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Law Digest — 4th US Circuit, Md. Court of Special Appeals — May 5, 2022

U.S. Court of Appeals for the 4th Circuit

Arbitration; illusory promise: Where the employer retained the right to “change, abolish or modify existing policies, procedures or benefits applicable to employees as it may deem necessary with or without notice,” its motion to compel arbitration of wage and hour claims brought by former employees was denied because the agreement to arbitrate was illusory. Coady v. Nationwide Motor Sales Corp., No. 20-2302 (filed April 25, 2022).  

Criminal; mootness: Where the Supreme Court vacated this court’s prior opinion in light of another Supreme Court decision and remanded the case for further consideration, but the district court dismissed the indictment without prejudice in the interim, the appeal was dismissed. United States v. Green, No. No. 19-4348 (filed April 27, 2022).  

Employment Discrimination; prima facie case: Where the former employee of an educational program for at-risk adolescents alleged that he was treated differently than white employees, and included specific factual allegations of the differing conduct, that was sufficient to state a claim for race discrimination. Holloway v. State of Maryland, No. 20-1958 (filed April 25, 2022).  

Maryland Court of Special Appeals

Administrative; exhaustion of remedies: Where a state cannabis agency did not adopt regulations establishing an administrative remedy, the circuit court erred by holding an applicant for a medical cannabis processor license failed to exhaust its administrative remedies. Green Healthcare Solutions LLC v. Natalie M. LaPrade Maryland Medical Cannabis Commission, No. 766, Sept. Term, 2021 (filed April 28, 2022).  

Criminal; stalking: Where an individual sent numerous letters and emails to another individual, even after she obtained a peace order, and he knew or should have known that his communications were causing her emotional distress, his staking and harassment convictions were affirmed. Schiff v. State of Maryland, No. 725, Sept. Term, 2021 (filed April 27, 2022).  

Employment discrimination; retaliation: Where a healthcare worker alleged that she was terminated because she complained about a broken machine for patient treatment, but the record showed she was terminated for “seriously deficient work conduct,” including falsification of a patient’s medical record, her claim under the Maryland Health Care Worker Whistleblower Protection Act, or HCWWPA, failed as a matter of law. Romeka v. RadAmerica II LLC, No. 1207, Sept. Term, 2020 (filed April 27, 2022).

Family; discovery sanctions: Where the mother failed to respond to almost all of the father’s discovery requests, the circuit court did not err in imposing a rebuttable presumption that the minor’s interests would be best served by awarding the father sole legal custody. Kadish v. Kadish, No. 275, Sept. Term, 2021 (filed April 27, 2022).

U.S. Court of Appeals for the 4th Circuit

Arbitration

Illusory promise

BOTTOM LINE: Where the employer retained the right to “change, abolish or modify existing policies, procedures or benefits applicable to employees as it may deem necessary with or without notice,” its motion to compel arbitration of wage and hour claims brought by former employees was denied because the agreement to arbitrate was illusory.

CASE: Coady v. Nationwide Motor Sales Corp., No. 20-2302 (filed April 25, 2022) (Judges Wynn, Thacker, RUSHING).

FACTS: Former employees of Nationwide Motor Sales Corporation sued the company and its owners in district court, alleging fraudulent payment practices that reduced employees’ sales commissions and final paychecks. Nationwide moved to compel arbitration and to dismiss or stay the proceedings. In response the employees argued that the agreement is an illusory promise because Nationwide retains the right to change, abolish or modify the handbook’s policies, procedures and benefits. The district court agreed.

LAW: The court must first determine whether the document acknowledging receipt of the handbook is part of the arbitration agreement and should be considered with it when interpreting the agreement. The court concludes that it is. The fifth paragraph of the arbitration agreement incorporates the receipt. In operation, an employee signs the receipt to assent to the agreement. The receipt itself also specifically identifies the arbitration agreement as one of the handbook sections to which the receipt “specially” applies. The receipt therefore must be read in conjunction with the arbitration agreement.

Under Maryland law, a promise to arbitrate is illusory—and thus cannot constitute the consideration necessary to support a binding contract—if the employer reserves the right “to alter, amend, modify, or revoke the Arbitration Policy . . . at any time with or without notice.” The modification clause that is part of the acknowledgment receipt here reserves Nationwide’s ability to “change, abolish or modify existing policies, procedures or benefits applicable to employees as it may deem necessary with or without notice.”

