alimony award and the
rationale underlying it. The court’s oral opinion clearly demonstrated the judge exercised sound discretion in coming to the award of $13,500. The court began by noting the challenges presented by the parties’ submitted financial statements:
I will note that while I understand that the financial statements were filed based on both parties’ historic spending and defendant’s anticipated expenses, these parties cannot afford this lifestyle anymore. Much of the spending during the marriage was done using [Husband’s] nonmarital money and relying on one or both sets of the parties’ parents. The parties could not have afforded their lifestyle on the [Husband’s] salary or his income alone. Now that there will be two separate households, both parties are going to have to make adjustments to their lifestyle. It would be unrealistic to believe that on [Husband’s] income alone, the parties could maintain the exact same lifestyle in two separate homes.
[Wife] testified at length about her financial needs and her steadfast belief that she should have the exact same standard of living as before the separation. That is not only unreasonable based on the [Husband’s] income, but also because [Wife] has refused to work, look for work, or reduce her expenses. Her monthly expenses for herself alone totals $971,199.72 per year. That is almost double the [Husband’s] base salary.
The court then methodically reviewed each category of Wife’s claimed expenses, making reasoned adjustments based on the evidence presented. A consistent consideration throughout the Court’s analysis was that, despite the parties’ extravagant lifestyle during the marriage, a substantial portion of that lifestyle was financed by Husband’s parents, not by the parties’ own earnings or assets. For example, regarding Wife’s claimed vacation expenses of nearly $130,000 per year, the court stated that while the parties did “travel extensively during the marriage, the parties relied on [Husband’s] parents and his nonmarital assets to fund those trips.” Accordingly, the court reduced Wife’s vacation expenses to $1,000 per month to be consistent with what Husband was allowed. Similarly, the court reduced Wife’s claimed clothing expense from $4,890 per month to $1,750 per month and removed the separate handbag expense entirely, finding that “[u] nfortunately [Wife] will need to adjust her spending habits.”
After conducting this detailed analysis, the court determined Wife’s reasonable monthly need was $17,097.13. And then, in consideration of all the statutory factors— including the fact that the marriage was relatively short, that the court found the wife was voluntarily impoverished, the contributions of the parties to the marriage/family, the Wife’s potential earning potential, etc.—the court arrived at an alimony award of $13,500 per month.
Wife’s reliance on Turner v. Turner, 147 Md. App. 350 (2002), and Solomon v. Solomon, 383 Md. 176 (2004), in arguing the income disparity between the parties ($44,000 vs. $1,563,037.04) alone renders the alimony award unconscionable is misplaced. While those cases establish
that an alimony award must alleviate the unconscionable disparity between the parties, they do not mandate any particular percentage or formula. The Turner court vacated the alimony award because the trial court relied on factually incorrect income figures. Turner, 147 Md. App. at 391–92. Here, by contrast, the trial judge provided an exhaustive explanation of her reasoning, methodically analyzing each statutory factor and explaining each adjustment to the parties’ financial statements. Moreover, the cases are factually distinguishable. This Court aptly noted in Turner: [T]his was a marriage of considerable length, and it was [Husband’s] “conduct that gave rise to the estrangement between the parties.” Moreover, the court recognized that during their thirty-one years of marriage, both parties made “significant contributions” and devoted “substantial time and effort” to “the development of [their jointlyowned company] from a fledgling company” to a significant corporate entity. The court found that [Wife] “was equally involved [with Husband] in the development of the business,” adding that [their company] “would not have been as successful had [Husband] not had the consistent support and assistance of [Wife].” Nevertheless, as the court specifically found, [Husband] alone retains “the controlling ownership interest” in [their company]; only he “remains enmeshed” in [their company], notwithstanding that “[their company] has been as much [Wife’s] career and a focal point for her interests ... as it was for her husband.”
Of particular import, the court expressly found that, as a consequence of the dissolution of the marriage, Wife “lost her career path ...,” and now has an earning capacity of $35,000 a year. Id. at 393 (cleaned up). By contrast, here, the court found the parties’ marriage length at the time of divorce (ten years) to be relatively short and determined both parties—rather than just Husband—were responsible for the marriage’s dissolution. Further, while Wife is correct that the disparity of income between the parties is greater here than in Turner, that is because in Turner, the court focused on the fact that the husband was keeping the business the parties equally contributed to and that the wife was essentially losing her career in the divorce. Here, Wife does not have a job and has not worked since the marriage. At one point Wife allegedly expressed interest in working at Husband’s company, so Husband set up a desk for her, but she never showed up for work.
Also noteworthy is that the vocational rehabilitation expert, Sampeck—who the court credited as reliable—opined that Wife’s earning potential could be between $40,000 and $50,000 per year without any additional training or school, but if she did obtain training, Wife could earn between $103,000 and $210,000 per year. Thus, if you add these figures to her taxfree alimony award of $162,000 per year (about $240,000 in pre-tax income), Wife’s earning potential is anywhere between $206,000 per year to $362,000 per year tax-free.
The court’s analysis was neither arbitrary nor clearly
wrong. The court considered all relevant factors, made credibility determinations within its province as the finder of fact, and arrived at an alimony award that, combined with Wife’s earning potential, would enable her to meet her reasonable needs as determined by the court. We find no abuse of discretion.
II. The Circuit Court Did Not Err in Finding Wife
Voluntarily Impoverished.
A. Parties’ Contentions
Wife contends the circuit court erred in finding her voluntarily impoverished because she argues it was Husband’s expectation she be a stay-at-home mother and household manager during the marriage. Wife argues she was never asked to work during the marriage and the court’s finding of voluntary impoverishment is inconsistent with its own factual finding that “the parties agree that the [Wife] would not have to work during the marriage.”
Husband contends Wife’s argument essentially asserts that because she was not expected to work during the marriage, she should never have to work again. Husband emphasizes Wife has no physical or mental condition preventing her from working, is only 43 years old, holds a college degree, and speaks multiple languages. Husband further notes that despite claiming she could not meet her expenses, Wife has made no effort to find employment or secure retraining in the nearly three years since separation, and that even when she expressed interest in working at his company in the past, Husband set up a desk for her, but she never showed up to work.
B.Analysis
A parent or spouse is “voluntarily impoverished” where they “ha[ve] made the free and conscious choice, not compelled by factors beyond the parent’s control, to render the parent without adequate resources.” Md. Code, FL § 12-201(q). “The intent in question is whether the parent or spouse intentionally became impoverished, for any reason, as opposed to whether the parent or spouse became impoverished with the intent of avoiding support payments.” Long, 141 Md. App. at 351.
In determining whether a party is voluntarily impoverished, this Court looks to the following factors: “(1) his or her 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 retraining if that is needed; (7) whether he or she has ever withheld support; (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 considerations presented by either party.” Goldberger v. Goldberger, 96 Md. App. 313, 327 (1993).
Here, the circuit court conducted a thorough analysis of each of the factors before concluding Wife was voluntarily impoverished. The court made express findings that: 1. Wife has no physical conditions that would prevent
her from working.
2. Wife holds a degree in human resources management from Cardiff University in Wales and speaks both English and Hindi.
3. Wife has not worked in the last 12 years and did not work during the marriage.
4. Wife has not made any efforts to obtain employment since the separation nearly three years ago, despite her testimony that she has been unable to meet her monthly expenses relying solely on the pendente lite child support and alimony.
5. Wife has not made any effort to secure retraining despite indicating at some point she was interested in working in finance or real estate.
6. Wife has never withheld support.
7. After graduating in 2004 from Cardiff University, Wife eventually worked for her father’s company in human resources for about a year and a half to two years, and also held herself out as an executive at S. Oliver Fashion Company.
8. there were several open positions locally that Wife could qualify for without significant additional training, including in retail and human resources, as testified to by the vocational expert, Sampeck. The court further discussed Wife’s testimony during the hearing, stating:
Despite her strong feelings, [Wife] has made no efforts to find employment so that she could financially contribute to keeping the children’s lives . . . the same at both homes. Instead, she appears to believe that [Husband] should bear the entire financial burden for providing not only for the children, but also for [Wife] for the foreseeable future at a level that was only achievable with the assistance of [Husband’s] parents.
The Court will also note that [Wife] has made very little effort to change any of her spending habits since the separation based on her financial statement, which the Court will address in greater detail. She does not plan to change her spending habits after the divorce.
