Unreported Cases in Brief

The Circuit Court for Anne Arundel County did not err in terminating a mother’s parental rights with respect to her two children where the evidence showed that one of the children had been severely abused with a brush, belt and belt buckle; neither did the judge err in evaluating evidence that the mother had minimized the abuse of her son. “Section 5-313(a) of the Family Law Article provides:

A court may grant a decree of adoption or a decree of guardianship without the consent of a natural parent…if the court finds by clear and convincing evidence that it is in the best interest of the child to terminate the natural parent’s rights as to the child…

To determine a child’s best interest, the trial court must analyze each of the factors contained in section 5-313(c) of the Family Law Article.

When, as here, the children have been adjudicated CINA, the trial court must also consider the conditions in section 5-313(d).

Section 5-313(c)(1) of the Family Law Article requires the trial judge to give ‘primary consideration to the safety and health of the child’ in determining whether to terminate parental rights. Judge Davis-Loomis considered the severe nature of Timothy’s post-traumatic stress disorder, which was caused by his mother’s abuse, the severity of Timothy’s injuries from the abuse, the concerns over the possibility that Ms. H. may have personality disorders, the regression Timothy experienced when family therapy resumed after Ms. H.’s incarceration, the opinions of two therapists that it was unsafe for Timothy to return to his mother, and the opinions of three therapists that ‘both children remain at risk with their mother.’ Judge Davis-Loomis relied upon all these findings before reaching her evaluation, in addition to Ms. H.’s minimizing Timothy’s abuse.

Section 5-313(d)(1)(ii) requires the trial court to consider whether ‘the natural parent has committed acts of abuse or neglect toward any child in the family’ and Judge Davis-Loomis relied upon the ‘undeniable evidence’ of the abuse of Timothy in reaching her finding of abuse.

Section 5-313(d)(1)(v)(1) requires the trial court to consider whether ‘the natural parent has…subjected the child to…torture, chronic abuse, or sexual abuse;…’ In finding that the abuse was chronic, Judge Davis-Loomis relied on the evidence of the severity of Timothy’s abuse, his severe post-traumatic stress disorder, and Cache’s exposure to the abuse. In considering this factor, as with section 5-313(d)(1)(ii), there is no mention of Ms. H.’s minimization of the abuse.

In short, the evidence presented strongly supports the conclusion that Timothy was severely abused. Among other things, Timothy had belt buckle marks on his legs and back when DSS took him into protective custody in late November 2000.

Although the pictures clearly showed buckle marks on his body, Ms. H. consistently denied having hit Timothy with a belt buckle. This alone provided an ample basis in support of the finding that Ms. H. had consistently minimized her abusive conduct.

The testimony of the experts concerning Ms. H.’s ‘minimization’ had a sound factual basis, and nothing in the record suggests that Judge Davis-Loomis failed to evaluate that or any other evidence appropriately.

Ms. H. also contends that Judge Davis-Loomis should, at the very least, not terminate her parental right to Cache.

[A]s far as can be determined, Timothy [was] appropriately cared for until he reached school age — when the child abuse commenced. The main rationale appellant gave for disciplining Timothy the way she did was that he was not performing well in school. [Cache] has not reached school age yet. Nothing in Ms. H’s history demonstrates that she is now able to handle stresses associated with school-age children.” Slip op. at various pages, citations and footnotes omitted.

The Circuit Court for Montgomery County did not err in modifying a couple’s joint legal custody of their daughter to give the father, instead of the mother, final decision-making authority in the event that the couple is unable to agree; or in changing the parents’ schedules for the Jewish holidays. “On April 12, 2002, Robert filed a petition to modify custody, requesting that he be given primary physical and sole legal custody of [the daughter], with visitation in Debra.

The court found a material change in circumstances, based on Debra’s move to Frederick and on the worsening communications between Debra and Robert. The court considered and addressed the merits of the modification request and ruled not to change primary physical custody. The court also ruled not to change joint legal custody, except to give Robert (instead of Debra) the final decision-making authority over significant issues in [the daughter’s] life, when the parties could not agree.

The court also modified the original custody order to 1) provide that [the daughter] ‘shall continue in therapy with Dr. Gail Thornburgh,’ and that the parties ‘shall make [the daughter] available for such visits at such times as shall be requested by Dr. Thornburgh’; 2) appoint a Parenting Coordinator, Karen P. Freed; and 3) change the visitation schedule, including making changes for visitation on Rosh Hashanah and Yom Kippur.

Debra contends that the trial court abused its discretion in modifying the March 11, 2002 custody order to give Robert final decision-making authority in the event of an impasse.

Before a court may grant a motion to modify a final order deciding custody or visitation, it must first make a threshold finding of a material change in circumstances.

