REPORTED
IN THE COURT
OF SPECIAL APPEALS
OF MARYLAND
No. 880
September Term, 1997
STEPHANIE SCHAEFER
v.
MICHAEL CUSACK
Murphy, C.J.
Moylan
Smith, Marvin H.
(Retired, Specially Assigned)
JJ.
Opinion by Smith, J.
Filed: December 30, 1998
We have here a custody battle between Stephanie Schaefer
(Stephanie) and Michael Cusack (Michael). It is on appeal from the
Circuit Court for Baltimore City. Multiple issues were raised.
Fortunately, several have been settled by stipulation since the
appeal was filed. We shall discuss the issues seriatim, setting
forth such facts as may be necessary for an understanding of each
issue. We shall affirm in part and reverse in part. Not only do
we have multiple issues, but we have a motion to dismiss Stephanie's
appeal and a motion to dismiss what Michael calls his "contingent
cross-appeal".
I.
MOTION TO DISMISS THE APPEAL
Michael moves to dismiss the appeal arguing that "[a] claimant
cannot accept the benefits of a trial judge or chancellor's ruling
in a disputed case, and then later attack the validity of that
ruling on appeal. Suburban Dev. Corp. v. Perryman, 281 Md. 168, 377
A.2d 1164 (1977)." He contends that here Stephanie "has taken the
benefits of the trial judge's Orders" in each of the subjects of
"custody and visitation/parental time," "child support", "monetary
award", and "award of Attorneys fees." Oddly enough at no time did
either party cite to us Dietz v. Dietz, 117 Md. App. 724, 701 A.2d
1144 (1997), rev'd, Dietz v. Dietz, ____ Md. ____ , ____ A.2d ____
(1998) [No. 6, Sept. Term, 1998, filed Nov. 16, 1998], where this
Court dismissed an appeal seeking an increase in a monetary award
because the appellant had accepted payments under the award as
rendered. We deny this motion to dismiss on the basis of Dietz.
II.
AWARD OF FUTURE CUSTODY
The parties were married on July 11, 1992, in Baltimore City.
Their only child, the subject of this litigation, Garrett Michael
Cusack (Garrett), was born September 15, 1993. The parties
separated in April, 1994. The trial judge (Brynes, J.) ordered
"that physical custody of the minor child Garrett is granted to the
plaintiff until thirty days following his completion of the fifth
grade. At that point in time, physical custody is awarded to
Michael Cusack until Garrett's eighteenth birthday . . . ."
Stephanie contends that "the trial court abused its discretion in
ordering an in futuro change in custody 30 days after Garrett
completes fifth grade (approximately eight years from the date of
the final judgment)". We agree.
Stephanie relies upon Sullivan v. Auslaender, 12 Md. App. 1,
276 A.2d 698 (1971), asserting that there "this court determined
that a separation agreement which contemplated an automatic change
in custody in the future was not in the best interests of the
children." What she does not tell us, however, is that in that case
the Court of Special Appeals substituted its judgment for that of
the trial judge and that in Davis v. Davis, 280 Md. 119, 372 A.2d
231 (1977), Judge Digges said for the Court of Appeals:
[T]here is some confusion in our cases with
respect to the standard of review applicable
to the chancellor's ultimate conclusion as to
which party should be awarded custody.
Notwithstanding some language in our opinions
that this conclusion cannot be set aside
unless clearly erroneous, see, e.g., Spencer
v. Spencer, 258 Md. 281, 284, 265 A.2d 755,
756 (1970)(per curiam); Goldschmiedt v.
Goldschmiedt, 258 Md. 22, 26, 265 A.2d 264,
266 (1970), we believe that, because such a
conclusion technically is not a matter of
fact, the clearly erroneous standard has no
applicability. However, we also repudiate the
suggestion contained in some of our
predecessors' opinions, see, e.g., Melton v.
Connolly, 219 Md. 184, 188, 148 A.2d 387, 389
(1959); Butler v. Perry, 210 Md. 332, 339-40,
123 A.2d 453, 456 (1956); Burns v. Bines, 189
Md. 157, 164, 55 A.2d 487, 490 (1947); cf. Ex
Parte Frantum, 214 Md. 100, 105, 133 A.2d 408,
411, cert. denied, 355 U.S., 882 (1957)
(adoption case), and relied upon by the Court
of Special Appeals in Sullivan v. Auslaender,
12 Md. App. 1, 3-5, 276 A.2d 698, 700-01
(1971), and its progeny, see, e.g. Sartoph v.
Sartoph, 31 Md. App. 58, 64 & n. 1, 354 A.2d
467, 471 (1976); Vernon v. Vernon, 30 Md. App.
564, 566, 354 A.2d 222, 224 (1976), that
appellate courts must exercise their "own
sound judgment" in determining whether the
conclusion of the chancellor was the best one.