Wife’s argument that she should not be found voluntarily impoverished because she was not expected to work during the marriage conflates expectations during the marriage with obligations after separation. The voluntary impoverishment inquiry focuses on whether a party has made a “free and conscious choice” to be without adequate resources. Goldberger, 96 Md. App. at 327. The fact Wife was not expected to work during the marriage does not excuse her failure to make any effort to find employment in the nearly three years since separation, particularly when the evidence showed she has the education and ability to do so, and she claims she cannot afford her necessary expenses.
The circuit court’s factual findings were not clearly erroneous, and its ultimate determination that Wife is voluntarily impoverished was not an abuse of discretion. We affirm the court’s finding on this issue.
III. The Circuit Court Did Not Err in the Amount of Potential Income Imputed to Wife.
A. Parties’ Contentions
Wife contends even if she were found to be voluntarily impoverished, the amount of income imputed to her—$44,000 per year—is unreasonably high because the circuit court failed to consider her childcare obligations and the custody schedule, which limit her availability to work full-time.
Husband contends the circuit court properly considered all the Goldberger factors in determining the amount of income to impute. Husband argues Wife did not present any evidence or argument for a lesser amount, and her only position at trial was that she should never have to work again. Husband emphasizes the vocational rehabilitation expert, whose testimony was unrefuted, specifically considered that Wife cares for the children more than 50 percent of the time in reaching her conclusions. Husband further notes the children are now 10 years old and attend school from 8:30 a.m. to 3:45 p.m. each day, with after-school programs available, and that the court allocated $1,000 per month to Wife for a domestic assistant/ nanny.
B. Analysis
Having determined the circuit court did not err in finding Wife voluntarily impoverished, we now must address whether the court erred in imputing $44,000 in potential income to Wife. See Malin, 153 Md. App. at 406 (“After the court makes a finding of voluntary impoverishment, the court must then make a determination of ‘potential income’ to impute to the parent who has become voluntarily impoverished, in order to ascertain the appropriate level of child support.”). Goldberger provides a list of factors to consider when imputing income to a party, including: (1) age; (2) mental and physical condition; (3) assets; (4) educational background, special training, and skills; (5) prior earnings; (6) efforts to find and retain employment; (7) the status of the job market in the area; (8) actual income from any source; and (9) any other factors. 96 Md. App. at 328.
The circuit court considered each of the Goldberger factors in determining the amount of income to impute to Wife. The court found:
Based on all of the factors and evidence presented, the Court is going to impute income to [Wife] in the amount of $44,000. This is based on the fact that while she does hold a degree, she has not worked in 12 years, has never worked in the United States. The Court does feel that [Wife] could be making at least $44,000 annually without any additional training. I credit Ms. Sampeck’s opinion that there are positions available [Wife] could qualify for today.
The $44,000 figure falls squarely within the range identified by Sampeck. Sampeck opined that Wife could be employed in approximately four months, earning between $40,000 and $50,000 per year in the area of assistant management for women’s clothing or as a human resource assistant. The court’s decision to impute $44,000—at the lower end of this range— reflects appropriate consideration of the fact that Wife has not worked in 12 years and has never worked in the United States.
We find no error in the court’s imputation of $44,000 in potential income to Wife. Therefore, we affirm.
Wife’s argument that the court failed to consider her childcare obligations is not supported by the record. Sampeck did consider that Wife “cares for the children more than 50 percent of the time.” Moreover, the court awarded Wife $1,200 per month for a “domestic assistant nanny” in her reasonable expenses. The court’s determination that Wife could earn $44,000 per year while also caring for the children was not clearly erroneous.
THE JUDGMENT OF THE CIRCUIT COURT OF MONTGOMERY COUNTY IS AFFIRMED. APPELLANT TO PAY THE COSTS.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 11 MFLU Supp. 5 (2026)
Child support; arrearages; health insurance expenses
The Appellate Court affirmed the Montgomery County Circuit Court’s recalculation of father’s monthly child support and arrearages, after accounting for each parent’s health insurance expenses.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
arrearage amounts?
III. Did the circuit court err or abuse its discretion in denying Father’s post-judgment motions and contempt petition?
For the reasons stated below, we dismiss the appeal with respect to the denial of contempt petition and otherwise affirm the judgment of circuit court.
BACKGROUND
THE DIVORCE AND TYLER I
The parties married in January 2011 and then divorced on June 24, 2019, when Child was approximately seven years old. The court subsequently entered a consent custody order pursuant to which the parties shared physical custody of the Child “on a week-on-week-off basis[,]” and were granted joint legal custody of Child with tie-breaking authority to Mother. Tyler I, 2023 WL 3943836, at *1.
This consolidated appeal is the latest chapter in a dispute over child custody and child support between the appellant, Jermaine C. Tyler (“Father”), and the appellee, Natasha Charisse Hewlett (“Mother”), the biological parents of a child born April 2012 (the “Child”).
After their divorce in 2019, sustained litigation between the parties spawned numerous court orders by the Circuit Court for Montgomery County and two prior appellate opinions by this Court. In August 2022, the circuit court granted Mother’s petition to modify custody, awarding her primary physical custody and sole legal custody, which this Court affirmed in Tyler v. Hewlett, No. 1486, Sept. Term 2022, 2023 WL 3943836 (Md. App. Ct. June 12, 2023) (“Tyler I”). In light of this custody modification, the circuit court then entered a new child support order, but in Tyler v. Hewlett, No. 2233, Sept. Term 2022, 2024 WL 3886222 (Md. App. Ct. August 21, 2024) (“Tyler II”), we vacated that order and remanded the case for a recalculation of Father’s monthly child support and arrearages, instructing the court “to clarify and correct the support calculation to accurately account for each parent’s health insurance expenses.”
In the instant appeal, Father, pro se, challenges a series of orders following our remand in Tyler II. He presents sixteen assignments of error for our review, which we have consolidated, rephrased, and reordered as follows:1
I. Did the circuit court err or abuse its discretion in awarding Mother primary residential custody and tiebreaking authority?
II. Did the circuit court err or abuse its discretion calculating Father’s monthly child support and
On January 11, 2022, Mother filed a petition to modify custody seeking sole physical and legal custody of the Child. Simultaneously, Mother petitioned the court to hold Father in contempt for failure to provide child support. Following an evidentiary hearing on Mother’s petitions—during which both parties testified and moved over 50 exhibits into evidence—the circuit court entered a memorandum opinion and an order on August 3, 2022. The court found that there was a material change in circumstances and determined that it would be in the Child’s best interests to award Mother sole legal and primary physical custody. Father was granted a visitation schedule that included Wednesday afternoons, weekends, and summer as outlined in the order. In support of this modification of Child’s custody, the circuit court explained in its memorandum opinion that Father failed to provide Child with necessary medical treatment and also failed to communicate with Mother:
[T]he ongoing failure to supply this child with necessary medical care [is] a material change in circumstances. [Father] has refused to execute the necessary consent form for the child’s therapist to speak to a mental health professional that the [Father] took the child to without consent from [Mother]. [Father] refuses to sign the form, notwithstanding he continues to insist the child should see a therapist—a different therapist, that the child has experienced trauma at school and has been diagnosed with anxiety as a result, that the child has expressed suicidal ideations due to the trauma alleged, and that these issues are emergent. * * *
[Father] has refused to consistently communicate with [Mother] about the [C]hild and has been nonresponsive to her when she has sought to share or receive information or come to agreement about matters impacting the child’s welfare.
* * *
[Father] gave no meaningful response to [Mother’s] request to spend time with the child on his birthday in April. [Mother] asked early on, and [Father] kept putting her off until week before the child’s birthday, and then he claimed he had plans. The court does not find this claim credible and believes that [Father] deliberately did not respond. [Father] claims he offered to spend the birthday together, which he had to know [Mother] would reject given the history of these parties, including the domestic violence filings against [Mother] by [Father] that were denied at the final stage. It seems to the court to be tactic, to provoke [Mother] and to give false impression of cooperativeness. It is not credible.
See id. at *3-4. The court also found that Father had failed to ensure that Child attended school:
On one occasion, [Father] waited for [Mother] to drop the child off at school, and then immediately picked him up and removed him from school without word to [Mother]. [Mother] did not know how to reach the child and she contacted the school, police and child welfare trying to find out what happened to the parties’ son. There was no reasonable cause for the child to be out of school, and certainly no cause to take the child surreptitiously as [Father] did. After taking the child out of school, [Father] wrote the school asking if the child was absent and what the cause was-which suggests he is very troubled, very manipulative, or both.