Once the court has found a material change in circumstances, it then must address the requested change in custody or visitation. [T]he court’s ‘paramount concern’ must be the best interest of the child.

[T]he trial court first addressed the material change in circumstances issue, and made an express finding that there had been a material change in circums
tances, both on the basis of Debra’s impending move from Bethesda to Frederick, and on the basis that the parents’ difficulties in communicating had worsened.

Debra argues that it is always inherently illogical and unreasonable for a court to make the non-custodial parent the final decision-maker, because doing so allows that parent to ‘intrude upon’ the day-to-day decision-making of the custodial parent.

[T]he premise to Debra’s argument is flawed. Legal custody concerns the right to make long range decisions about major issues affecting the child’s life and welfare. It does not concern ordinary day-to-day parental decision-making. In this case, when [the child] is in Debra’s physical custody, Debra is entitled to make the routine day-to-day decisions about her welfare. (Likewise, Robert is entitled to make those decisions during his visitation periods.) That authority is not affected by the award of legal custody.

[The court] made that change because the evidence showed that, when Debra had final decision-maker status, she did not cooperate in trying to reach decisions on major issues jointly with Robert, as was required; rather, she invoked her final decision-maker status to leave Robert out of the process, and made the decisions alone. To rectify that problem, the court made Robert the final decision-maker. That modification was for the purpose of increasing effective communication between, and joint decision-making by, [the child’s] parents, which would be in the child’s best interest. That decision was not unreasonable or arbitrary.

Debra [argues] that the trial court abused its discretion by modifying the visitation schedule so that visitation with [the child] on Rosh Hashanah and Yom Kippur occurs equally, as between Robert and Debra, only if Debra intends to take [the child] to temple on those holidays. We disagree that this modification was an abuse of discretion.

The evidence [showed] that Robert had taken steps more consistently to ensure that [the child] would attend services and engage in the customs of her religion. In light of that evidence, the court acted reasonably in assuming that Robert would continue to take [the child] to temple, as he had in the past, and in splitting visitation on Rosh Hashanah and Yom Kippur only when Debra also intended to take [the child] to temple.” Slip op. at various pages, citations and footnotes omitted.

The Circuit Court for Baltimore County did not err in holding that a cohabitation clause in a divorcing couple’s alimony agreement terminated the husband’s alimony payments to the wife; or in admitting the deposition testimony of the couple’s son concerning his mother’s cohabitation with a man. “In February 2001, appellee stopped paying alimony to appellant because he believed that appellant had violated Paragraph 3, subsection d of the parties’ divorce decree.

In April 2001, appellant filed in the Circuit Court for Baltimore County a petition for contempt, later amended, alleging that appellee owed her alimony. In his response, appellee argued that his obligation to pay alimony had ended because there had occurred ninety “Events” within a one hundred eighty “day/night” period, as set forth in Paragraph 3, subsection d of the divorce decree. Appellee’s decision to terminate the alimony payments was based on his receipt of knowledge that appellant had been living with her then-boyfriend[.]

Appellant contends that the language of the Events Clause is ambiguous and that the court erred in interpreting the clause.

An agreement between the parties as to alimony is subject to the same general rules of construction applicable to other contracts.

The principles of contract construction make clear that the court did not err in finding that the Events Clause, specifically that portion of the clause on which the court relied, “sharing a common dwelling overnight with a man not related to her by blood or marriage who has no interest in the property,” was not ambiguous. Indeed, appellant concedes as much in her brief.

The plain language of the divorce decree reflects that the parties intended for the payment of alimony to cease upon the occurrence of ninety “Events” in any one hundred eighty day period.

Appellant testified that she and Mr. Pulaski were romantically involved for several months in 1999, and that during that year Mr. Pulaski spent no more than thirty nights, either at her home in Baltimore County or at her condominium in Bethany Beach.

Appellee testified that he stopped paying alimony to appellant after learning, from a private investigator that he had hired, that appellant and Mr. Pulaski had been living together for approximately six months.

Over objection by appellant, the deposition of [the parties’ youngest child] was also admitted into evidence. [He] testified that appellant and Mr. Pulaski lived together throughout the summer of 1999 and ‘all through the winter until I guess early 2000.’

Appellant contends that the language of the Events Clause is ambiguous and that the court erred in interpreting the clause.

The principles of contract construction make clear that the court did not err in finding that the Events Clause, specifically that portion of the clause on which the court relied, ‘sharing a common dwelling overnight with a man not related to her by blood or marriage who has no ownership interest in the property,’ was not ambiguous.

Appellant argues that the court abused its discretion in admitting as evidence the deposition testimony of [the couple’s youngest son.] We disagree.