Nationwide argues that the clause does not apply because it refers only to “policies, procedures or benefits,” not “agreements.” Considering the plain meaning of the acknowledgement receipt “as a whole,” the modification clause applies to the arbitration agreement.

As an initial matter, the arbitration agreement and five other sections of the handbook are specifically listed in the receipt immediately above the paragraph containing the clause. Further, the receipt states that the handbook is a “reference source regarding personnel policies, procedures and company benefits,” the very things Nationwide then retains the right to modify. The receipt refers to the contents of the handbook collectively, without excepting “agreements,” and the court sees no reason to interpret the modification clause differently.

The handbook does not, for example, title each of its provisions as a “policy,” “procedure,” “benefit” or “agreement”—most provisions are labeled only by topic, such as “Large Cash Transactions.” Nationwide’s argument therefore places more weight on supposed distinctions among those labels than the plain language of the receipt will support. The better reading of the receipt is that “personnel policies, procedures and company benefits” encompasses all sections of the handbook, including those “specially” acknowledged in the receipt, like the arbitration agreement. Because the modification clause gives Nationwide the right to change or abolish those policies, procedures and benefits without notice, the arbitration agreement is illusory under Maryland law.

Affirmed.

Criminal

Mootness

BOTTOM LINE: Where the Supreme Court vacated this court’s prior opinion in light of another Supreme Court decision and remanded the case for further consideration, but the district court dismissed the indictment without prejudice in the interim, the appeal was dismissed.

CASE: United States v. Green, No. No. 19-4348 (filed April 27, 2022) (Judges GREGORY, Wynn, Harris).

FACTS: This matter returns to this court from the Supreme Court, which vacated the judgment of this court and remanded the case for further consideration in light of its  decision in Greer v. United States, 141 S. Ct. 2090 (2021).

LAW: Because the judgment of this court has been vacated and the district court dismissed the underlying indictment without prejudice on Dec. 21, 2020, there is no further appeal for this court to consider.

Appeal dismissed.

Employment discrimination

Prima facie case

BOTTOM LINE: Where the former employee of an educational program for at-risk adolescents alleged that he was treated differently than white employees, and included specific factual allegations of the differing conduct, that was sufficient to state a claim for race discrimination.

CASE: Holloway v. State of Maryland, No. 20-1958 (filed April 25, 2022) (Judges Motz, Quattlebaum, RUSHING).

FACTS: Charles Holloway sued his former employer, the Maryland Military Department, and related entities Freestate Challenge Academy and the State of Maryland, alleging that they discriminated against him on the basis of race in violation of Title VII of the Civil Rights Act of 1964. The district court dismissed Holloway’s complaint for failure to state a claim.

Regarding unlawful termination, the district court concluded that Holloway had “failed to plead a prima facie case of discrimination” because his complaint did not plead facts showing that his work was satisfactory to his employer or that any proffered comparators were similarly situated to Holloway and treated more favorably.

The court dismissed the hostile-work-environment claim because the allegations were not “severe or pervasive” enough to state a plausible claim. As for retaliation, the district court concluded that Holloway failed to allege a causal link between his EEO complaints and his termination, given that he was terminated “well over six months after his first EEO complaint and nearly three months after his last EEO complaint.”

LAW: It has long been the rule that “an employment discrimination plaintiff need not plead a prima facie case of discrimination” under the evidentiary framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to withstand a motion to dismiss. The district court therefore erred in requiring Holloway to plead facts establishing a prima facie case of discrimination.

To state a claim for unlawful termination, a Title VII plaintiff must allege facts sufficient to raise a plausible inference that his employer discharged him because of his race. In his complaint, Holloway alleged that defendants terminated him for the stated reasons of budget mismanagement and low enrollment but that those reasons were a pretext for racial discrimination.

Holloway alleged three important facts in support: (1) John Nickerson, who was white, was the person actually responsible for budget oversight but did not receive any adverse performance evaluation or disciplinary sanction for the alleged budget mismanagement; (2) Holloway’s predecessor, Charles Rose, who was white, was not disciplined for multiple years of low enrollment and (3) defendants contravened their own human resources policy by not giving Holloway an opportunity to enter into a performance improvement plan before terminating him.