Id. at *4. Finally, the court held Father in contempt for his willful refusal to pay child support and setting a purge amount of $713.00 to account for his accrued arrears. Id. The court also entered judgments against Father for his failure to pay $4,209.22 in extraordinary medical expenses and $177.50 for extracurricular activities. Id.
On appeal, this Court affirmed the modification of custody, concluding that sufficient evidence supported the circuit court’s findings regarding Father’s failure to provide the Child with necessary medical treatment, his refusal to communicate with Mother, and his inability to ensure the Child’s consistent school attendance. Id. at *3-5. However, we vacated the $4,209.22 judgment against Father for extraordinary medical expenses, as the award improperly included $481.22 in predivorce dental costs that were barred by the doctrine of res judicata, and remanded the case for the entry of a correct judgment in the amount of $3,728. Id. at *8-9.
Tyler II
While Father’s appeal in Tyler I was pending, the circuit court conducted a child support hearing on October 7, 2022,
in light of the new custody schedule. See Tyler II, 2024 WL 3886222, at *2. The evidence showed Mother’s monthly income was $13,799, and Father’s monthly income was $10,089, although Father testified that he had been placed on leave without pay. Mother also presented a financial statement dated October 4, 2022, which specifically listed her own health insurance costs at $297.58 and the Child’s portion at $127.28, for a total monthly expense of $424.86. Id. at *3. When the court asked how she calculated the health insurance costs attributable to the Child, Mother stated that she estimated “30 percent of her $504 monthly health insurance premium” as attributable to coverage for the Child, based on the cost of adding him to her individual plan. Id. at *4. Father also presented a financial statement at the hearing, listing the amount of health insurance expense attributable to his two children as $212, which is half of his total monthly health insurance expense of $424. Id. at *3.
On November 21, 2022, the court entered a modified child support order, setting Father’s child support obligation at $554 per month, establishing child support arrears of $1,608.39 through August 3, 2022, and requiring Father to pay $481.22 for dental services rendered to the Child in March and May of 2019—the same expense that we said in Tyler I was barred by the doctrine of res judicata. Id. at *2. The court attached a child support guidelines worksheet to its order.
In the Father’s subsequent appeal from that order, we affirmed the decision to modify support but vacated the judgment. In addition to the erroneous inclusion of the predivorce dental expenses, we noted that the record lacked any evidence to support the court’s finding of $242 for Mother’s health insurance costs. We explained: Under FL § 12-204(h)(1), “[a]ny actual cost of providing health insurance coverage for a child for whom the parents are jointly and severally responsible shall be added to the basic child support obligation and shall be divided by the parents in proportion to their adjusted actual incomes.” Here, the court stated in its bench ruling that Mother’s monthly health care expense for the Child was $242, then used that figure to calculate Father’s child support obligation in its Child Support Worksheet. The court did not include any health insurance expense for Father in its calculation.
Father disputes this “determination of the cost and allocation of health insurance[,]” arguing that the court used figures that are “not based upon any amount discernable in the record.” In support, Father points out that the $242 “shown on the Court’s October 7 Guidelines worksheet attributed” to Mother does not match “the amount of the child’s share of health insurance on [Mother’s] financial statement page 3[,]” which is $212.
We cannot discern from the record before us how the court reached the $242 figure that it used to calculate Mother’s health insurance expense factored into its modified award of child support.
That number does not correspond to either Mother’s financial statement, which listed her health insurance expense for the Child as $127.28, or to her testimony at the October 7 hearing, when she estimated her health insurance expense to be 30% of the $504 monthly health insurance premium shown on her pay records, which would amount to $151.20.
Given that Mother did not present any evidence of health insurance expenses other than her financial statement and testimony, the record does not support the circuit court’s determination that her monthly expense is $242. Tyler II, 2024 WL 3886222, at *6 (emphasis added). We also observed that the court failed to explain why the new child support calculation excluded Father’s claimed health care expense of $212. Id. Accordingly, on August 21, 2024, we vacated the child support order and remanded the case “for further proceedings to clarify and correct the support calculation to accurately account for each parent’s health insurance expenses.” Id. (emphasis added).
Facts Relevant to the Instant Appeal Parties were Awarded Joint Legal Custody
While the appeal in Tyler II was pending Father petitioned once again for modification of child custody and support. In January 2024, following another multi-day hearing, the court denied both petitions. As for child support, the court found that Mother’s income did not significantly change, and therefore there was no “material change in the financial circumstances of the parties at th[e] time” Regarding custody, the court recognized that there were “some changes” following the August 3, 2022 custody order, but concluded that “[w]hat is complained of here is just the latest in a series of events between the parties, which affects the parents and not the child.” Instead of modifying custody, the court clarified that Father is “entitled to access to all medical, dental, healthcare, and educational records concerning the [C]hild from the various providers or educational institutions” and that Mother is responsible for putting “all appointments, [ ] activities, and school events” on the OurFamilyWizard app.
Father did not appeal these rulings. Instead, less than a month later, he filed another petition for custody modification, followed by a series of emergency, ex parte motions and contempt petitions. In October 2024, a family magistrate recommended denying Father’s pending motions and petitions, but the magistrate found that “a material change in circumstances ha[d] occurred since the [January 2024 ruling] . . . in that the communication between the parties ha[d] continued to deteriorate” and recommended modifying the January 2024 custody order in terms of their communication. After Father noted exceptions to the magistrate’s findings and recommendations, the circuit court sustained the exceptions in part and denied them in part, entering an order on February 7, 2025, which awarded the parties joint legal custody, with Mother having tiebreaking authority.3
On March 3, 2025, Father filed yet another petition to modify custody and visitation. In the petition, Father alleged: (1) that
the Child was “suspended from school due to vandalism” in February; (2) that Mother failed to provide the Child with prescribed medication; (3) that the Child was not receiving necessary therapy; and (4) that Mother “committed [f] raudulent activities” by “knowingly and intentionally lying about her income” and “providing false and counterfeit/ tampered federal paystubs and banking records” during prior proceedings. Later that month, on March 31, 2025, Father filed a petition for contempt, alleging that Mother failed to answer his discovery requests and provide contact information for an individual whom he identified as the Child’s “alleged daycare provider and/or tutor[.]” Mother also filed a contempt petition, alleging, among other things, that Father had failed to timely drop off the Child for custodial exchanges.
Mother Expressed Her Intent to Relocate
In December 2024—while Father’s exceptions to the magistrate’s findings and recommendations were pending— Mother moved for modification of Father’s access schedule, citing her plan “to relocate to Houston, TX around the end of June 2025[.]” The court subsequently set a relocation hearing for late June. In early June, however, she filed an “amendment to plaintiff’s motion to modify custody,” stating that her husband, Raymond Mann, had “received formal verbal notification from his agency leadership” that he had been reassigned to Dallas, Texas. On June 18, the court, at Father’s request, issued a subpoena against Mann for “[a]ll records including written communication and documentation from [his] employer regarding his transfer and relocation to Houston, Texas[,] and Dallas, Texas from November 2024 to June 2025.” Days later, Mother refiled her amendment, along with a redacted copy of a letter from the Department of Homeland Security (“DHS”), which states, in relevant part: “[t]he purpose of this memorandum is to provide notice that Mr. Raymond Mann is transferring to the Dallas, Texas Area of Responsibility” and that “[h]is physical work location will be . . . Irving, TX 75063[.]”
The Relocation Hearing
The parties, both pro se, appeared for the relocation hearing before the circuit court on June 30 and July 1, 2025. The court considered the parties’ cross motions to modify custody as well as their respective petitions for contempt. At the onset of the hearing on June 30, Father asked for a postponement, stating that it would allow him to subpoena DHS “to verify . . . the necessity for this move[,]” but the court declined and proceeded with the hearing. During the hearing, Mother introduced several OurFamilyWizard messages, alleging Father’s failure to share critical information about the Child and to cooperate under the joint legal custody arrangement. Mother testified that although she had enrolled the Child in her medical insurance plan and provided Father with the relevant information, Father refused to reciprocate by providing details concerning the Child’s healthcare and therapy. For example, according to Mother, Father claimed that the Child was no longer diagnosed with ADHD but did not produce the alleged new evaluation to her or the school. Mother also testified about Father’s communication
issues with the Child’s care providers, citing a virtual school meeting that was terminated after Father disclosed that he had recorded the session without the participants’ consent.