The court found that [he] was unavailable to testify, within the meaning of the term in the Maryland Rules, because he had invoked his Fifth and Sixth Amendment rights.

Appellant cites no authority, and we have found none, prohibiting the court from admitting the [son’s] deposition testimony under the ‘exceptional circumstances’ attendant here.” Slip op. at various pages, citations and footnotes omitted.

The Circuit Court for Montgomery County did not err in denying a wife’s exceptions to the master’s recommendation to incorporate a settlement agreement into a divorce judgment, where
the court adequately considered her claim that she was coerced into entering the agreement by her former attorney and where she was unable to prove the elements of duress. “On September 4, 2002, the parties appeared before the family law master for a merits hearing. After several hours of testimony and argument, counsel asked for a recess in order to discuss a possible settlement. During the recess they engaged in what are described as ‘intense settlement negotiations.’ When the parties returned from the luncheon recess, they proposed a settlement agreement to the master that would result in the grant of an absolute divorce on mutual and voluntary separation grounds.

After the terms of the agreement were recited[,] counsel for the parties acknowledged the terms.

Both parties were sworn, and both acknowledged their understanding of the terms and agreed that they had voluntarily and knowingly entered into the agreement. The master recommended that the circuit court grant an absolute divorce and incorporate the terms of the agreement into the judgment.

Appellant filed exceptions to the master’s findings and recommendations alleging, for the first time, that she was intimidated and coerced by her trial counsel into accepting the terms of the agreement. After a hearing, the circuit court denied Ms. Durairaj’s exceptions and granted the parties’ divorce based on the master’s findings and recommendations. The agreement was incorporated into the judgment [and Ms. Durairaj appealed].

Appellant did not raise her concerns about the settlement agreement before the master, despite being given the opportunity to do so. However, in light of the circumstances of this case, the exceptions filed to the master’s decision, and appellee’s failure to raise a waiver issue, we shall consider the substance of appellant’s arguments with respect to her assertions of duress exercised by her trial counsel.

Appellant’s first argument is that the trial court committed error by failing to give adequate consideration to her exceptions to the master’s findings and recommendations. She argues that the court was required to hold a full evidentiary hearing to determine if the settlement agreement was valid, and that the court failed to consider her allegations with respect to duress exercised by her attorney.

On the record before us, it appears that the court adequately considered Ms. Durairaj’s claims that her trial counsel exercised duress in encouraging her to enter the settlement agreement. During the hearing on the exceptions, Ms. Durairaj was permitted to testify extensively as to the alleged duress.

Appellant argues that the trial court erred because it failed to find, as a matter of law, that her trial counsel’s alleged behavior constituted duress. She urges that, because an attorney owes his client a duty of good faith and fair dealing, her former counsel’s alleged actions of urging the terms of settlement on her, and threatening to withdraw his appearance, constituted duress, requiring this Court to set aside the trial court’s acceptance of the report and recommendations of the master.

The party seeking to void a contract because of duress bears the burden of proving the contract was entered into under duress. Thus, Ms. Durairaj must prove: (1) coercion, (2) her loss of the ability to act independently, and (3) her entry into the contract. Further, she must show that Mr. Durairaj was aware of the duress and took advantage of it.

In ruling on appellant’s exceptions, the trial court [found] that Ms. Durairaj had not proven the first and second elements of her case of duress.

Given the extensive evidence in the record that the agreement was voluntary, the denial of appellant’s exceptions was not an abuse of discretion.” Slip op. at various pages, citations and footnotes omitted.

An error by a master referencing an incorrect court rule in a letter addressing obtaining a transcript of the master’s hearing did not warrant reversal of a child support decision. “In her letter to the parties accompanying her ‘Report and Recommendations,’ the master stated that any excepting party would have to order a transcript from the court reporter at the time exceptions were filed. The master cited Rule 9-207 in support. In fact, the applicable rule is Rule 9-208, not Rule 9-207.

On appeal, Gorrell contends that the erroneous citation in the master’s letter warrants reversal of the circuit court’s child support decision, which followed its dismissal of Gorrell’s exceptions for failure to order a transcript.

Gorrell cannot claim ignorance of the law in explanation of his failure to order a transcript as required by Rules 2-541(g) and 9-208(g). Every man is presumed to know the law.

The incorrect references in the master’s letter did not change the presumption that Gorrell knew the law.

The reference to the wrong rule in the master’s letter could not have misled Gorrell, given that the letter communicated the substance of the correct rules: that, if Gorrell filed exceptions, at the time of doing so, he was required to order a transcript directly from the court.” Slip op. at various pages, citations and footnotes omitted.