Holloway also alleged that Nicholas Pindale, who possessed the authority to fire employees, refused to communicate directly with Holloway as he did with white directors but instead required Holloway to communicate with Princess Neal Washington, who is black. These facts are sufficient to raise the inference of a Title VII violation “above a speculative level.”

Turning next to Holloway’s claim of retaliation, the district court held that Holloway failed to plead facts supporting a causal connection between his EEO complaints and his termination. Holloway’s complaint alleges that he submitted three EEO complaints, the last of which he filed almost three months before he was terminated. But in some cases, intervening events can bridge what would otherwise be a prohibitively long temporal gap.

Here, Holloway has alleged that, during their early morning meeting in June, Jeffrey Teller “exclaimed” that he was aware of Holloway’s EEO complaint against Pindale and that Teller “would be involved.” This intervening comment by Holloway’s supervisor, taken as true, tempers the temporal gap between Holloway’s last EEO complaint and his termination. Considering the timing, Teller’s intervening statement and the previously identified allegations of pretext together, Holloway has alleged facts supporting a plausible inference that he was terminated “because” of his protected activity.

Turning last to Holloway’s claim that he was subjected to an abusive or hostile work environment based on his race or protected activity, Holloway’s complaint falls considerably short of alleging an abusive working environment. Evaluation and criticism of one’s work performance, while perhaps unpleasant, is not abusive. Nor can failure to praise support a hostile work environment claim. And the court rejects Holloway’s contention that one episode of yelling and pounding the table, even considered with his other allegations, is sufficiently severe or pervasive to establish an abusive environment.

Affirmed in part, reversed in part and remanded.

Maryland Court of Special Appeals

Administrative

Exhaustion of remedies

BOTTOM LINE: Where a state cannabis agency did not adopt regulations establishing an administrative remedy, the circuit court erred by holding an applicant for a medical cannabis processor license failed to exhaust its administrative remedies.

CASE: Green Healthcare Solutions LLC v. Natalie M. LaPrade Maryland Medical Cannabis Commission, No. 766, Sept. Term, 2021 (filed April 28, 2022) (Judges GRAEFF, Nazarian, Eyler).

FACTS:  Green Healthcare Solutions LLC, or GHS, appeals from the order issued by the Circuit Court for Anne Arundel County dismissing its petition for a writ of mandamus, or in the alternative, for a declaratory judgment. The petition requested that the court order that the Natalie M. LaPrade Medical Cannabis Commission award stage-one preapproval of GHS’s application for a medical cannabis processor license.

LAW: GHS argues that the circuit court erred in dismissing the petition on the ground that GHS failed to exhaust its administrative remedies, asserting that the commission’s enabling statute did not explicitly provide for an administrative remedy for an unsuccessful licensure applicant, and GHS could not “be required to adhere to an ad hoc remedy created at the Commission’s leisure with neither the authority to do so conferred by the legislature nor the procedure established by the Commission’s regulations.”

The parties acknowledge, as they must, that there is no explicit statutory language providing an administrative remedy for an unsuccessful applicant for a grower or processor license. The circuit court found, however, and the commission argues on appeal, that the commission had the implied authority to establish an administrative remedy for highly-ranked, unsuccessful grower and processor applicants.

Based on the broad authority that the General Assembly gave to the commission to regulate the medical cannabis industry, it had implied authority to set up an administrative process for high-ranking applicants to challenge the denial of a grower or processor license. Thus, the commission could have adopted regulations to provide for such a remedy. If the commission had adopted such an administrative remedy by regulation, it could have created an exhaustion requirement for that administrative remedy.

At oral argument, counsel for the commission conceded, appropriately, that the commission did not enact a regulation providing for an administrative remedy for unsuccessful applicants for a processor license. It merely advised, in a letter, that GHS could seek an administrative hearing to contest the commission’s decision, citing two regulations that did not apply to the commission’s denial of a processor license application. Because there was no administrative review remedy authorized by statute or an administrative scheme providing for such relief, there was no exhaustion requirement, and the circuit court erred in finding that GHS’s petition should be dismissed for failure to exhaust administrative remedies.

GHS next contends that the “circuit court erred when it dismissed GHS’s petition for administrative mandamus” on the ground that it failed to state a claim for which relief could be granted. The circuit court here found that administrative mandamus did not lie because there was an available administrative process.