Quite to the contrary, it is within the sound
discretion of the chancellor to award custody
according to the exigencies of each case,
Miller v. Miller, 191 Md. 396, 407, 62 A.2d
293, 298 (1948), and as our decisions
indicate, a reviewing court may interfere with
such a determination only on a clear showing
of abuse of that discretion. See, e.g.,
Pontorno v. Pontorno, 257 Md. 576, 581, 263
A.2d 820, 822 (1970).
Id. 124-125.
"The determination of which parent should be awarded custody
of a minor child rests within the sound discretion of the trial
court." Giffin v. Crane, 351 Md. 133, 144, 716 A.2d 1029 (1988),
citing cases.
The parties in this case can agree on but little. They do
agree that we apply the best interest standard and that the trial
judge's determination stands absent an abuse of discretion.
In Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977), Judge
Orth said for the Court:
In performing its child protection
function and its private-dispute settlement
function the court is governed by what is in
the best interests of the particular child and
most conducive to his welfare. This best
interest standard is firmly entrenched in
Maryland and is deemed to be of transcendent
importance. In Burns v. Bines, 189 Md. 157,
162, 55 A.2d 487, 489 (1947), quoting Barnard
v. Godfrey, 157 Md. 264, 267, 145 A. 614, 615
(1929), we observed that the statute giving
equity courts jurisdiction over the custody of
children 'is declaratory of the inherent power
of courts of equity over minors, and [such
jurisdiction] should be exercised with the
paramount purpose in view of securing the
welfare and promoting the best interest of the
children.' We noted in Dietrich v. Anderson,
185 Md. 103, 117, 43 A.2d 186 (1945) that the
statute has been so uniformly construed. We
said in Butler v. Perry, 210 Md. 332, 342, 123
A.2d 453, 458 (1956): 'Of course, it is too
elementary to be stressed that the welfare of
the child is the controlling test in a custody
case.'
Id. at 174-175.
More recently in Robinson v. Robinson, 328 Md. 507, 615 A.2d
1190 (1992), Judge Karwacki said for the Court:
The primary concern to a judge in
awarding custody to one parent over the other
is the best interests of the child. We have
repeatedly stated the test originally set
forth in Hild v. Hild, 221 Md. 349, 157 A.2d
442 (1960) as follows:
"For the purpose of ascertaining what is
likely to be in the best interests and welfare
of a child a court may properly consider,
among other things, the fitness of the persons
seeking custody, the adaptability of the
prospective custodian to the task, the age,
sex and health of the child, the physical,
spiritual and moral well-being of the child,
the environment and surroundings in which the
child will be reared, the influences likely to
be exerted on the child, and, if he or she is
old enough to make a rational choice, the
preference of the child. It stands to reason
that the fitness of a person to have custody
is of vital importance. The paramount
consideration, however, is the general overall
well-being of the child."
Id. at 519.
A change in circumstances ordinarily has been required for a
change of custody. In McCready v. McCready, 323 Md. 476, 593 A.2d
1128 (1991), Judge McAuliffe said for the Court:
The question of whether there has been a
material change in circumstances which relates
to the welfare of the child is, however, often
of importance in a custody case. The
desirability of maintaining stability in the
life of a child is well recognized, and a
change in custody may disturb that stability.
Stability is not, however, the sole
reason for ordinarily requiring proof of a
change in circumstances to justify a
modification of an existing custody order. A
litigious or disappointed parent must not be
permitted to relitigate questions of custody
endlessly upon the same facts, hoping to find
a chancellor sympathetic to his or her claim.
An order determining custody must be afforded
some finality, even though it may subsequently
be modified when changes so warrant to protect
the best interest of the child. As we said in
Hardisty v. Salerno, 255 Md. 436, 439, 258
A.2d 209 (1969), '[w]hile custody decrees are
never final in Maryland, any reconsideration
of a decree should emphasize changes in
circumstances which have occurred subsequent
to the last court hearing.' Even this general
statement may be subject to exception in the
case of prior facts existing but unknown and
not reasonably discoverable at the time of the
entry of the original order, such as the fact
that a parent to whom custody had been granted
was, and continues to be, a sexual abuser of
the child. See Sharp, Modification of
Agreement-Based Custody Decrees: Unitary or
Dual Standard?, 68 Va.L.Rev. 1263, 1266-71
(1982).
Id. at 481-482. See also Domingues v. Johnson, 323 Md. 486, 498
593 A.2d 1133 (1991).
Ordinarily, in determining custody the courts look to the
situation as it exists at the time. This is well illustrated by
Raible v. Raible, 242 Md. 586, 219 A.2d 777 (1966), where custody
was awarded to an admittedly adulterous mother. In that case
Judge Oppenheimer said for the Court:
No question of adultery is involved. The
period of misconduct of the wife took place
after her divorce and terminated two years
before the hearing below. As Judge Hammond
said for the Court in Trudeau v. Trudeau, 204
Md. 214, 218, 103 A.2d 563 (1954), 'no custody
matter is the image of another and in none can
the proper paths be plotted automatically on a
map of the principles laid down by the cases.'