A 1992 child support order was not, for purposes of imposing child support arrears, superseded by a 1993 order of absolute divorce, as both were separate final judgments in different cases. Moreover, the Circuit Court for Baltimore City did not err in refusing to modify the original child support award (a monthly sum for two minor children) when the eldest child reached the age of majority. “Terence Leonard appeals the order of the Circuit Court for Baltimore City that found him, as of December 23, 2002, in child support arrears in the amount of $20,494.55.

The parties separated in June of 1991, and on November 7, 1991, wife filed a complaint for child support. On March 31, 1992, the Circuit Court for Baltimore City ordered Husband to pay Wife $135 weekly ‘for the support of the minor children of the parties.’

The parties were divorced on December 1, 1993.

On August 15, 2002, Wife filed a petition for contempt for failure to pay child support.

Husband contends that the circuit court erred in relying on the earlier child support order when imposing child support arrears, because
the divorce judgment ‘is the last statement in this case on the amount of child support to be paid by [Husband]’. The divorce judgment in this case provides that ‘[Husband] shall be chargeable generally for the support and maintenance of said children.’ Because the divorce judgment was filed later in time and has the ‘same case number as the child support order’ Husband argued that the ‘divorce judgment supercedes the child support order.’

We are not persuaded. First, the child support order and the divorce order are separate final judgments in two different cases. The child support order was filed on March 24, 1992, under the case number 91311053/CE139877. The absolute divorce order, filed one-and-a half years later, on December 1, 1993, was filed under the case number 93133008/CE164658. Moreover, the complaint for absolute divorce did not even reference the child support order or request modification thereof. The child support order was not superceded by the divorce judgment and is a final judgment.

Husband argues that he should not be responsible for child support payments for two children. He explains that his daughter [reached] the age of majority on December 27, 1997, and thus, the child support order should have been modified on that date.

The child support order provided, in pertinent part, that ‘Terence Leonard shall pay the weekly sum of $135.00 for the support of the minor children of the parties.’

The circuit court found that the wording of the child support order obligated him to pay $135 in child support until both of his children reached the age of majority.

In Becker v. Becker, 39 Md. App. 630[,] we cited to 2 Nelson, Divorce and Annulment, § 14.91 at 127-28 (2nd ed. 1961) for the general rule.

In the absence of an agreement providing otherwise, the allowance for support of a child is ordinarily limited to his or her minority. However, where one monthly sum is awarded for support of several minor children during their minority, it will be considered as providing monthly payments of such sums until the youngest child has attained his majority.

[A] material change in circumstances justifying a modification of child support does not automatically arise when the eldest child reaches the age of majority.

The circuit court did not err in refusing to modify the original child support award.” Slip op. at various pages, citations and footnotes omitted.

The Circuit Court for Anne Arundel County was not obligated to adjust the computation of a husband’s child support obligation when it reassessed the wife’s yearly income from $24,000 to $30,000 since the monthly income of the parties in either situation exceeded $10,000 per month and was therefore outside the child support guidelines. The judge erred, however, in failing to explain why he set a child support obligation that was lower than the maximum support obligation in the guidelines. “Appellant argues that, when the trial court reassessed appellee’s yearly income from $24,000 to $30,000 in its December 26, 2002 Order amending the original divorce decree, the trial court was obligated to adjust the computation of appellant’s child support obligation according to the child support guidelines (Guidelines). Appellee responds that the trial court was not required to recalculate appellant’s child support obligation because, irrespective of the trial court’s adjustment of appellee’s income, the parties’ monthly income fell outside of the Guidelines. Therefore, pursuant to F.L. §12-204(d), the trial judge was not obligated to follow the Guidelines but only required to exercise his discretion.

The trial court, upon consideration of the amount of child support, is required to use the Guidelines set forth in F.L. § 12-204.

However, in the event that the combined adjusted actual income for both spouses exceeds $10,000 per month, the Guidelines do not apply and it is within the trial judge’s discretion as to the amount of child support to be awarded.

Appellant’s primary argument that the trial judge was required, in his Order dated December 26, 2002, to modify his original child support obligation after appellee’s adjusted actual income was re-calculated to $30,000 is without merit. Regardless of whether appellee’s adjusted actual income was originally $24,000 or $30,000, the combined adjusted actual income of both appellant and appellee exceeds $10,000 in either case. Thus, the trial judge was not obligated to utilize the Guidelines but, rather, could exercise discretion in readjusting appellant’s child support obligation. The absence of any language changing the child support award in the trial judge’s December 2002 order leads to the reasonable inference that the trial judge, within his discretion, decided that a reassessment of appellant’s child support obligation was unnecessary.

More problematic, however, is the trial judge’s failure to explain why he set a basic child support obligation lower than the maximum support obligation in the Guidelines. Specifically, the trial judge determined that the basic child support obligation was $1,608 per month, which was eight dollars less than the maximum Guidelines amount of $1,616.