As explained, however, the critical issue in determining whether administrative mandamus was an available remedy was not whether there was some type of administrative review offered, but rather, whether judicial review of the commission’s action was expressly authorized by law. Because the circuit court misapplied the law in this regard, the circuit court’s ruling is vacated and remanded for further proceedings to determine whether the requirements for administrative mandamus have been satisfied.

Judgment of the Circuit Court for Anne Arundel County vacated and remanded.

Criminal

Stalking

BOTTOM LINE: Where an individual sent numerous letters and emails to another individual, even after she obtained a peace order, and he knew or should have known that his communications were causing her emotional distress, his staking and harassment convictions were affirmed.

CASE: Schiff v. State of Maryland, No. 725, Sept. Term, 2021 (filed April 27, 2022) (Judges WELLS, Shaw, Harrell).

FACTS: Several years ago, an Assistant State’s Attorney with the Montgomery County State’s Attorney’s Office secured a stalking conviction against Graham Schiff. For the two years following that trial, Schiff sent a total of eight letters or e-mails directly to that attorney or to others professionally connected to her. Each correspondence detailed Schiff’s amorous feelings for that assistant state’s attorney, who wanted no contact with Schiff. A jury convicted Schiff of stalking and harassing that attorney.

LAW: Schiff contends there was insufficient evidence to sustain his stalking conviction, since (1) he did not engage in any threatening conduct; (2) he did not intend for his communications to cause the assistant state’s attorney serious emotional distress and (3) his communications did not constitute a “malicious, persistent pattern of conduct showing continuity of purpose.”

Schiff’s argument that he did not engage in any threatening conduct is misplaced. While Maryland Code Annotated, Criminal Law Article, or CR, § 3-802 (a)(1) requires that the conduct create a reasonable fear of some physical harm, CR § 3-802(a)(2)—the subsection of the statute the jury was provided in Schiff’s case contains no such requirement. It requires only that an accused know or should know the malicious course of conduct will cause another person serious emotional distress.

The distress reasonably caused by the malicious course of conduct in CR § 3-802(a)(2) need not result from express physical threats—or even any type of express threat. This is unambiguous from the statute’s plain language, and is further borne out in the statutory history. The court is further persuaded by this interpretation after reviewing other jurisdictions’ similarly worded statutes that do not require any type of express threat or assaultive conduct to satisfy an “emotional distress” element.

Here, a rational factfinder could have inferred that Schiff knew his communications were causing the assistant state’s attorney serious emotional distress, based on several statements in his letters that acknowledged that she might feel threatened or scared by

him and apologized for his communications. Further, a rational factfinder could have found that a reasonable person in Schiff’s position would have known his communications would cause the assistant state’s attorney serious emotional distress.

The court also concludes that a rational factfinder could infer that Schiff should have known that his communications would be shared with the assistant state’s attorney because they were addressed to persons who regularly encountered her at work. The plain language of CR § 3-802 does not require that communication or contact be made directly to the person being stalked.

A rational factfinder also could have found Schiff’s communications constituted a “malicious persistent pattern of conduct.” The court declines to read into the statutes a minimum number of contacts necessary to sustain a stalking or harassment conviction when the legislature has not chosen to do so and when the court can find no precedent for doing so. Further, the court declines Schiff’s request to read into the statute a minimum number of contacts because the words used in the statute, “persistent,” “pattern” and “series” have commonly understood meanings and thus are capable of being interpreted and applied by the trier of fact.

Schiff also asserts none of the elements of the harassment statute could have been found beyond a reasonable doubt in this case. The court disagrees. A factfinder could have inferred, at the very least, that Schiff had reason to know at the time of sending the July 17 e-mail that the assistant state’s attorney had taken steps to stop him from sending her any further communications, by obtaining a peace order. A rational factfinder also could infer that Schiff’s subsequent communication to one of the assistant state’s attorney’s colleagues, ignored the reasonable warning he had received to stop such conduct.

And while Schiff argues his communications cannot constitute harassment because each letter or e-mail contained some commentary on a legal matter, the court agrees with the state that merely because a piece of correspondence serves some legal purpose does not isolate all other parts of the correspondence from scrutiny. However the letters Schiff sent to the judges were not harassing because they were sufficiently removed from the assistant state’s attorney and although inappropriate, touched on legitimate legal issues which could be covered by the First Amendment.

