Kadish v. Kadish

Miranda S. Kadish v. Craig M. Kadish
No. 275, Sept. Term, 2021
Opinion by Leahy, J.
Family Law > Child Custody > Discovery Violations > Sanctions
In a child custody case, the discretion of the trial court to exclude evidence is not only
measured by the potential prejudice to the parties, but is constrained by a court’s “absolute
and overriding obligation to conduct a thorough examination of all possible factors that
impact the best interests of the child.” A.A. v. Ab.D., 246 Md. App. 418, 444 (2020), cert.
denied, 471 Md. 75 (2020).
Family Law > Child Custody > Discovery Violations > Sanctions
We conclude that the discovery sanctions imposed by the circuit court in this child custody
case were consistent with the Maryland Rules and our decisional law. We hold that 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. A.A. v. Ab.D.,
246 Md. App. 418, 422 (2020) (citing Flynn v. May, 157 Md. App. 389, 410 (2004)), cert.
denied, 471 Md. 75 (2020).
Circuit Court for Baltimore County
Case No. 03-C-18-006784
CHILD ACCESS
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 275
September Term, 2021
______________________________________
MIRANDA S. KADISH
v.
CRAIG M. KADISH
______________________________________
___
Nazarian,
Leahy,
Harrell, Glenn T., Jr.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Leahy, J.
______________________________________
Filed: April 27, 2022
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2022-04-27 15:25-04:00
Suzanne C. Johnson, Clerk
In considering whether to impose discovery sanctions in the underlying child
custody case, the trial court was confronted with a party that repeatedly failed to comply
with discovery obligations and court orders. In an earlier case, A.A. v. Ab.D., we explained
that the “best interests of the child standard is the leading consideration for the court in
deciding whether to preclude a party from introducing evidence as a discovery sanction in
a child custody case.” 246 Md. App. 418, 422, cert. denied, 471 Md. 75 (2020). We held
that the court erred in prohibiting mother from presenting evidence “without considering
the impact that the sanction would have on the best interests of the children.” Id. at 447.
By contrast, in this case, we conclude that the court safeguarded the child’s right to have
her best interests fully considered while appropriately imposing a series of escalating
sanctions for the recalcitrant party’s discovery violations.
Appellant Miranda S. Kadish (“Mother”) appeals from an order of the Circuit Court
for Baltimore County adjudicating several motions relating to the care of the parties’ child,
S., in favor of appellee Craig M. Kadish (“Father”). Among other things, the court granted
Father sole legal and physical custody, subject to Mother’s visitation rights; determined
that Mother was in contempt of the Judgment of Divorce; and denied Mother’s motion for
contempt and retroactively modified Father’s child support obligations. Mother presents
four questions for our review, which we have consolidated and recast as follows:1
1
The questions as presented in Mother’s brief are:
“1. Did the trial court err or abuse its discretion in its Order of October 22,
2020 granting [Father]’s Consolidated Motion for Sanctions?
(Continued)
I. Did the trial court err and/or abuse its discretion by issuing a series of escalating
discovery sanctions for Mother’s repeated failure to adequately respond to
Father’s discovery requests, culminating in the imposition of a rebuttable
presumption as to S.’s best interests?
II. Did the trial court err and/or abuse its discretion in finding a material change of
circumstances and granting Father primary physical custody and sole legal
custody?
III. Did the trial court err and/or abuse its discretion when it failed to adjudge Father
in contempt?
Discerning no error or abuse of discretion, we affirm the judgment of the circuit
court.
BACKGROUND
Mother and Father married on September 8, 2014 and are the parents of S. (or
“Child”), who was born in 2015. Mother and Father separated as of March 1, 2018. After
the separation, Mother relocated to the State of Nevada, and Father remained in Maryland.
A judgment of absolute divorce was entered on July 8, 2019.
2. Did the trial court err or abuse its discretion in its Order of December 3,
2020 when it held the [c]ourt shall apply a rebuttable presumption in the
trial that the minor child’s best interest would be served by a modification
of the Judgment herein to grant [Father] primary physical custody and
sole legal custody of the parties’ minor child and that said presumption
shall be rebuttable by [Mother] only upon presentation of evidence
directly bearing on the best interests of the minor child?
3. Was the trial court clearly erroneous in finding that there was a material
change in circumstances since the Judgment of Divorce and it was in the
best interest of the minor child to grant [Father] primary physical custody
and sole legal custody?
4. Did the trial court abuse it’s [sic] discretion when it failed to find [Father]
in contempt for failing to pay child support?”
2
Separation and Property Settlement Agreement
The parties entered into a “Separation and Property Settlement Agreement”
(“Agreement”) on June 24, 2019, which was then incorporated, but not merged, into the
judgment of divorce. The judgment granted the parties joint legal and shared physical
custody of S. “subject and pursuant to the terms set forth in the Agreement.”