[D]espite the trial court’s statutory discretion in above-guidelines situations, an award lower than the maximum Guidelines amount require[s] the trial court to ‘fully explain the reasoning for its decision as to the amount of child support.’ Here, the trial judge did not offer any explanation as to why he set the basic child support amount lower than $1,616.” Slip op. at various pages, citations and footnotes omitted.

A husband’s brief return to his marital home in Maryland in March 2002, after having moved to Hawaii in August 2000, did not interrupt the continuous 12-month period necessary for a court to award the wife an absolute divorce on the ground of desertion. Also, the trial court did not fail to determine the parties’ marital property within the ninety-day period after granting the absolute divorce. “Fred contends that the trial court erred in awarding Huonglien an absolute divorce on the ground of desertion. Specifically, he argues that the evidence that he returned to the parties’ home in early March of 2002 precluded a finding that the desertion had continued for an
uninterrupted 12-month period, as required by [section] 7-103 of the Family Law Article, and instead showed that he was ‘ousted’ from the home by Huonglien.

FL section 7-103(a)(2) provides that the court may decree an absolute divorce on the ground of desertion if: ‘the desertion has continued for 12 months without interruption before the filing of the application for divorce; (ii) the desertion is deliberate and final; and (iii) there is no reasonable expectation of reconciliation.’

The evidence adduced at trial showed that Fred left the parties’ Greenbelt home in August of 2000 and went to live in Hawaii. While in Hawaii, Fred signed a one-year lease on an apartment that ran from September 10, 2000 to September 9, 2001. Fred remained in Hawaii from August of 2000 until he returned to Maryland in April of 2001 and resumed living in the parties’ Greenbelt home.

Fred again went to Hawaii in August of 2001 and did not communicate with Huonglien until he returned to Maryland in November of 2001.

Upon returning to Maryland, Fred stayed at a nearby hotel and on November 10, 2001, went to the parties’ home with his nephew to ‘move some stuff out of the house.’ Thereafter, Fred again returned to Hawaii.

Fred returned to Maryland in early March of 2002 and attempted to gain entry to the parties’ home. He was unable to enter the home because Huonglien had changed the locks.

On the basis of this evidence, the trial court found that Fred deserted Huonglien in August of 2001.

We find no merit in Fred’s argument that his return to the parties’ Greenbelt home in March of 2002 interrupted the continuous 12-month period necessary for a court to award an absolute divorce on the ground of desertion, and showed that he was ousted from the parties’ home.

Irrespective of Fred’s physical return to the parties’ home, there was no evidence that he attempted to reconcile his marriage to Huonglien.

In contrast, Fred testified at trial that he made no attempt at reconciliation after November of 2001.

The evidence at trial showed that Fred had returned to the parties’ house on November 10, 2001, to take property from it. The court could have reasonably inferred that Fred’s March 2002 return to the parties’ home simply was another attempt on his part to remove items from the home. Moreover, the court reasonably could have found that Huonglien’s actions in changing the locks on the house were not taken to ‘oust’ Fred but to protect against Fred’s removing additional property from the home.

Fred contends the trial court erred in failing to determine the parties’ marital property within the required ninety day period after granting them an absolute divorce. He argues that because the court’s final Amended and Revised Opinion and Order of Court was not entered on the docket until April 3, 2003, ninety-eight days after the Judgment of Absolute Divorce was entered on the docket, the court was without jurisdiction to determine the parties’ marital property.

In this case, the Judgment of Absolute Divorce was entered on the docket on December 26, 2002.

On February 21, 2003, the court issued an Opinion and Order of Court which, among other things, determined the parties’ marital property and provided for its disposition. That order was entered on the docket on February 26, 2003, less than ninety days from the date the judgment of divorce was entered.

The amended opinion and order, as noted above, was entered on the docket on April 3, 2003.” Slip op. at various pages, citations and footnotes omitted.

The Circuit Court for Anne Arundel County erred in crediting, for purposes of alimony pendente lite, the wife with expenses of 1) health insurance, 2) savings for a new car, and 3) an IRA contribution. The court did not err in awarding attorney’s fees to the wife. “The pendente lite hearing was conducted on October 21 and 29, 2002. The court filed a written memorandum and order on November 14, 2002, providing: [pendente] lite alimony in the amount of $7,200 per month [and] payment of attorney’s fees in the amount of $50,000, to be paid into the court’s registry by husband.

The trial court based its determination of the pendente lite alimony award on a finding that husband had income of $270,000 annually.

Husband argues that the trial court’s determination of his income was not supported by the evidence, especially since he had testified that his income from the law practice fluctuates widely each year.