The court further concludes that a rational factfinder could likely have inferred Schiff sent the July 17 and 18 communications with the “intent to harass, alarm, or annoy” the assistant state’s attorney. Finally Schiff’s challenged communications—perhaps with the exception of his letters to the judges, which we do not include in our bases for affirming the decisions below—are not protected under the First Amendment.

Judgment of the Circuit Court for Montgomery County affirmed.

Employment discrimination

Retaliation

BOTTOM LINE: Where a health care worker alleged that she was terminated because she complained about a broken machine for patient treatment, but the record showed she was terminated for “seriously deficient work conduct,” including falsification of a patient’s medical record, her claim under the Maryland Health Care Worker Whistleblower Protection Act, or HCWWPA, failed as a matter of law.

CASE: Romeka v. RadAmerica II LLC, No. 1207, Sept. Term, 2020 (filed April 27, 2022) (Judges Arthur, Leahy, EYLER).

FACTS: Bridget Romeka sued RadAmerica II LLC and other entities, alleging that she was terminated from employment in violation of the HCWWPA. The circuit court granted summary judgment to RadAmerica on the ground that Ms. Romeka’s termination from employment was not causally connected to her alleged protected disclosure. It also ruled that RadAmerica’s refusal to allow Ms. Romeka to resign immediately after she was fired was not actionable in a suit under the HCWWPA.

LAW: The standard of proof for causation in HCWWPA cases has not been addressed by any appellate court in a reported opinion. The critical causation language in the act prohibits an employer from taking or refusing to take “any personnel action as reprisal against an employee because the employee” made a protected disclosure (among other things). In the context of employment law, this is classic anti-retaliation language.

The McDonnell Douglas evidentiary framework applies to this case, for two reasons. First, it is a defense to an action under the act “that the personnel action was based on grounds other than the employee’s exercise of any rights protected under th[e Act].” This defense, on which the defendant bears the burden of proof, meshes with the McDonnell Douglas framework.

Second, in a case such as this, where there is no direct evidence that RadAmerica fired Ms. Romeka because she complained about it using a broken machine for patient treatment, retaliatory animus must be proven circumstantially, by reasonable inference. This is what the final, pretext stage of the McDonnell Douglas framework allows.

Ms. Romeka maintains that she only would need to prove that her May 17 protected disclosure to Mr. Osik about the use of the TrueBeam couch was a “motivating factor” in RadAmerica’s terminating her from employment; and that she has ample evidence that the reasons RadAmerica gave for terminating her employment were a pretext for retaliatory animus. But if retaliation for a protected disclosure only need be a motivating factor in discharging an employee whose substandard work is endangering patients, the employer would not be able to discharge the employee without facing liability. That result would defeat the health and safety purposes the act is meant to protect.

Turning to the merits, the court shall assume for purposes of this opinion that Ms. Romeka could make out a prima facie case of reprisal under the act. RadAmerica has submitted considerable evidence of seriously deficient work conduct by Ms. Romeka, including falsification of a patient’s medical record, that it maintains was the reason it terminated her from employment. Virtually all of that evidence consists of events that took place before the May 17 date on which Ms. Romeka made her protected disclosure.

Ms. Romeka argues that she can show pretext through evidence that RadAmerica has given various and inconsistent dates on which the decision to terminate her employment was made. But the dates Ms. Romeka argues are obfuscations by RadAmerica about when the decision to fire her was made are dates on which the various decisions that preceded the final decision, and were necessary to the final decision, were made. They were not a single date that RadAmerica repeatedly misidentified, nor were they inconsistent. Necessary decisions that led to Ms. Romeka’s termination were made on May 10, May 16 and May 18, and the termination was carried out on May 21. This is not sufficient to show pretext.

In the trial court, Ms. Romeka also argued that RadAmerica’s denial of her request to resign was unusual and itself was an adverse personnel action taken in retaliation for her protected disclosure under the act. But RadAmerica did not demand that she resign, which would be a personnel action taken against her. Rather, it fired her and she then asked to be allowed to resign instead. When she made that request, however, she was a fired, former employee of RadAmerica.

The refusal to allow an already-terminated employee to resign is not a personnel action within the protection of the act, as there is no longer an employment relationship when the refusal occurs. In effect, the terminated employee is asking the employer to rescind the termination decision and replace it with a resignation decision.