See also, Daubert v. Daubert, 239 Md. 303,
308, 211 A.2d 323 (1965). The paramount,
overriding consideration is the welfare of the
children. In Trudeau, as here, the wife had
ceased the conduct which was the basis for the
attack upon her fitness, and the conclusion of
the Chancellor that the mother's custody of
the children should be continued (subject,
always, to the continuing jurisdiction of the
court) was affirmed. We found in Trudeau, as
we find here, that there was no compelling
reason which made the continuation of the
mother's custody not in the best interests of
the children.
Id. at 593. Attitudes relevant to adultery have changed somewhat
as indicated by Robinson, supra. See also the discussion for the
court by Judge Digges in Davis, 280 Md. at 127. That does not
change the fact, however, that in Raible the Court was looking at
the situation as it existed at the time of the hearing.
Although the procedure followed in Sullivan was disapproved,
there was no disapproval of - nor was there an issue before the
Court relative to - the language of Judge Orth for the Court of
Special Appeals in Sullivan. Judge Orth said for the court:
It is our best judgment that the children
remain in the custody of their mother. We
believe that the compromise solution of the
chancellor does not give due regard for the
welfare of the children and find no strong
reason affecting the welfare of the children
to depart from the custody award under the
divorce decree with which appellee had at one
time been content. We cannot conceive how it
would be in the best interest of the children
to take them from the mother, place them with
the father in Israel for three years, then
uproot them again and return them to the
mother in the United States for three years,
leaving their future at the end of the six
year period to be later determined.
Sullivan, 12 Md. App. at 17-18.
The principle of requiring a change in circumstances for a
change of custody is another indicator of looking at the
circumstances as they exist at the time the custody order is
passed.
In Hild v. Hild, 221 Md. 349, 357, 157 A.2d 442, (1960), as
Judge Karwacki pointed out for the Court in Robinson, Judge Horney
discussed for the Court factors to be considered in determining
custody. This was summed up more recently in Montgomery County v.
Saunders, 38 Md. App. 406, 381 A.2d 1154 (1978), Chief Judge
Gilbert for this Court said that the factors to be considered in
determining custody of a child include:
"but [are] not limited to, 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, 10) prior
voluntary abandonment or surrender."
(citations omitted).
Id. at 420.
We have not the faintest idea of what the situation of the
parents may be at the time when this child completes the fifth
grade, obviously a number of years hence. We know not what the
living conditions of the parties at that time will be. We know not
where the parties will be living. We do not know what their
incomes will be. We have no idea of what kind of physical
condition the parents or child will be in at that time. We do not
know what the preference of the child at that time may be. We have
no idea whatever as to the condition under which the parents will
be living. Although thus far there has been no hint of immorality,
we do not know what the situation will be at the time of the
contemplated change in custody. We do not know what effect a
change in custody might have on the child. All of these are
relevant considerations.
It is hard enough to look into the future and to determine
what may be perceived as the best interest of the child on the
basis of circumstances as they exist at the time of a custody
hearing. We consider it to be an abuse of discretion to attempt to
look ahead and to determine now that it will be in the best
interests of a child who has not yet entered kindergarten to have
his custody changed upon completion of the fifth grade.
III.
Child Support and Other Financial Matters
Issues were briefed on appeal contending that the trial judge
abused his discretion when he awarded in futuro child support, when
he attributed certain annual income to Stephanie, and when he
ordered her to execute a yearly waiver of the income tax dependency
exemption for Garrett. At oral argument we were advised that we
are not obliged to address those issues by virtue of a consent
order entered into by the parties on January 12, 1998.
IV.
Summer Visitation
Stephanie contends that the trial judge abused his discretion
in awarding Michael six weeks of summer visitation "in light of
Michael's extensive work and travel schedule." She refers to the
fact that "the obligations of Michael's employment are demanding on
his time," that "he works late nights, weekends and travels out of
the country on a monthly basis." From this she argues that he
"will have no choice but to place Garrett in the custody of a third
party while Michael works." That does not necessarily follow. If
Michael has visitation it will be up to him to work out just how he
handles the matter, subject, of course if necessary, to the
approval of the trial court. We perceive no abuse of discretion.
V.