[There is] ample evidence from which the court could have reached its conclusion.

The trial court had discretion to consider both current and past income when determining an award of support. Here, the court considered income from prior years, from the year immediately preceding the hearing, current income records, and admissions included in the pleadings and in discovery. While we recognize that, at a trial on the merits, there may be a need for a more in-depth review of the income side of the equation, we find on the record before us no error in the court’s calculation of husband’s income for pendente lite purposes.

Husband urges us to find that the court erroneously considered his distributive share from Woodstock Investments, LLC in its calculations, while not considering wife’s distributive share.

We cannot find in the record any imbalance in the court’s consideration of the respective distributive shares of the parties from Woodstock Investments.

Husband argues that the trial court erred in crediting wife with certain expenses listed in her revised financial statement.

Among the monthly expenses claimed by her in establishing her entitlement to pendente lite alimony were: $450 for health insurance; $600 savings for a new car; $167 IRA contribution; and $1,000 for payment of Federal and Maryland income taxes on the anticipated taxable alimony award.

Because pendente lite alimony is for the purpose of maintaining the status quo for the dependent spouse, those expenses to be considered in reaching a fair award must be limited to those presently being incurred (or those which might reasonably be expected to be incurred before a final adjudication of the divorce) as a result of the breakdown of the marriage.

The record does not support a finding that wife is in immediate danger of losing her health care coverage, which is being provided by husband.

Should that coverage be denied her following a judgment of absolute divorce, she will be entitled to include her cost of fair coverage in her claim for alimony, be it rehabilitative or indefinite.

We take the same position with respect to the ‘savings’ for the anticipated purchase of a new automobile. The record is devoid of evidence that [the] wife would need to purchase a vehicle.

Wife also included, as a monthly expense, a $167 contribution to a
n IRA[.] We note that wife is not now [employed] and does not make a current retirement account contribution. Hence, we find error in the consideration of that amount in the calculation of the pendente lite alimony award.

Even should wife remain unemployed, she will incur income tax liability as a result of the receipt of alimony. Hence, we do not agree with husband that the court committed error by consideration of that anticipated expense.

Therefore, we shall vacate the pendente lite alimony award[.]

[Appellant] asserts error on the part of the trial court for awarding counsel fees to wife[.]

There can be no dispute that this is a case in which an award of attorney’s fees will be appropriate.

At the time of the hearing wife had no income (and had not had income for nearly four years) other than that provided by husband.

Here, the court essentially made a determination at the preliminary stages of the litigation that fees and suit money would be appropriate. We find no error in that conclusion.” Slip op. at various pages, citations and footnotes omitted.

The Circuit Court for Prince George’s County did not err in failing to find that the parties in a divorce action had waived their rights to each other’s pension and retirement benefits; in calculating the percentage of the husband’s pension and benefits to be granted to the wife; in finding that the wife did not dissipate funds from her 401(k) plan; or in including outstanding loans when calculating the value of the plans. “The Judgment of Absolute Divorce [provided] that appellee should receive a percentage of appellant’s pension and retirement plan [and] that appellant should receive a portion of appellee’s 401(k) retirement plan.

Appellant first contends that the trial court erred by failing to consider or find that the parties had a verbal agreement that waived their rights to each other’s retirement benefits. He argues that [a] verbal agreement between the parties, dealing with the distribution of marital property, was totally inclusive and therefore that all issues of marital property were addressed prior to trial.

The trial judge considered appellant’s testimony and appellee’s testimony and made a definitive determination that the pension and retirement plans were not part of the agreement. The judge’s conclusion was based, principally, on the finding that appellant never considered the retirement benefits and, therefore, did not include the benefits in the agreement.

Because the court found that the retirement benefits were not part of the verbal agreement and that the parties were unaware of that right when negotiating the agreement, there was no need for the court to explicitly reach the issue of waiver. The parties could not have waived their rights to the retirement benefits if there were unaware of that right. Waiver is the ‘intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right, and may result from an express agreement or be inferred from circumstances.’

Appellant also argues that the trial judge erred in calculating what percentage of his federal pension should be awarded to appellee. According to appellant, the court did not employ the Bangs formula, which requires the use of a fraction, with the numerator equal to the total years of marriage and the denominator equal to the total years of employment. Because appellant had not yet retired, the total years of employment was unknown and, therefore, he contends that the lower court erred in determining the denominator. Furthermore, appellant asserts that he intends to retire in three years and that the court’s award will consequently give appellee the benefit of three additional years.

‘The Bangs formula is to be used in situations in which, at the time of divorce, the employee-spouse has been employed for a period of time greater than the length of the marriage and thus, a portion of the pension was earned outside of the marriage.’