Regarding the Child’s mental health care, Mother acknowledged that the Child had not been enrolled in therapy since February 2025, but she explained that finding a suitable provider had been difficult and that, in light of her imminent relocation to Texas, she believed the Child would be unable to maintain the necessary consistency with a local Maryland provider. Mother also testified that she had identified several therapists in Dallas-Fort Worth area and had sent Father an OurFamilyWizard message regarding her search, though she acknowledged that she did not provide him with a specific list of those providers. Additionally, while Mother admitted that the Child had recently experienced the tragic death of a close friend, she maintained that he had not exhibited behaviors warranting crisis intervention. Mother further testified that she has a bigger “support system” in Dallas area, as her longtime friend and cousins live there, and the Child had been excited about “being able to play football in Dallas[.]”
On cross-examination, Father presented Mother’s Leave and Earnings Statements (“LES”) and bank records, highlighting their contradictions with her prior representations to the court. Specifically, although Mother had previously reported an annual salary of $147,753 in 2023, records from her employer reflected a salary of $167,053 for the same pay period. Father also pointed to a federal salary deposit of $3,653.41 in Mother’s certified banking statement, which matched her LES but was significantly higher than the amount of $2,930 shown on the paystubs Mother had previously submitted to the court. When asked to explain why her own bank statements and LES did not match her court exhibits, Mother replied, “I don’t know.” Nonetheless, Mother noted that her complex financial situation, which includes failed side businesses, might have contributed to the discrepancies. She also denied having used “Adobe Professional software” to edit documents or exhibits, stating that she only used a “free version[,]” which lacked such editing capacity.
During his own testimony, Father continued to emphasize that Mother had misrepresented her income by roughly $19,000 in her financial disclosures and documents, claiming that this alleged misrepresentation had negatively impacted his ability to provide for the Child’s needs. Father also asserted that the existing custody arrangement was no longer tenable due to Mother’s refusal to share basic information, which, according to Father, had prevented him from learning about the Child’s grades or behaviors at school. For example, following Child’s disciplinary incident at school in February, Father requested information regarding the Child’s “alleged daycare provider and/or tutor,” but Mother did not respond.
Father did not present any paystubs at the hearing and denied knowing his specific income. Instead, he testified that he works as a federal government employee at the GS12 level and makes “over six figures,” after being terminated from his prior GS-14 position. He stated that the Merit Systems Protection Board ruled his termination as unlawful, resulting in a settlement that cleared his record and enabled him to secure his current federal position. Father admitted to having
not paid the money judgment previously entered against him, but denied that he had failed to pay child support, asserting that his child support obligations had been garnished from his wages. Additionally, while Father acknowledged taking the Child to multiple cities across the country, he maintained that he had notified Mother via OurFamilyWizard. Father also denied any intention of moving with the Child to Florida, noting that his current employment would not permit such relocation.
Father testified that he resides in Burtonsville and plans to move to Rockville with his romantic partner, identified as Jessica Roman. Father stated that he and Roman have two children, ages two and four, both of whom have developed close relationships with the Child. Father also explained his own “active role[s]” in the Child’s life, testifying that he carried the Child’s health insurance, attended school meetings, and provided for the Child’s food and clothing. He maintained that it is in the Child’s best interests to stay near his family members in Maryland and to preserve these bonds. Father further argued that staying within the Montgomery County Public School system would allow the Child to remain “around his friends [and] his social network.” On the other hand, according to Father, Mother’s move to Texas would “severely disrupt” his bond with the Child and the relationships the Child has established in Maryland.
Raymond Mann, Mother’s husband, verified his job transfer letter from DHS and confirmed the start date of August 1, 2025. He expressed that his assignment to Texas would give his family a “better opportunity[,]” including a temporary promotion to the GS-13 level. When Father asked if he volunteered for the transfer, Mann clarified that the position “came open” and he accepted the offer as a career advancement opportunity. After Mann’s testimony, Father renewed his request for “postponement . . . to have the documents” subpoenaed from DHS to verify “what he testified to regarding the move[,]” but the court again denied the request.
The July 9 Oral Ruling, July 16 Order, and First Notice of Appeal
On July 9, 2025, the circuit court announced its ruling on the record. After determining that it was in the Child’s best interests to relocate with Mother, the court denied Father’s request for sole legal and primary physical custody. The court maintained the parties’ joint legal custody status, with Mother having primary physical custody and tie-breaking authority. In light of the relocation, the court modified Father’s access schedule and his child support obligations going forward. The court also denied both parties’ contempt petitions, finding that the allegations raised therein were rendered moot or were unlikely to occur in the future due to Mother’s relocation.
Child Custody
The court began its oral ruling by conducting a custody assessment, examining relevant “best interests” factors articulated in Montgomery County Dep’t of Social Services v. Sanders, 38 Md. App. 406 (1977), and Taylor v. Taylor, 306 Md. 290 (1986). In relevant part, the court
found that the Child was physically healthy overall but had experienced mental health issues that required therapy. The court accepted Mother’s explanation for the Child’s lapse in therapy, namely that she did not wish to start him with a new provider in Maryland only to have him change therapists again shortly after relocating to Texas. The court also observed that the Child was recently disciplined at school and experienced the death of a close friend, but concluded that despite these challenges, the Child remained “doing generally well and adjusting generally well.”
As for the fitness and character of the parties, the court noted that “not much has changed” since the parties’ divorce, noting that both parties maintained “very strong and good relationship[s]” with the Child. Regarding household dynamics, the court observed that the Child had developed positive relationships with the parties’ respective partners and with Father’s other children—whom the court referred to as “step-siblings.” The court also found it “encouraging” that both parties acknowledged the Child’s need for involvement from both parents and worked to facilitate meaningful access, despite their own interactions being acrimonious and limited. Similarly, the court recognized that both parties were sincere in their custody requests and “generally have the ability to discuss” the Child’s needs, even when they do not reach agreement.
Turning to relocation, the court identified geographic proximity as the factor “driving the case,” concluding that the distance between Maryland and Texas rendered joint physical custody “not a viable option.” The court found both parties “financially stable” and expressed no concerns regarding the current living conditions in either parent’s home. In response to Father’s concerns about Mother’s lack of housing in Texas, the court credited her testimony regarding her ongoing efforts to find a suitable home, based upon her financial stability and history of care. Furthermore, while acknowledging that relocation to Texas would disrupt the Child’s social and school life, the court noted that “some level of disruption” would be inevitable regardless of the outcome. Rather, the court explained, the decreased frequency of Father’s access could be mitigated by a “robust access schedule” during summers and holidays, which would provide a “more continuous time period . . . to allow for more in-depth interaction with [the Child].”
In addition to these factors, the court found that, after a detailed review of the exhibits, there was “at least probable cause to believe that [Mother] may have engaged in obstruction of justice” by introducing fabricated evidence. The court expressed its intent to “take appropriate action in providing notice to the State’s Attorney’s Office” regarding the matter. The court further stated that Mother’s conduct affected her credibility, particularly in financial matters, but clarified that her conduct did not “obstruct [the court’s] duty to address the best interest of the [C]hild[.]”
Based on its findings, the circuit court concluded that the relocation to Texas constituted a material change in circumstances and that the Child’s best interests would be served by remaining in the primary physical custody of Mother and joint legal custody of both parties. With respect to legal custody, the court explained, “I’m not modifying the
arrangement from the February 6th, 2025, order. It is the [c] ourt’s belief that, with the distance, it is more important than ever for [Father] to be involved in the important decisions involving [the Child].” Lastly, the court announced Father’s access schedule, taking judicial notice of the 2024-25 and 2025-26 school calendars in Dallas-Fort Worth area.
Child Support
Next, the court calculated Father’s child support obligation going forward in light of his modified access schedule. Applying the Maryland Child Support Guidelines, the court concluded that Father owed Mother $234 per month in child support beginning July 2025. First, based on Mother’s paystubs and financial documents presented at the hearing, the court found that she earned $14,757.25 a month in wages and $2,698.65 a month in VA disability benefits. The court then found Father’s income remained at $10,089 per month, noting that he presented no evidence of change in earnings since the October 2020 child support order. Finally, the court attributed $0 to both parties for the Child’s health insurance costs, observing that there was “no evidence . . . as to the amount of health insurance attributable to the [C]hild[.]” The court further explained that although Mother’s paystubs reflected some health insurance withholdings, there was “no breakdown for the [c]ourt to come to any reasonable conclusion” regarding the specific portion covering the Child. Father filed an appeal on the same day of the hearing on July 9, and about a week later, the circuit court entered a written order on July 16, 2025, reflecting its oral ruling.7 Pursuant to the order, Father’s custody and visitation schedule included, among other things, that “Child shall reside with [Father] in Maryland during the summer months which is defined as the Sunday after the last day of school to the Friday before the first week of school[.]” A child support guidelines worksheet was later filed separately.