Counsel Fees
Stephanie complains because she says the trial judge failed to
address her request for counsel fees. Michael's reply to that is
that "[t]he trial judge stated throughout his opinions that the
conditions that would justify the award of counsel fees were not
present in this case." Unfortunately, however, Michael gives no
citation to the record extract to back up this assertion. In
ACandS v. Asner, 344 Md. 155, 190, 686 A.2d 250 (1996), Judge
Rodowsky said for the Court of Appeals, after referring to the
requirement of Maryland Rule 8-501(c) that the record extract
"contain all parts of the record that are reasonably necessary for
the determination of the questions presented by the appeal," "[the
Court of Special Appeals] has appropriately held that a party may
lose the right to appeal on an issue by failing to indicate in that
party's brief the location in the record where the alleged error
occurred. See Mitchell v. State, 51 Md. App. 347, 357-58, 443 A.2d
651, 657, cert. denied, 459 U.S. 915, 103 S. Ct. 227, 74 L.Ed.2d.
180 (1982)." Id. at 192.
Maryland Code (1991, 1997 Cum. Supp.), 12-103, Family Law
Article, provides in relevant part that "[t]he court may award to
either party the costs and counsel fees that are just and proper
under all the circumstances in any case in which a person . . .
applies for a decree or modification of a decree concerning the
custody, support, or visitation of a child of the parties . . . ."
This issue must be addressed. In Scott v. Scott, 103 Md. App.
500, 524-25, 653 A.2d 1017, 1029 (1995), this Court said, "The
trial court never addressed Wife's request for fees and costs.
Accordingly, we remand so the trial court may determine whether
Wife is entitled to the attorney's fees she requested. The court
shall articulate the basis for its decision." (Citing Bagley v.
Bagley, 98 Md. App. 18, 41, 632 A.2d. 229 (1993), cert. denied 334
Md. 18, 637 A.2d 1191 (1994)).
On the remand we respectfully but strongly recommend that the
chancellor ask some other judge to consider the issue of counsel
fees.
VI.
401k Plan
Stephanie next contends that the trial court committed
reversible error by valuing Michael's 401k plan as of June 30,
1995, which was twenty months prior to the divorce decree's
becoming final. She claims, "At the post-judgment motions hearing
Stephanie requested the court to value the plan as of the date of
divorce. (E. 362-363). The trial court refused. This was clear
error."
Pages 362 and 363 in the record extract are pages 41 and 42 in
the transcript. Page 364 is transcript page 49 and page 365 is
transcript page 50. These have no relation to the issue at hand.
Nowhere on extract 362 or 363 does the trial judge rule on this
contention. If he did so rule at some other place, it was the
responsibility of counsel for Stephanie to provide a proper
citation to the record extract. There is ample authority over the
last fifty years or more to the effect that appellate courts are
not obliged to go through the record to find where a point was
actually ruled upon, if it was. Moreover, as Michael suggests, a
trial judge is permitted to use a wide variety of methods to
calculate value, citing, correctly, Deering v. Deering, 292 Md.
115, 129, 437 A.2d 883 (1981). He further asserts that a judge
"can use any method he or she considers appropriate to the
circumstances," citing Goldberg v. Goldberg, 96 Md. App. 771, 780-
781, 626 A.2d 1062 (1993).
The point appears not to have been preserved for appellate
review. Moreover, if we were to consider it on its merits, it
would appear that we would be obliged to affirm.
VII.
Payment of Monetary Award
Without citation of authority Stephanie argues:
The trial court ordered Stephanie's
monetary award of $7,008.28 payable over 36
months. (E. 400). Michael earns over
$152,000 per year as a Vice-President of First
National Bank. He had assets titled in his
name worth at least $432,000 (E. 038). He is
under an order to pay child support of $883.00
per month. (E. 221). He is ordered to pay
nothing more. Under these circumstances, it
was an abuse of the trial court's discretion
in failing to order Michael to pay the
$7,008.28 monetary award in a lump sum.
That is the complete argument presented on this point.
Maryland Code (1991, 1997 Cum. Supp.), 8-205, Family Law
Article, states in pertinent part:
(a) Subject to the provisions of subsection
(b) of this section, after the court
determines which property is marital property,
and the value of the marital property, the
court may transfer ownership of an interest in
a pension, retirement, profit sharing, or
deferred compensation plan from one party to
either or both parties, grant a monetary
award, or both, as an adjustment of the
equities and rights of the parties concerning
marital property, whether or not alimony is
awarded.
(b) The court shall determine the amount
and the method of payment of a monetary award,
or the terms of the transfer of the interest
in the pension, retirement, profit sharing, or
deferred compensation plan, or both, after
considering each of the following factors:
(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 the pension,
retirement, profit sharing, or deferred
compensation plan, was acquired, including the
effort expended by each party in accumulating
the marital property or the interest in the
pension, retirement, profit sharing, or
deferred compensation plan, 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
the pension, retirement, profit sharing, or
deferred compensation plan, or both.
It will be observed that nothing has been pointed out by Stephanie
to indicate that the trial judge failed to consider any factor set
forth in 8-205(b).