It is clear from the record that the trial court was applying the Bangs formula. The determinative issue is whether the court properly used the retirement date indicated in appellant’s testimony when calculating the denominator used in the Bangs formula. ‘The amount of the as, if and when payment, however, cannot be determined until appellant retires…and the number of years of total employment is known.

[E]vidence indicating a plan or intention to retire can be determinative when assessing the length of a pension.

[A]ppellant testified that he would retire in March 2003.

We hold that [this] testimony allowed the trial judge to determine the total years of employment for purposes of the Bangs formula.

Appellant contends that the trial judge erred in finding that the $12,000 was not a dissipation of appellee’s 401(k) plan.

The judge concluded that appellee [instead] transferred the $12,000 into the 401(k) with her new employer.

[W]e affirm the trial judge’s factual finding.

The last issue raised by appellant deals with the trial judge’s decision to include the parties’ loans into the value of their retirement plans.

The lower court [found] that the loans acted like a dissipation because the parties unfairly borrowed down the balances of their retirement plans so there would be less to distribute.

Therefore, we hold that the trial judge did not err by adding the loans to the value of the retirement plans.” Slip op. at various pages, citations and footnotes omitted.

The Circuit Court for Carroll County did not err in awarding physical custody of a couple’s four-year-old daughter to her mother or in entering a monetary award of approximately $166,000 against the husband; however, the appellate court was unable to determine how the circuit court concluded, for child support purposes, that the husband/father’s income was $51,086.. Also, the court erred in terminating the mother’s child support obligation with respect to the couple’s son on the child’s eighteenth birthday in December 2002, when he would not graduate from high school until June 2003. “In challenging the trial court’s determination, Mr. Swope seek
s ‘custody of Marissa with liberal visitation to [Mrs. Swope] or in the alternative, shared custody of Marissa.’

In awarding physical custody of Marissa to her mother, the court explained that Mrs. Swope had always been Marissa’s primary caregiver.

In determining custody, the trial court must consider factors including, but not limited to, the following:

‘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….

Trial courts are afforded wide discretion in custody determinations in large part because of the complex nature of the determination.

Under this highly deferential standard, we have no hesitancy in affirming the award of sole physical custody of Marissa to Mrs. Swope. Further, the circuit court’s concern about the parties’ ability to communicate supports the denial of shared legal custody.

The circuit court entered a monetary award in favor of Mrs. Swope against Mr. Swope in the amount of $165,939. The award was computed on the values of four types of marital property: Jewelry, $2,000; Hagerstown Investment Properties, $43,960; Marital Home, $87,750; Intangible Property, $32,229[.]

Mr. Swope mounts a multi-faceted attack on each element of the monetary award.

When it was known to both parties that court officers were on the way to the marital home to put Mr. Swope out, he asked to use the bathroom. After he had been removed from the house, Mrs. Swope noticed that her jewelry was missing.

Mr. Swope denied knowing where the jewelry was. The court resolved this credibility issue against Mr. Swope.

Mr. Swope maintains that the Hagerstown properties are exclusively nonmarital, contending that the sole source of funds for the payment of the mortgages during the marriage was nonmarital property, namely, income from the Hagerstown properties themselves. Mr. Swope’s theory is valid, but his proof fails.

Mr. Swope challenges the valuation of the marital home and the equitable adjustment. He further contends that the court erred in failing to order contribution in the amount of $14,300 from Mrs. Swope to him for his expenses in maintaining the marital home during his use and possession.

The thrust of his argument is that the equitable adjustment of sixty-five percent of the home’s value to Mrs. Swope is punitive. Under FL § 8-205(4) and (11) the circuit court is to consider the circumstances contributing to the estrangement and any other factors that bear on fairness and equity. The circuit court had a broad discretion to give these factors the weight that it deemed to be appropriate.

We perceive no abuse of discretion in the circuit court’s application of the FL § 8-205 factors[.]

Nor did the trial court abuse its discretion in refusing to order [contribution] by Mrs. Swope[.]

Based on the Maryland Child Support Guidelines, the trial court calculated Mr. Swope’s child support obligation to Mrs. Swope for Marissa to be $313 per month until Ryan’s eighteenth birthday and $549 per month thereafter.

We are unable to reconcile with the evidence the court’s finding that Mr. Swope’s annual income was $51,086.

In addition, Mr. Swope contends that the court erred in terminating Mrs. Swope’s obligation to pay child support for Ryan on December 25, 2002, Ryan’s eighteenth birthday, when Ryan would not graduate from high school until June of 2003. We agree.” Slip op. at various pages, citations and footnotes omitted.