The July 29 Order, Post-Judgment Motions, and Second Notice of Appeal
On July 29, 2025, following this Court’s denial of Father’s motion to reopen his appeal, the circuit court entered a memorandum opinion and an order, addressing our remand instructions from Tyler II and determining that Father’s child support obligation for the period of August 2022 through July 2025 was $281.00 per month, resulting in an arrearage in the amount of $10,116.00. Thus, the court significantly reduced Father’s child support obligation from the $554 per month that was contained in the court’s November 2022 child support order. The court ordered each party to “provide . . . an accounting of any child support payments made by [Father] for the period of August 2022 through July 2025” and provided that “upon receipt of each parties’ accounting, the [c]ourt will enter an arrearage award[.]”
A child support guidelines worksheet was filed the same day, showing that the court—as with calculation of the prospective child support—attributed $0 to each parent for the Child’s health insurance costs. In the memorandum opinion, the court explained:
The Maryland Appellate Court remanded the case “for further proceeding to clarify and correct the
[child] support to accurately account for each parent’s health insurance expenses.” August 21, 2024, Opinion at p.12. In particular, the Court’s child support calculation provided monthly health insurance expense incurred by [Mother] in the amount of $242. The Maryland Appellate Court, however, noted that this number did not correspond to either the amount set forth in [Mother’s] financial statement or her estimate of 30% of the monthly $504 health insurance premium shown on her pay records which would have amounted to $151.20. [Father] provided his financial statement at the October 7, 2022, hearing, which asserted that he paid $212 in health insurance attributable to his two children. The trial court’s decision did not address [Father’s] health insurance payments. Because this member of the bench did not preside over the previous hearing in which child support was decided, the parties were permitted to introduce additional evidence regarding income including health insurance expenses. No additional evidence regarding either parties’ health insurance was provided. *
Here, neither party provided evidence from which the Court can discern the amount either party paid solely of the minor child’s share of health insurance. The Court does not credit either parties’ assertions contained in their financial statements or [Mother’s] estimation. [Father’s] claim of $212 for health insurance was for two children (one of whom is not subject to this proceeding and for which no allocation between the two children was made). Moreover, [Father] simply allocated 50% of his total insurance cost of $424 for the two children. There is no evidence to support this allocation. (Emphasis added).
Following the court’s rulings, Father filed numerous postjudgment motions, most of which were summarily denied by the court. 8 The court also denied Father’s then-pending motion to revise the January 2024 child support order, reasoning that “[Mother’s] fraudulent financial documents . . . at best, demonstrate[d] intrinsic fraud, which does not support the [c]ourt exercising revisory power.” On August 21, 2025, Father filed the second notice of appeal, which was then consolidated with his earlier appeal from July 9, 2025.
DISCUSSION I
Assignments of Error Relating to The Modification of Custody Legal Framework
In any child custody determination, it is the primary goal of the trial court “to serve the best interests of the child.” Caldwell v. Sutton, 256 Md. App. 230, 265 (2022) (quoting Conover v. Conover, 450 Md. 51, 60 (2016)). Where, as here, a party moves to modify an existing custody order, the party must “show that there has been a material change in circumstances since the entry of the [previous] custody order
and that it is now in the best interest of the child for custody to be changed.” Gillespie v. Gillespie, 206 Md. App. 146, 171-72 (2012) (quoting Sigurdsson v. Nodeen, 180 Md. App. 326, 344 (2008)). “A material change of circumstances is a change of circumstances that affects the welfare of the child.” Kadish v. Kadish, 254 Md. App. 467, 503 (2022) (quoting Gillespie, 206 Md. App. at 171). Once a trial court finds a material change in circumstances, the court then proceeds to decide “what custody arrangement is in the best interests of the child[.]” Santo v. Santo, 448 Md. 620, 639 (2016). In determining the child’s best interests, the trial court must consider the factors delineated in Montgomery County Dep’t of Social Services v. Sanders, 38 Md. App. 406 (1977), and Taylor v. Taylor, 306 Md. 290 (1986). “In crafting a custody arrangement that will advance the best interest of a child, courts are instructed to determine ‘what appears to be in the welfare of the child[ ] at the time of the [custody] hearing.’” Augustine v. Wolf, 264 Md. App. 1, 16 (2024) (quoting Raible v. Raible, 242 Md. 586, 594 (1966)).
Appellate courts in Maryland, including this Court, are tasked with “a limited review of a [circuit] court’s decision concerning a custody award.” Wagner v. Wagner, 109 Md. App. 1, 39 (1996). In doing so, we apply three interrelated standards of review. In re Yve S., 373 Md. 551, 586 (2003). First, we review factual findings to determine whether they are clearly erroneous. In re R.S., 470 Md. 380, 397 (2020). Findings of fact are not clearly erroneous “[i]f there is any competent material evidence” to support them. Fantasy Valley Resort, Inc. v. Gaylord Fuel Corp., 92 Md. App. 267, 275 (1992). Second, we review whether the court erred as a matter of law, and this review we undertake without deference to the trial court. Id. Finally, we will not disturb the court’s ultimate custody determination, “when based upon sound legal principles and factual findings that are not clearly erroneous,” unless there has been a clear abuse of discretion. Id. As this Court explained more recently, in child custody cases, the abuse of discretion standard requires “articulating the logical nexus between the court’s factual findings regarding the best interests of the minor child and its custody order.” Bajaj v. Bajaj, 262 Md. App. 435, 450 (2024); see also North v. North, 102 Md. App. 1, 14-15 (1994).
Analysis
Father does not dispute that a material change in circumstances occurred; rather, he challenges the best interests determination, claiming that the court made “[g] eneric, unanchored findings” and failed to make specific findings regarding the Child’s therapy lapses, school discipline, and Mother’s alleged fraud. We disagree. At the July 9 oral ruling, the court discussed the requisite Taylor-Sanders factors and made relevant factual findings under each. Specifically, the court noted that the Child was not currently in therapy and had been disciplined at school. The court also discussed Mother’s apparent falsification of financial documents, emphasizing that her actions “weigh[ed] heavily on the [c]ourt’s decisions.” Despite these concerns, the court found that both parents maintained “very strong” relationships with the Child, demonstrated sincerity in their custody requests, and possessed the ability
to communicate regarding the Child’s needs. Recognizing that Mother’s relocation would inevitably cause “some level of disruption[,]” the court found that it was in the Child’s best interests to continue the primary physical and joint legal custody arrangement that had been in place since February 2025. The court balanced this by granting Father a “robust access schedule” designed to preserve and foster his bond with the Child. Since the record establishes that the circuit court sufficiently articulated the “logical nexus” between its findings and the ultimate custody determination, we cannot say that the court abused its discretion. Bajaj, 262 Md. App. at 450.
To persuade us otherwise, Father makes several arguments, none of which we find persuasive. Father contends that the circuit court abused its discretion by maintaining Mother’s tie-breaking authority despite findings of her financial misrepresentations. However, when determining the best interests of a child, the circuit court should “avoid focusing on or weighing any single factor to the exclusion of all others.” Best v. Best, 93 Md. App. 644, 656 (1992). Rather, as the Supreme Court of Maryland emphasized in Taylor, the best interests analysis “requires thorough consideration of multiple and varied circumstances, full knowledge of the available options, including the positive and negative aspects of various custodial arrangements, and a careful recitation of the facts and conclusions that support the solution ultimately selected.” 306 Md. at 312. Simply put, no single factual finding “has talismanic qualities[,]” id. at 303, and the circuit court was well within its discretion in concluding that Mother’s lack of candor, though significant, did not necessarily outweigh other factors supporting the award of tie-breaking authority to her. See McCarty v. McCarty, 147 Md. App. 268, 273 (2002) (noting that appellate courts “rarely, if ever, actually find a reversible abuse of discretion” in custody determinations).