Not too long ago, in Scott, 103 Md. App. at 517, the parties
were arguing over whether payments should be made in an immediate
lump sum payment or in installments. This Court said:
It is well established that both the amount
and manner of payment of a monetary award are
committed to the discretion of the trial
court. Ross v. Ross, 90 Md. App. 176, 188,
600 A.2d 891, vacated on other grounds, 327
Md. 101, 607 A.2d 933 (1992). 'The entire
award can be made immediately due and payable
or all or part of it can be made payable in
the future.' McClayton v. McClayton, 68 Md.
App. 615, 622, 515 A.2d 231 (1986).
We perceive no abuse of discretion on the part of the chancellor on
this issue.
VIII.
Relocation of the Parties
Stephanie takes issue with that portion of the decree which
states:
"4. Ms. Schaefer's Relocation
This is the first occasion upon which Mr.
Cusack has made this request. Section 9-
106(a)1 of the Family Law Article states:
in any custody or visitation
proceeding the court may include as
a condition of a custody or
visitation order a requirement that
either party provide advance
written notice of at least 45 days
to the court, the other party, or
both, of the intent to relocate the
permanent residence of the party or
the child either within or outside
the State.
Because this request is reasonable under the
circumstances, and because the court has been
granted the statutory authority to issue such
an order, Ms. Schaefer must inform Mr. Cusack
at least 45 days in advance of an intention to
relocate. This is required of Mr. Cusack as
well. Further, unless some extraordinary or
unusual circumstance compels it, neither party
should live at a distance of 45 miles from one
another. The Court anticipates that the
common sense of the parties will enforce this
and that the parties, even if remarried, will
live as close to one another as practicable."
Stephanie argues:
The trial court had no jurisdiction to
restrict the parties from relocating to a
distance of more than 45 miles from one
another. Regardless of the rationale
underpinning this aspect of the trial court's
ruling, it is clear that this ruling infringes
upon Stephanie's liberties of autonomy,
privacy, travel, family and marriage.
Stephanie and Garrett should be free to
relocate unless the court makes a clear
finding by clear and convincing evidence that
such a move would endanger Garrett's safety.
As in all matters involving custody of children, this issue
must be addressed under the best interest of the child formula.
Typically, issues involving relocation arise upon an attempt or
request for relocation, not, as here, on a prohibition against
relocation beyond a specified area. See, e.g., Arthur B. LaFrance,
Child Custody and Relocation: A Constitutional Perspective, 34 U.
Louisville J. Fam. L. 1 (1995-96); Carol S. Bruch & Janet M.
Bowermaster, The Relocation of Children and Custodial Parents:
Public Policy, Past and Present, 30 Fam. L.Q. 2 (Summer 1996);
Richard M. Bryan, Beyond Burgess - One year later, 20 Fam. Advocate
2 (Fall 1997) at 14.
We find significant what has been recently said by two
respected courts of last resort addressing relocation issues.
The court opened its opinion In re Marriage of Burgess, 13
Cal. 4th, 25, 51 Cal. Rptr., 2d 444, 913 P.2d 473 (1996), by saying
that the case: "require[d] [it] to determine whether a parent
seeking to relocate after dissolution of marriage is required to
establish that the move is 'necessary' before he or she can be
awarded physical custody of minor children" Id. 913 P.2d at 476.
In the course of the opinion it observed:
As this case demonstrates, ours is an
increasingly mobile society. Amici curiae
point out that approximately one American in
five changes residences each year. Economic
necessity and remarriage account for the bulk
of relocations. Because of the ordinary needs
for both parents after a marital dissolution
to secure or retain employment, pursue
educational or career opportunities, or reside
in the same location as a new spouse or other
family or friends, it is unrealistic to assume
that divorced parents will permanently remain
in the same location after dissolution or to
exert pressure on them to do so. It would
also undermine the interest in minimizing
costly litigation over custody and require the
trial courts to "micromanage" family decision
making by second-guessing reasons for every
day decisions about career and family.
More fundamentally, the "necessity" of
relocating frequently has little, if any,
substantive bearing on the suitability of a
parent to retain the role of a custodial
parent. A parent who has been the primary
caretaker for minor children is ordinarily no
less capable of maintaining the
responsibilities and obligations of parenting
simply by virtue of a reasonable decision to
change his or her geographical location.
Id. at 480-81. The court opened footnote 6 by saying, "An obvious
exception is a custodial parent's decision to relocate simply to
frustrate the non-custodial parent's contact with the minor
children."