The Circuit Court erred in denying a putative father’s motion to waive the costs of paternity testing without making any evidentiary findings respecting whether he was in fact indigent. “In February, 1991, as part of a consent paternity decree entered by the Circuit Court for Baltimore City, Timothy Wiggins, appellant, was ordered to pay child support for a minor child born to Terri Griner, appellee. On February 11, 2002, appellant filed a motion to modify child support in circuit court, asking the court to order genetic testing to determine whether appellant is in fact the father of the child he had been ordered to support. The trial court ordered the testing, but required appellant to pay for the testing ‘up front.’

According to appellant, he was unable to pay for the paternity test. He filed a motion for waiver of paternity testing costs on November 14, 2002, pursuant to Md. Code § 5-1029(h)(2) of the Family Law Article. Section 5-1029(h)(2) provides that “[i]f any party chargeable with the cost of the blood or genetic test…is indigent, the cost of the blood or genetic test shall be borne by the county where the proceeding is pending…” in this case, Baltimore City. Appellant attached a request for waiver of prepayment to his motion for waiver, stating that he was indigent.

Appellant contends that the circuit court erred in failing to grant his motion to waive paternity testing costs. First, appellant argues the trial court violated § 5-1029(h)(2) in failing to grant appellant’s motion on the grounds of his indigency. Second, appellant argues, the trial court abused its discretion in denying without holding a hearing and without any evidence indicating that appellant was not indigent.

Although appellant was declared the father of appellee’s child through a consent decree in 1991, Maryland law clearly provides that “[a] declaration of paternity may be modified or set aside:…(2) if a blood or genetic test done in accordance with § 5-1029 of this subtitle establishes the exclusion of the individual named as the father in the order.”

Therefore, the fact that appellant was initially established as the father of appellee’s child does not now preclude him from challenging that declaration and requesting genetic testing.

The language of [§ 5-1029] clearly provides that, if a person is indigent, the costs of genetic testing shall be borne by the county where the proceeding is pending.

The circuit court in the instant case denied appellant’s motion without making any evidentiary findings with respect to whether appellant is indigent. Appellant submitted, under penalty of perjury, evidence of his indigency in the form of his request for waiver statement and a financial statement. Nevertheless, the court denied his requests without explanation.

The circuit court should have clearly indicated whether it determined that appellant was indigent and explained its findings. As an appellate court, we are not permitted to make factual findings regarding whether appellant is indigent. We vacate the circuit court’s denial of appellant’s motion and remand for a determination of ind
igency.” Slip op. at various pages, citations and footnotes omitted.

The Circuit Court for Prince George’s County did not err in denying a motion for reconsideration in a divorce action where a consent order was entered that did not contain a provision about tax debt agreed upon earlier by the parties. The failure to include a provision reflecting the agreement was an oversight by counsel, not a clerical error subject to revision under Maryland Rule 2-535(d). “The parties, Sally Williams, appellant, and Franklin M. Williams, appellee, obtained an absolute divorce on 8 June 2001. On 1 October 2001, a hearing was held in the Circuit Court for Prince George’s County on various disputes about property. During the course of the hearing, the parties reached a settlement agreement, which was recited on the record. Counsel for appellant stated that appellee ‘will continue to pay the 1997 tax debt.’

A consent order dated 1 November 2001 was signed by counsel for both parties and the judge. The consent order did not contain any provision relating to tax debts.

On or about 17 April 2002, appellant filed a motion for reconsideration in which she asserted that the consent order did not conform with the settlement agreement read on the record at the hearing on 1 October 2001. She requested that the consent order be amended to include a provision that appellee pay and satisfy the parties’ 1997 income tax debt. Appellee opposed the motion for reconsideration on the ground that the agreement regarding tax debt pertained only to the parties’ State tax debt and that he had never paid, or agreed to pay, the 1997 Federal tax debt.

[T]he circuit court denied the motion for reconsideration. This appeal followed.

In this case, appellant argues that the failure to include in the consient order a provision reflecting the parties’ agreement regarding tax debt was a clerical error that is subject to revision under Rule 2-535(d). We disagree. The error at issue was an oversight by counsel, not a clerical mistake as contemplated by Rule 2-535(d).

Although we have not had the opportunity to address previously the issue of whether an order may be reviewed under Rule 2-535(d) due to error on the part of counsel, Maryland’s appellate courts have determined that inadvertent, careless, and negligent acts of counsel do not constitute mistakes under 2-535(b) so as to allow a court to strike an enrolled judgment.

The failure to include in the consent order the language found in the transcript relating to tax debt was an error on the part of counsel. That error does not constitute the type of mistake contemplated by Rule 2-535(b) and, indeed, appellant does not contend that it does. It also does not, however, constitute a clerical mistake under Rule 2-535(d).

We find no error in the decision of the circuit court.” Slip op. at various pages, citations and footnotes omitted.