We are similarly unpersuaded by his claim that the circuit court abused its discretion by not “reducing or suspending” Mother’s tie-breaking authority for her failure to keep the Child in therapy. As we understand it, Father argues that because the August 2022 custody order “penalized” him by “remov[ing] [his] legal custody for therapy coordination issues[,]” a similar outcome is warranted here. However, as the Supreme Court of Maryland observed, “[t]he only absolute in the law governing custody of children is that there are no absolutes.” Domingues v. Johnson, 323 Md. 486, 500 (1991) (quoting Friederwitzer v. Friederwitzer, 432 N.E.2d 765, 767 (N.Y. 1982)). Moreover, as we discussed, the court’s primary goal in a custody determination “is to serve the best interests of the child[,]” not to punish or sanction a parent. Caldwell v. Sutton, 256 Md. App. 230, 265 (2022). Indeed, “[w]hen the custody of children is the question, ‘the best interest[s] of the children is the paramount fact. Rights of father and mother sink into insignificance before that.’” A.A. v. Ab.D., 246 Md. App. 418, 441 (2020) (quoting Kartman v. Kartman, 163 Md. 19, 22 (1932)). 10
Nor do we find it convincing that the circuit court improperly “rel[ied] on past findings without tying them to current evidence.” Father claims that the court’s July 9 oral ruling “repeatedly referenced” findings from the August 2022 order regarding her housing and stability. However,
in assessing a child’s best interests, the circuit court must consider “all the relevant facts and circumstances”—which may include parents’ history and past conduct—to determine whether a material change of circumstances has occurred and what arrangement serves the child’s future best interests. Schaefer v. Cusack, 124 Md. App. 288, 307 (1998) (quoting Tropea v. Tropea, 665 N.E.2d 145, 150 (N.Y. 1996)); see also Azizova v. Suleymanov, 243 Md. App. 340, 357 (2019) (noting that a parent’s past conduct may be relevant where “it is predictive of future behavior and its effect on the child”). Here, merely referencing Mother’s history as an indication of her stability was not a reliance on the past findings to the exclusion of the present evidence; rather, it was a reasonable exercise of the trial court’s discretion to assess the viability of her relocation plan.
The record also establishes that the court was not clearly erroneous in taking judicial notice of the Dallas-Fort Worth area school calendar during the July 9 oral ruling. See Matter of AutoFlex Fleet, Inc., 261 Md. App. 627, 667 (2024) (“We review a circuit court’s ruling on a request to take judicial notice under the clearly erroneous standard”). Notably, Father has made no efforts to challenge the accuracy of the school calendar or to explain how the judicial notice prejudiced him. See Flores v. Bell, 398 Md. 27, 33 (2007) (“The burden is on the complaining party to show prejudice as well as error.”). In addition, even though Father claims that the court failed to give him a “chance to be heard on the propriety and tenor of judicially noticed facts[,]” he did not make any objection or request a hearing when the circuit court expressly took the judicial notice. See Md. Rule 5-201(e) (“Upon timely request, a party is entitled to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed.”) (Emphasis added). 11
We further conclude that the court was not unreasonable in denying Father’s postponement request in the middle of the relocation hearing. Maryland Rule 2-508 provides, in relevant part, that “[o]n motion of any party or on its own initiative, the court may continue or postpone a trial or other proceeding as justice may require.” Md. Rule 2-508(a). Generally, “it would be an abuse of discretion for a trial judge to deny a continuance when the continuance was mandated by law, or when counsel was taken by surprise by an unforeseen event at trial, when he had acted diligently to prepare for trial, or, in the face of an unforeseen event, counsel had acted with diligence to mitigate the effects of the surprise[.]” Touzeau v. Deffinbaugh, 394 Md. 654, 669-70 (2006) (internal citation omitted). In the instant appeal, however, there was no statute or rule that obligated the court to grant Father’s request for a postponement; nor was there any exceptional, unforeseen circumstance that necessitated a postponement. Father had known about Mother’s relocation to Texas at least since December 2024, and Mother filed the DHS letter indicating Mann’s assignment to Dallas-Fort Worth area a full week before the relocation hearing, but Father did not request a subpoena for DHS until the relocation hearing.
We find no merit in Father’s remaining contentions. Father claims that the circuit court erred by relying on In the Matter of Marriage of Houser, 490 Md. 592 (2025), in determining the Child’s custody, “even though Houser concerns child-
support rights, not relocation.” But the record shows that the circuit court did rely on Houser for its child support determination. 12
We are also not persuaded that the court abused its discretion by “mislabeling” the Child’s half-brothers as “step-siblings[,]” as nothing in the record suggests that this semantic error caused the court to underestimate the significance of their relationships or otherwise skew the best interests analysis. In sum, we do not find any reversible error of law, nor do we discern any abuse of discretion or clearly erroneous factual findings. Accordingly, we affirm the circuit court’s custody determination.
II
Assignments of Error Relating to Child Support and Arrearages Legal Framework
The Supreme Court of Maryland recently instructed that Parents of a minor child “are jointly and severally responsible for the child’s support, care, nurture, welfare, and education[.]” FL § 5-203(b)(1). This legal obligation to support a minor child is also a “moral obligation[,]” which “is [a] well-settled [principle] in Maryland [law].” Petrini v. Petrini, 336 Md. 453, 459, 648 [ ] (1994). Because the obligation is to support the child, Maryland courts have long recognized that the right to child support is a right held by the minor child—not a right held by the parent to whom the child support is paid.
In the Matter of Marriage of Houser, 490 Md. 592, 607 (2025). Section 12-104 of the Family Law Article (“FL”) of the Maryland Code (1984, 2019 Repl.) governs court-ordered child support and states as follows:
(a) The court may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance.
(b) The court may not retroactively modify a child support award prior to the date of the filing of the motion for modification.
(c) If a party becomes incarcerated, the court may determine that a material change of circumstance warranting a modification of child support has occurred, provided that the party’s ability to pay child support is sufficiently reduced due to incarceration.
FL § 12-104; see also Pellet v. Pellet, 267 Md. App. 539, 552 (2025).
As a general matter, child support orders fall within the trial court’s sound discretion. Shenk v. Shenk, 159 Md. App. 548, 554 (2004). In particular, “[w]here a trial court uses the guidelines to award child support, that determination will not be disturbed but for a clear abuse of discretion.” Houser, 490 Md. at 605; see also FL § 12-202(a)(2)(i) (“There is a rebuttable presumption that the amount of child support which would result from the application of the child support guidelines set forth in this subtitle is the correct amount of child support to
be awarded.”). Similarly, “the question of whether to modify an award of child support is ‘left to the sound discretion of the trial court, so long as the discretion was not arbitrarily used or based on incorrect legal principles.’” Tucker v. Tucker, 156 Md. App. 484, 492 (2004) (quoting Smith v. Freeman, 149 Md. App. 1, 21 (2002)). In other words, “[a]s long as the trial court’s findings of fact are not clearly erroneous and the ultimate decision is not arbitrary, we will affirm [the child support order], even if we may have reached a different result.” Kaplan v. Kaplan, 248 Md. App. 358, 385 (2020). That said, “where the [child support] order involves an interpretation and application of Maryland statutory and case law, [this] Court must determine whether the [trial] court’s conclusions are ‘legally correct’ under a de novo standard of review.” Id. (quoting Walter v. Gunter, 369 Md. 386, 392 (2002)) (alterations in the original).
Analysis
On appeal, Father assigns three errors to the circuit court’s modification of his monthly child support obligation under the July 16 order and arrearages under the July 29 order. First, Father claims the court erred by initially failing to attach a Child Support Guidelines Worksheet to the July 16 order. Second, Father complains that under both orders, the court “err[ed] by setting [his] health-insurance credit to $0 despite record evidence of Self-and-One coverage.” Third, Father argues that the court failed to comply with our mandate from Tyler II by “revis[ing] monthly and arrears amounts without making record supported findings on insurance and verified income[.]” We disagree.
First, we find no Maryland authority requiring the circuit court to provide a child support guidelines worksheet with a child support order. 13 Moreover, in Maryland, we generally presume that a “trial judge knows and follows the law”; mere failure to “catalog each factor and all the evidence which related to each factor” typically does not, by itself, overcome that presumption or demand reversal. Davidson v. Seneca Crossing Section II Homeowner’s Ass’n, 187 Md. App. 601, 628 n.4 (2009). Father cites FL 12-202 in support of his contention, but that provision only requires courts to “use the child support guidelines” in establishing or modifying a child support award, and, during the July 9 oral ruling, the court expressly referenced the guidelines in calculating the award. Thus, we do not find error or abuse of discretion. 14
Next, we hold that the circuit court’s decision to attribute $0 to both parents for the Child’s health insurance coverage was neither clearly erroneous nor arbitrary. See Kaplan, 248 Md. App. at 385. In his informal appellate brief, Father argues: [c]ontrary to the court’s later memorandum stating there was “no record” of child-inclusive coverage, the December 1, 2023 trial transcript shows the existence and details of Self + One coverage. Appellee identified and the court admitted her healthcare election [Plaintiff’s Exhibit 30], which expressly shows Blue Cross Blue Shield tiers including “self plus one” and family, and the bi-weekly and monthly cost differences.