In Burgess, as the court put it, "a parent with temporary
physical custody of two minor children sought a judicial
determination of permanent custody and expressed the intention to
relocate with the children from Tehachapi to Lancaster, California,
a distance of approximately 40 miles." This was permitted by the
trial court. The Court of Appeal reversed. The Supreme Court of
California reversed the Court of Appeal, saying:
[W]e recognize that bright line rules in this
area are inappropriate: each case must be
evaluated on its own unique facts. Although
the interests of a minor child in the
continuity and permanency of custodial
placement with the primary caretaker the most
often prevail, the trial court in assessing
"prejudice" to the child's welfare as a result
of relocating even a distance of 40 or 50
miles, may take into consideration the nature
of the child's existing contact with both
parents - including de facto as well as de
jure custody arrangements - and the child's
age, community ties, and health and
educational needs. Where appropriate, it must
take into account the preferences of the
child."
Id. 913 P.2d at 483.
In Tropea v. Tropea, 57 N.Y.2d. 727, 665 N.E.2d, 145 (1996),
the court opened the opinion by stating, "In each of these appeals,
a divorced spouse who was previously granted custody of the
couple's minor offspring seeks permission to move away from the
area in which the non-custodial spouse resides." The court
referred to a "series of formulae and presumptions to aid them in
making their decisions in these difficult relocation cases" that
lower courts had adopted. The first was "whether the proposed
relocation would deprive the non-custodial parent of "regular and
meaningful access to the child . . . ." (citing cases). The
second was "[w]here a disruption of 'regular and meaningful access'
is not shown, the inquiry is truncated and the courts generally
will not go on to assess the merits and strength of the custodial
parents' motive for moving." (citing cases) Then, "[w]here a
disruption is established, a presumption that the move is not in
the child's best interest is evoked and the custodial parent
seeking to relocate must demonstrate 'exceptional circumstances' to
justify the move. . . ." (citing cases) After that the "court
will go on to consider the child's best interests." After
observing that "[o]ne problem with the three-tiered analysis is
that it is difficult to apply," the court said:
On a more fundamental level, the three-tiered
test is unsatisfactory because it erects
artificial barriers to the courts'
consideration of all of the relevant factors.
Most moves outside of the non-custodial
parent's locale have some disrupting effect on
that parent's relationship with the child.
Yet, if the disruption does not rise to the
level of a deprivation of "meaningful access"
the three-tiered analysis would permit it
without any further inquiry in such salient
considerations as the custodial parent's
motives, the reasons for the proposed move and
the positive or negative impact of the change
on the child. Similarly, where the
noncustodial parent has managed to overcome
the threshold "meaningful access" hurdle, the
three-tiered approach requires courts to
refuse consent if there are no "exceptional
circumstances" to justify the change, again
without necessarily considering whether the
move would serve the child's best interests or
whether the benefits to the children would
outweigh the diminution in access by the non-
custodial parent. The distorting effect of
such a mechanical approach may be amplified
where the courts require a showing of economic
necessity or health-related compulsion to
establish the requisite "exceptional
circumstances" [citing cases] or where the
demands of a new marriage are summarily
rejected as a sufficient basis for satisfying
this test.
Id. 149 - 150.
The New York Court of Appeals further stated:
Accordingly, rather than endorsing the
three-tiered meaningful access exceptional-
circumstances analysis that some of the lower
courts have used in the past, we hold that
each relocation request must be considered on
its own merits with due consideration of all
the relevant facts and circumstances and with
predominate emphasis being placed on what
outcome is most likely to serve the best
interests of the child. While the respective
rights of the custodial and noncustodial
parents are unquestionably significant factors
that must be considered [citing cases], it is
the rights and needs of the children that must
be accorded the greatest weight, since they
are innocent victims of their parents'
decision to divorce and are the least equipped
to handle the stresses of the changing family
situation.
Id. at 150. See also Frayne v. Frayne, 651 N.Y.S.2d 583, 234 A.D.
545 (N.Y. App. Div. 1996).
In this case we have no findings or statements relative to
the needs of the child in the imposition of this 45-mile limit. It
does not necessarily follow that it should be permissible for the
parents to be 44 miles apart but against the best interests of the
child for them to be 46 miles apart. We hold that the best
interest of the child can be determined better at the time a
relocation is proposed than in an attempt to look into the future
and to say now that the best interest of the child requires a
present determination that a separation of the parents by more than
45 miles would have an adverse effect upon the child.
IX.
The Diaries
Finally, Stephanie takes umbrage relative to the chancellor's
requirement that "[u]ntil December 31, 1999, the parents are to
maintain diaries recording their personal histories of the
implementation of this parental time schedule and such other
pertinent matters as each parent may deem desirable."
Our research has not disclosed any case anywhere, anytime
where such an issue has reached an appellate court. That is not to
say, however, that there may not have been instances where courts
have imposed such a mandate.
What a given parent may regard as a "pertinent matter[]"
"desirable" to be recorded is an order hard to enforce, to put it
mildly, because on any given matter other than the recordation of
"personal histories of the implementation of this parental time
schedule," a parent, if questioned, might simply say he or she did
not regard it as pertinent or desirable to record the point.