The evidence produced by RadAmerica showed that the severity of Ms. Romeka’s work deficiencies was such that its president decided to discharge her from employment. Ms. Romeka did not produce evidence to support a reasonable finding that she was fired for any reason other than those RadAmerica gave for firing her. Finally, even if Ms. Romeka still were considered an employee after she had been told she was fired, which she was not, she produced no evidence that not allowing her to resign was a retaliatory act tied to her May 17 complaint.

Judgment of the Circuit Court for Baltimore City affirmed.

Family

Discovery sanctions

BOTTOM LINE: Where the mother failed to respond to almost all of the father’s discovery requests, the circuit court did not err in imposing a rebuttable presumption that the minor’s interests would be best served by awarding the father sole legal custody.

CASE: Kadish v. Kadish, No. 275, Sept. Term, 2021 (filed April 27, 2022) (Judges Nazarian, LEAHY, Harrell).

FACTS: Miranda S. Kadish appeals from an order of the circuit court adjudicating several motions relating to the care of the parties’ child, S, in favor of Craig M. Kadish.

LAW: Mother contends that the court abused its discretion in two orders relating to mother’s responses to father’s discovery requests. First, mother asserts that the court abused its discretion in not giving Mother “an opportunity to serve answers to the requests to which she objected or to provide amended answers to the request to which she stated she could neither admit [n]or deny.” Second, mother argues that the court abused its discretion when the court issued its Dec. 3, 2020, order imposing a rebuttable presumption that S.’s best interests would be served by modification of the judgment to grant father primary physical custody and sole legal custody.

The court concludes that the discovery sanctions imposed by the circuit court in this child custody case were consistent with the Maryland Rules and this court’s decisional law. The circuit court did not err or abuse its discretion by its choice of sanctions because, rather than bar evidence that could bear directly on S.’s best interests, the court safeguarded S.’s “indefeasible right” to have her best interests fully considered.

The circuit court’s sanctions were permissible under the Maryland Rules and were not disproportionate to mother’s almost complete failure to produce any discovery. In fact, the sanctions were not the most severe that the trial court could have imposed under Maryland Rule 2-433.

During the time mother was ignoring discovery requests and defying the court’s orders, she did file her own offensive pleadings through her lawyer. And, the record indicates, she was able travel to Maryland and to Hawaii during the same span of times her deposition was noted. After giving mother multiple opportunities to comply with discovery, the judge imposed sanctions progressively as permitted under Maryland Rule 2-433.

A circuit court has the authority to impose a conclusive, un-rebuttable presumption of fact in favor of the party seeking discovery in an appropriate case Here, the circuit court imposed a lesser version of that sanction, and it did so in a way that was designed to ensure that it remained “as well-informed as possible” as to S.’s best interests. Rather than imposing a conclusive presumption as to S.’s best interests, the court imposed a rebuttable presumption that S.’s “best interests will be served by a modification of the Judgment . . . to grant [father] her primary physical custody and her sole legal custody.”

Mother presses that the court erred in imposing the rebuttable presumption because it shows “the court has already made a finding without the moving party proving its case,” thereby thwarting the court’s obligation to thoroughly examine all possible factors that impact S.’s best interests. The court is not persuaded. The trial judge expressly preserved mother’s ability to present “evidence directly bearing on the best interests of the minor child” in her orders imposing sanctions. At trial, and over father’s objections, the court permitted mother to present testimony and any other evidence that she had (although she presented none) bearing on S.’s best interests. On appeal, mother has not identified any evidence bearing on S.’s best interests that she was precluded from offering at trial.

Mother next asserts that the “trial court was clearly erroneous in finding that there was a material change of circumstances.” According to mother, her inability to travel with S. to Maryland and the fact that “Child Protective Services had been called three times” are not material changes. Viewing the record as a whole, the court concludes that there was sufficient evidence to support the trial court’s conclusion that a material change of circumstances had occurred.

Next, having reviewed and considered the entire record, the circuit court did not abuse its discretion in modifying the custody arrangement. After hearing two days of evidence regarding compliance issues with the agreement and considering the best interests of S., the court reasonably concluded that sole legal and primary physical custody with father was in S.’s best interests. The court’s findings were supported by the record and not clearly erroneous.

Finally mother argues that that “the court abused its discretion when it failed to find [father] in contempt for failing to pay child support.” Father responds that “there is no right of appeal by a party who unsuccessfully seeks to have another party held in contempt.” The court agrees.

Judgment of the Circuit Court for Baltimore County affirmed.