(Emphasis added). At the December 1, 2023 hearing, upon
which Father relies, Mother told the court: I want to go ahead and move into the insurance piece of it. Now, Your Honor, we’re in open season right now, so I had to make a new selection. And so I’m going to submit not only what I provided originally to [Father] show that I have been covering the [Child] for the last years, in addition to that, I have to make a new selection. I’m also adding my husband. And I made sure I printed out the difference in cost for the insurance between the self and self plus one or self and family. Plaintiff’s Exhibit 30, which was introduced by Mother and subsequently admitted into evidence at the hearing, includes a redacted health benefits election form and a “2024 Standard Option Rates” from Blue Cross Blue Shield. These rates show a monthly rate for the individual (self-only) plan of $326.71, self-plus-one plan of $729.82, and a family plan of $803.14.
As we understand it, Father’s argument is that the circuit court abused its discretion by not taking into account Mother’s testimony and Mother’s exhibit regarding her insurance plan for the Child. Even assuming arguendo that the court should have credited Mother’s testimony and estimated her insurance costs for the Child based on the difference between “self-plus-one” and “family” coverages, it is unclear how this (alleged) error could prejudice Father, who, as the circuit court noted, did not provide any information about his own insurance plan. Flores v. Bell, 398 Md. 27, 33 (2007) (“The burden is on the complaining party to show prejudice as well as error.”).
At any rate, nothing in the record establishes Father’s “actual cost of providing health insurance coverage for a child for whom the parents are jointly and severally responsible[,]” as required FL § 12-204(h) (emphasis added). Typically, “this cost has been defined as ‘the cost of adding the child(ren) to existing coverage or the difference between self-only and family coverage.’” Cynthia Callahan & Thomas C. Ries, Fader’s Maryland Family Law § 6-15 (7th ed. 2021) (emphasis added). In the instant appeal, there is “competent[,] material evidence” to find that Father’s claim of $212 for health insurance was a bulk figure for two children, one of whom is not subject to this proceeding. 15 Fantasy Valley Resort, Inc. v. Gaylord Fuel Corp., 92 Md. App. 267, 275 (1992) (explaining that a court’s findings are not clearly erroneous if supported by “competent material evidence”). On the other hand, the record contains no evidence suggesting a method of identifying the cost of adding this Child to a self-only plan, and Father did not provide a breakdown to distinguish the costs between his children. In the absence of such evidence, we cannot require the circuit court to speculate about the specific portion of the insurance premium attributable to the Child. See Brown v. Brown, 119 Md. App. 289, 295 (1998) (explaining that evidence of a parent’s additional income “must not be speculative or uncertain” when assessing child support obligations).
Finally, the record plainly belies Father’s claim that the court “revised monthly and arrears amounts without making record supported findings on insurance and verified income[.]” In Tyler II, we instructed the circuit court to “clarify and correct the support calculation to accurately
account for each parent’s health insurance expenses” upon remand. 2024 WL 3886222, at *6 (emphasis added). That is precisely what the circuit court did here— under both the July 16 and July 29 orders—by noting lack of evidence from the parties regarding the amount of health insurance attributable to the Child and attributing $0 to each parent’s health insurance expenses for the Child. The record further establishes that the circuit court’s calculation of Father’s prospective child support in the July 16 order was similarly grounded in the specific factual findings that (1) Mother earned $14,757.25 a month in wages and $2,698.65 a month in VA disability benefits, based on her financial documents presented at the relocation hearing; and (2) Father earned monthly income of $10,089, absent any evidence of change in earnings since the October 2020 order. Notably, Father does not challenge these findings as clearly erroneous. Because the court’s calculations were based factual findings supported by the record, we find no abuse of discretion.
III
Claims Relating to Contempt and Post-Judgment Motions
Having found no abuse of discretion regarding the circuit court’s award of custody and child support, we turn to Father’s remaining assignments of error, which primarily center on the court’s summary denial of his March 31, 2025 contempt petition and post-judgment motions.
First, Father generally challenges the circuit court’s summary denial of his post-judgment motions, claiming that the court failed to “mak[e] the findings specifically requested in [his] Protective Notice,” and thereby “frustrating appellate review[.]” It appears that the “Protective Notice” refers to Father’s “Protective Notice and Demand for Findings of Fact and Law[,]” filed July 29, 2025. In that filing, Father reiterates the same claims that we addressed above, namely: (1) the court did not sufficiently consider the findings of Mother’s financial misrepresentation; (2) the court failed to make sufficient findings for the best interests analysis; (3) the court failed to file the child support guidelines worksheet when entering the July 16 order; and (4) the court’s child support calculation did not reflect his insurance coverage for the Child.
The denial of a motion asking the court to exercise its revisory power is an appealable order, subject to our review.
See Estate of Vess, 234 Md. App. 173, 204 (2017). However, an appeal from such an order “is not necessarily the same as an appeal from the judgment itself.” Id. Rather, “in appeals from the denial of a post-judgment motion, reversal is warranted in cases where there is both an error and a compelling reason to reconsider the underlying ruling.” Sydnor v. Hathaway, 228 Md. App. 691, 708 (2016) (citation omitted). Therefore, where, as here, a party challenges the denial of a motion for reconsideration, the party must also show that the denial “was so far wrong—to wit, so egregiously wrong—as to constitute a clear abuse of discretion.” Stuples v. Balt. City Police Dep’t, 119 Md. App. 221, 232 (1998) (emphasis in the original). “It is hard to imagine a more deferential standard than this one.” Vess, 234 Md. App. at 205. Here, as discussed, we find nothing in the record that shows the circuit court abused its discretion or otherwise committed reversible
error in determining child custody and support.
Next, Father challenges more specifically the denial of his motion to revise the January 2024 child support order, claiming that “where certified financial records impeach earlier figures, the court should either exercise revisory power or make findings engaging the new proof.” Father cites no legal authority in support of this assertion. In fact, as the circuit court correctly noted, our decisional law instructs that “an enrolled degree [may] not be vacated even though obtained by the use of forged documents, perjured testimony, or any other frauds which are ‘intrinsic’ to the trial of the case itself.” Manigan v. Burson, 160 Md. App. 114, 120-21 (2004).
In Facey v. Facey, we explained, Maryland precedent instructs that 1) “fraud is extrinsic when it actually prevents an adversarial trial, but is intrinsic when it is employed during the course of the hearing which provides the forum for the truth to appear, albeit that truth was distorted by the complained of fraud,” Schwartz v. Merch. Mortg. Co., 272 Md. 305, 309[ ] (1974); and 2) extrinsic fraud is “[f]raud which is collateral to the issues tried in the case where the judgment is rendered,” Hresko v. Hresko, 83 Md. App. 228, 232[ ](1990).
249 Md. App. 584, 616-17 (2021). Clearly the alleged fraud in the underlying case was intrinsic, and therefore, Father’s motion to revise was properly denied.
Father also challenges a footnote from the circuit court’s August 25, 2025 order, 16 in which the court stated: “Further repeated motions raising issues that have been repeatedly decided by this Court may result in [Father] being declared vexatious litigant requiring court permission to file additional motions or requests for relief with this Court.” (Emphasis
added). This footnote, however, is neither an order nor a ruling, as it merely notifies Father that he “may” be declared vexatious litigant in the future. See Riffin v. Cir. Ct. for Balt. Cnty., 190 Md. App. 11, 18, 32 (2010) (explaining that an order declaring “a person to be a ‘frivolous’ or ‘vexatious’ litigant, who must seek leave from the administrative judge before filing ‘any pleadings[]’” constitutes a sua sponte injunction).