When the parties "maintain diaries recording their personal
histories of the implementation of th[e] parental time schedule",
there will be a basis for refreshing recollections in the event of
a dispute. We cannot say that the chancellor abused his discretion
in imposing this requirement, novel as it may be.
X.
Motion to Dismiss Contingent Cross-Appeal
Michael filed what he termed a "contingent" cross-appeal.
Stephanie has moved to dismiss. She argues:
The Memorandum Opinion dated February
25, 1997, disposed of all pending post-
judgment motions. Accordingly, the docketing
of the Memorandum Opinion had the effect of
making the Final Judgment final for appeal
purposes. The Memorandum Opinion was docketed
on March 5, 1997 . . . . Thus, the thirty-day
period within which to timely note an appeal
of the final judgment expired on April 4,
1997, thirty days from the date the Memorandum
Opinion was docketed.
Michael failed, prior to April 4, 1997,
to note an appeal of the Final Judgment;
rather, on or about April 15, 1997, Michael
untimely filed what he styled as a Notice of
Contingent Cross-Appeal after having filed on
or about March 6, 1997, the Petition for
Modification, requesting the trial court to
modify its Memorandum Opinion dated February
25, 1997. The Petition for Modification was
improperly filed, was a nullity and should not
have been treated as a post-judgment motion
filed pursuant to Md. Rule 2-534 or 2-535.
Because it requested the trial court to modify
the decision which adjudicated Michael's post-
judgment motions filed pursuant to Md. Rules
2-534 and 2-535. The Maryland Rules do not
permit the filing of a motion challenging the
denial of a post-judgment motion. Office of
People's Counsel v. Advance Mobile Home Corp.,
75 Md. App. 39, cert. denied, 313 Md. 30
(1988).
Stephanie has it all wrong. Rule 2-534 states in pertinent
part:
In an action decided by the court, on motion
of any party filed within ten days after entry
of judgment, the court may open the judgment
to receive additional evidence, may amend its
findings or its statement of reasons for the
decision, may set forth additional findings or
reasons, may enter new findings or new
reasons, may amend the judgment, or may enter
a new judgment.
The new judgment becomes the final judgment.
The applicable legal principles are:
1. A motion to revise the judgment filed more
than ten days (but within thirty days) after
the judgment is docketed does not affect the
finality of the judgment or the running of the
time for appeal. (An appeal must be filed
within thirty days after the judgment, not the
denial of the motion).
2. After a judgment becomes enrolled (thirty
days after it is docketed, if no appeal or
motion to revise is filed), it may be revised
only upon a showing of fraud, mistake, or
irregularity.
3. A motion to revise the judgment filed
within ten days of the judgment does deprive
the judgment of its finality. (An appeal must
be filed within thirty days after the motion
is denied; an appeal filed before the motion
is ruled upon is premature.)
4. When a timely motion to revise a judgment
is filed and the circuit court in fact revises
the judgment, the revised judgment becomes the
effective final judgment in the case.
People's Counsel involved principles one and two. In
People's Counsel, Advance filed a zoning appeal in the circuit
court. That court affirmed. Fourteen days later, Advance filed a
motion to revise the judgment. Several months later the court
denied the motion. Four months after the entry of judgment and
twenty-two days after the judge denied Advance's motion to revise,
intervenors filed a motion to intervene and a motion to revise.
The circuit court granted those motions. People's Counsel
appealed. This court vacated the revised judgment and reinstated
the original judgment. We reasoned that when the circuit court
denied the motion to revise, the judgment became enrolled as of
thirty days after its entry, and was thereafter subject to revision
only upon a showing of fraud, mistake, or irregularity.
This case involves principles three and four:
May 3, 1996 - the "Final Judgment" was
docketed.
May 13, 1996 - Michael filed a motion to
revise the judgment. Since the motion was
filed within ten days after the judgment, it
deprived the judgment of its finality.
March 5, 1997 - a revised judgment was
docketed. Since the trial court in fact
revised the judgment, the prior judgment lost
whatever finality it might have, and the
revised judgment became the effective final
judgment in this case.
March 6, 1997 - Michael filed a motion to
revise the revised judgment. Since it was
filed within ten days, it deprived the revised
judgment of its finality. (In Edsall v. Anne
Arundel County, 332 Md. 502, 632 A.2d 763
(1993), the Court concluded its opinion by
stating:
[A] notice of appeal filed prior to the
withdrawal or disposition of a timely filed
motion under Rule 2-532, 2-533 or 2-534 is
effective. Processing of that appeal is
delayed until the withdrawal or disposition of
the motion. The trial court retains
jurisdiction to decide the matter
notwithstanding the filing of the notice of
appeal.
Id. at 332 Md. 508.)
March 26, 1997 - Stephanie filed a notice of
appeal. (Although it was premature, it is
"effective" but processing is delayed until
the disposition of the motion to revise. See
Edsall.)
April 9, 1997 - The court granted in part and
denied in part both the motion to revise and
the motion to strike it. A revised judgment
was entered; it became the effective final
judgment.
April 15, 1997 - Michael filed a notice of
contingent cross-appeal.
April 28, 1997 - Stephanie filed a second
notice of appeal (which is within thirty days
after the revised revised judgment.)
We conclude that Michael's notice of contingent cross-appeal was
filed within thirty days after the entry of the revised revised
judgment (that is, the effective final judgment). Therefore, it
was timely filed. See, Unnamed Att'y v. Attorney Grievance Comm'n,
303 Md. 473, 486, 494 A.2d 940, 946 (1985).
XI.
Visitation
In his first contention on the contingent cross-appeal
Michael points out that under the visitation order issued by the
chancellor in November, 1995, he was afforded parental time with
young Garrett on each weekend. He says this order was in place
from then until the end of February, 1997, "a total of sixteen
months. At the time, that sixteen month period covered over one-
third of Garrett's life." He argues that this "created a status-
quo in Garrett's life that the trial judge was required to consider
before changing Mr. Cusack's parental time in his order of February
25, 1997. He contends that "the trial judge's opinion of February
25, 1997 does not manifest any consideration of evidence as to the
status quo in young Garrett's life to that point." We do not see
it that way.
This is a bitterly contested case between contentious
parties. One might even say overly contentious parties. The
chancellor in this case obviously went to great lengths in a
conscientious and thorough attempt to address the issues before
him. The fact that he did not in so many words address the point
made by Michael does not mean that the contention was not
considered nor does it mean that he abused the discretion vested in
him. We find it significant that relative to the change he said:
The plaintiff produced a witness, Ms. Gentry,
the head mistress of Cedarcroft School, which
Garrett attends. Ms. Gentry testified that
she has some concerns about Garrett. She
believes that the visitation schedule is
stressful for Garrett; and, in fact, would be
stressful for any child. Ms. Gentry
specifically testified that Mondays, after Mr.
Cusack has delivered Garrett to Ms. Schaefer
prior to Garrett coming to Cedar Croft, are
stressful for him and that he cannot easily
settle down. She stated that Garrett is prone
to aggressiveness when his routine is changed.
She testified that Garrett begins to settle
down as the week progresses; but that his
routine is then broken by the
Wednesday/Thursday exchange between the
parents, causing Garrett more stress. This
evidence was persuasive, although there can be
little doubt that there are other contributors
to the young child's stress.
Therefore, subject to voluntary agreed
modifications of the parents, which the court
strongly encourages as and when appropriate,
the parental time schedule will be modified as
follows.
The court then went on to set forth the terms of modification.
We deem this contention to be without merit.
XII.
Testimony of Ms. Gentry
Michael makes the point that in the chancellor's opinion he
quoted from the comments of Ms. Gentry which we have set forth
above. He contends that these "comments cannot properly be
considered testimony as the trial judge did not have her swear to
the truth of her testimony as required by Maryland Rule 5-603." He
says that his attorney asked that Ms. Gentry be sworn but the trial
judge stated that he did not find it necessary. From this he
argues that the use and explicit reliance on Ms. Gentry's comments
"constituted the rendering of a decision based on unsworn testimony
or evidence."
When Ms. Gentry took the stand to testify the following
exchange took place between the trial judge and the attorney for
Michael:
The Court: Do you [Ms. Gentry] have personal
memory of Garrett?
Counsel for Michael: Your Honor can [Ms.
Gentry] be put under oath?
The Court: I don't think it's necessary. If
you insist we can.
The attorney for Michael did not insist. She testified. There was
no objection to her testimony. The attorney for Michael did not
move to strike the testimony. Michael's attorney had the
opportunity to cross-examine Ms. Gentry. Rule 2-517 states in
pertinent part:
An objection to the admission of evidence
shall be made at the time the evidence is
offered or as soon thereafter as a grounds for
objection become apparent. Otherwise, the
objection is waived.
Professor Lynn McLain in her excellent work on Maryland Evidence,
Section 603.1 at 26 (1987) states:
"Objection to a witness' testifying who has
not made an oath or affirmation will be
considered waived unless made before the
testimony or, if the witness is not on the
stand as soon as it should be apparent that
the witness is testifying."
We deem the point waived.
MOTION TO DISMISS APPEAL AND MOTION
TO DISMISS CONTINGENT CROSS-APPEAL
DENIED; JUDGMENT AFFIRMED IN PART
AND REVERSED IN PART AND CASE
REMANDED TO THE CIRCUIT COURT FOR
BALTIMORE CITY FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS
OPINION; COSTS TO BE DIVIDED
EQUALLY BETWEEN THE PARTIES.