Finally, we dismiss Father’s appeal with regard to the denial of his March 31, 2025 contempt petition, as we have no jurisdiction over that claim. In a contempt case, the statutory right of appeal is limited “to persons adjudged in contempt.” Pack Shack, Inc. v. Howard Cnty., 371 Md. 243, 254 (2002); see also Md. Code (1973, 2020 Repl. Vol.), Courts and Judicial Proceedings Article § 12-304(a) (allowing appeal from an “order or judgment . . . adjudging [a party] in contempt of court”) (emphasis added). If there is no statutory authorization for appeal, “this Court does not have jurisdiction, and we must dismiss the case sua sponte.” Ross Cont., Inc. v. Frederick Cnty., 221 Md. App. 564, 575 (2015) (cleaned up). Here, because Father is the “party who unsuccessfully [sought] to have another party adjudged in contempt[,]” Pack Shack, Inc., 371 Md. at 254, he is not entitled to appeal the denial of his contempt petition. See Ross Cont., Inc., 221 Md. App. at 575; see also Md. Rule 8-602(b)(1) (mandating dismissal of appeal “if . . . the appeal is not allowed by [Maryland] Rules or other law”). Nor do we find any indication of bias or prejudice in the denial or, for that matter, elsewhere in the court’s record; in any event, no such claim was preserved for our review. See Harford Mem. Hosp., Inc. v. Jones, 264 Md. App. 520, 542-43 (2025) (requiring parties alleging judicial bias to “identify the conduct to which they object and the relief they want during the trial”). APPEAL DISMISSED AS TO THE DENIAL OF APPELLANT’S MARCH 31, 2025 PETITION FOR CONTEMPT; JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY OTHERWISE AFFIRMED; COSTS TO BE PAID BY
1 Mother did not file a brief.
FOOTNOTES
2 Our unreported opinion in Tyler I was not yet filed at the time of the child support modification.
3 Although there is no transcript from the hearing preceding the entry of this order, the hearing sheet indicates that the court decided to set another modification hearing on June 30, 2025.
4 Although the hearing transcript shows that Father acknowledged having not paid a judgment in the amount of $3,872, this appears to be in reference to the $3,728 judgment entered in Tyler I
5 Although the court did not expressly mention Sanders by case name, the oral ruling alluded to the factors therein. See Ruiz v. Kinoshita, 239 Md. App. 395, 430 (2018) (concluding that “the record and the court’s oral ruling indicate that the court considered the relevant Witt factors—even if it did not refer to them explicitly.”); Durkee v. Durkee, 144 Md. App. 161, 185 (2002) (addressing trial court’s failure to make an express finding of voluntary impoverishment and noting that “a trial court does not have to follow a script. Indeed, the judge is ‘presumed to know the law, and is presumed to have performed his duties properly.’”).
6 On July 7, 2025, two days before the oral ruling, Father filed a motion, asking this Court to reopen his appeal in Tyler II At the July 9 oral ruling, the circuit court judge stated that he was precluded from addressing this Court’s remand pending Father’s motion. Father’s motion was denied on July 11, 2025, but he subsequently filed several other motions, all of which were denied.
7 Although Father’s notice of appeal predated the entry of the written order, we treat it “as filed on the same day as, but after, the entry on the docket.” Md. Rule 8-602(f).
8 Specifically, the court denied all Father’s post-judgment motions filed between July 9 and August 21, 2025, except his “emergency motion to enforce and clarify access and international travel restrictions,” which was granted on August 8, 2025.
9 The factors in Sanders are: (1) fitness of the parents; (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 life of the child; (7) age, health and sex of the child; (8) residences of parents and opportunity for visitation; (9) length of separation from the natural parents; and (10) prior voluntary abandonment or surrender. See Sanders, 38 Md. App. at 420.
The 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; (5) preference of the child; (6) potential disruption of child’s social and school 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; and (13) benefit to parents. See Taylor, 306 Md. at 304-11.
Together, these factors are colloquially referred to as “Taylor-Sanders” or “Sanders-Taylor” factors. See, e.g., Jose v. Jose, 237 Md. App. 588, 600 (2018).
More recently, in Azizova v. Suleymanov, this Court recognized nine additional factors that “courts are encouraged to consider” in assessing custody:
1. the ability of each of the parties to meet the child’s developmental needs, including ensuring physical safety; supporting emotional security and positive self-image; promoting interpersonal skills; and promoting intellectual and cognitive growth;
2. the ability of each party to meet the child’s needs regarding, inter alia, education, socialization, culture and religion, and mental and physical health;
3. the ability of each party to consider and act on the needs of the child, as opposed to the needs or desires of the party, and protect the child from the adverse effects of any conflict between the parties;
4. the history of any efforts by one or the other parent to alienate or interfere with the child’s relationship with the other parent;
5. any evidence of exposure of the child to domestic violence and by whom;
6. the parental responsibilities and the particular parenting tasks customarily performed by each party, including tasks and responsibilities performed before the initiation of litigation, tasks and responsibilities performed during the pending litigation, tasks and responsibilities performed after the issuance of orders of court, and the extent to which the tasks have or will be undertaken by third parties;
7. the ability of each party to co-parent the child without disruption to the child’s social and school life;
8. the extent to which either party has initiated or engaged in frivolous or vexatious litigation, as defined in the Maryland Rules; and
9. the child’s possible susceptibility to manipulation by a party or by others in terms of preferences stated by the child. 243 Md. App. 340, 346-47 (2019) (quoting Cynthia Callahan & Thomas C. Ries, Fader’s Maryland Family Law § 5-3(b) (6th ed. 2016)).
In 2025, the General Assembly codified the child custody factors for the first time in Maryland at FL § 9-201, effective October 1, 2025, but this statute was not in effect at the time of the underlying proceedings in this case. See S.B. 548, 2025 Leg., 447th Sess. (Md. 2025).
10 We also note that the circuit court’s August 2022 custody order rested on far more than just Father’s “therapy coordination issues.” As explained in this Court’s opinion in Tyler I, the court then considered and credited evidence of Father’s failure to provide necessary medical treatment for the Child, failure to ensure school attendance, and failure to share essential mental health information. 2023 WL 3943836, at *3. Specifically, the court found that Father “refused to execute the necessary consent form for the [C]hild’s therapist” and insisted on a different provider, while refusing to communicate with Mother regarding the Child’s mental health. Id.
11 We further note that the plain language of Maryland Rule 5-201(e) only mandates an opportunity to be heard, not necessarily a formal in-person hearing. As this Court observed: it is sufficient if there is at some stage an opportunity to be heard suitable to the occasion and an opportunity for judicial review at least to ascertain whether the fundamental elements of due process have been met. Moreover, with respect to legal issues, due process does not even necessarily require that parties be given an opportunity to present argument.
Wagner, 109 Md. App. at 23-24 (footnote and internal citation omitted) (emphasis added). Because Father was able to challenge the judicial notice in his post-trial motion to revise, we determine that he was afforded the opportunity to be heard. See Chevy Chase Vill. v. Montgomery Cnty. Bd. of Appeals, 249 Md. 334, 346 (1968) (“Where the question has been a close one as to whether one process required a hearing in a given situation, the fact that a court review was afforded has been held to swing the decision to the side where no hearing is necessary.”) (citation omitted).
12 Specifically, the court’s sole reference to Houser during the July 9 oral ruling occurred as the court balanced the findings of Mother’s misconduct against the court’s duty to determine the Child’s best interests for both custody and child support: I have taken [Mother’s] actions into account regarding issues of her credibility, and her action will weigh heavily on the Court’s decisions in this case. But I must not allow these actions to obstruct my duty to address the best interest of the child due to the relocation of [Mother] and what should be an appropriate amount of child support.
As the Maryland Supreme Court had just recently held in the Matter of the Marriage of Hauser [sic] . . . which was decided on June 27th of 2025, the [C]ourt noted that child support is a right held by and an obligation to the minor child, not to the parent. Consequently, [Mother’s] apparent wrongdoing must not and legally cannot affect [the Child’s] right to appropriate support in this case.
(Emphasis added).
13 In his post-judgment “Protective Notice and Demand for Findings of Fact and Law[,]” which we discuss further below, Father cites “Matthews v. Matthes, 112 Md. App. 472 (1996)” as a supporting legal authority, but there is no such case.
14 In fact, under Maryland Rules, the responsibility to provide the worksheet rests with the parties, not with the court. Maryland Rule 9-206 requires that “[i]n an action involving the establishment or modification of child support, each party . . . file a worksheet” and that “[u]nless the court directs otherwise, the worksheet . . . be filed not later than the date of the hearing on the issue of child support.” (emphasis added). In the instant case, neither party filed a child support guidelines worksheet, and the circuit court expressly noted this failure during the July 9 oral ruling.
15 In his informal brief, Father indicates that he made “no mention of ‘second child’ medical coverage” during the child support hearing in October 2022. However, the record shows that he presented a financial statement both during the child support hearing and on appeal, which lists two children and provides “[$]212” as monthly health insurance expenses for the children. The circuit court’s finding that Father claimed $212 for both children’s health insurance expenses is therefore not clearly erroneous.
16 Although this order was entered on August 25, 2025, it was signed on August 20, 2025, a day before Father filed his second notice of appeal. See Md. Rule 8-602(f).