The Agreement required the parties to consult with each other “regarding the
emotional, moral, educational, physical and general welfare of the Child” and gave both
parties the “right to participate fully and equally” in making decisions with respect to the
“education, medical treatment, illness, operations (except in emergencies)[,] health,
welfare and other matters of similar importance affecting the Child.” Although each party
was charged with making “day-to-day decisions” concerning S. while she was in their
physical custody, the Agreement allowed the parties to have “co-equal authority to make
all ‘Major Decisions,’ affecting the Child (i.e., all decisions concerning permanent
residence, school/education, summer camp, serious medical care, religious
training/upbringing and participation in extra-curricular activities).” To resolve any
conflict between the parties regarding any Major Decisions, the Agreement provided for
the appointment of a parenting coordinator, who was tasked with facilitating a joint
resolution. In the event a joint resolution could not be reached, the parenting coordinator
was to “determine the resolution of the Major Decision.”
The Agreement broadly contemplated that S. would reside primarily with Mother
in Nevada during the school year and with Father in Maryland during the summer.
Correspondingly, the Agreement required Mother to “propose a fully licensed and
3
accredited pre-school for the Child to attend for the 2019-2020 academic year” on or before
July 15, 2019, subject to Father’s approval, which “shall not be unreasonably withheld.”2
The Agreement entitled Father to an “access period” of nine overnights each month
during the school year and Mother to eight overnights each month during the summer.
The parties also received “telephone and/or FaceTime access with the Child not less than
once every three (3) days” while S. is in the other party’s care.
The monthly travel arrangements for the pick-up and return of S. between Nevada
and Maryland at the start and end of each access period were specified under the
Agreement. Each May, Father was to “travel to Nevada to pick-up the Child to commence
his Summer access period.” Mother was required to “both pick-up and return the Child at
the start and at the end of each of her access periods in June and July” and to “travel to
Maryland to pick-up the Child at the end of Father’s Summer access period in August.”
Father was required to pick-up and return S. at the start and end of his access periods in
September, November, January, and March; and Mother at the start and end of Father’s
access periods in October, December, February, and April. If S. traveled with Mother or
Father “by air,” the other party had to be notified in writing at least a week in advance.
Among other things, the Agreement also required Father to pay to Mother $2,816.00
per month in child support and to maintain life insurance for S.’s benefit.3
2
Father was “entitled to enroll the Child in fully licensed and accredited, non-
residential . . . camps” when S. was with Father during the Summer.
3
Although this is an above-Guidelines case, Father’s child support obligation was
calculated in accordance with the Child Support Guidelines, Maryland Code (1984, 2019
(Continued)
4
Petition for Contempt
On November 19, 2019, Father filed a “Petition for Contempt and For Enforcement
of Separation Agreement, Etc.” In his petition, Father averred that “anticipating ongoing
difficulties in attempting to co-parent S[.] with [Mother], [Father] (through counsel) sought
to ensure, to the maximum extent possible, that the Agreement’s provisions relative to
S[.]’s care, custody, etc., were set forth in substantial and unmistakable detail.” Among
other issues, Father asserted that Mother: (1) “frustrat[ed] S[.]’s much needed corrective
eye surgery”; (2) delayed the appointment of a Parenting Coordinator; (3) failed “to
designate any pre-school” or enroll S. full-time in a compliant pre-school until late October
2019; and (4) failed “to have S[.] attend pre-school on at least eight (8) of the fifteen (15)
school days” since she began school on October 28. Father also said that Mother failed to
comply with the Agreement’s travel and travel notification provisions and did not visit S.
at all during “almost four (4) months that [Father] had S[.]’s physical custody.”
A few months after filing this petition, on January 7, 2020, Father propounded
interrogatories and a request for production of documents. Father also served Mother with
a notice of deposition set for February 13, 2020. Mother did not respond to any discovery
requests and failed to appear for her deposition.4
Repl. Vol. 2019), Family Law Article (“FL”), § 12-204. The parties’ worksheet was
attached to the Agreement and listed Father and Mother’s monthly incomes as $27,083 and
$5,833, respectively.
4
Mother was represented by counsel during this time and throughout the underlying
litigation except for the period between March 3, 2020, when her prior counsel’s
appearance was stricken, and June 19, 2020, when her current counsel noted his
appearance.
5
On March 18, 2020, Father filed an “Amended and Supplemental Petition for
Contempt and for Enforcement of Separation Agreement, Etc.” The amended petition did
not assert additional grounds for contempt but provided additional detail to the contentions
in Father’s prior petition. Mother did not respond to the original contempt petition and
failed to respond to the amended petition until June 19, 2020.
Discovery Dispute Related to Contempt Petition
On March 18, 2020, along with the amended petition for contempt, Father filed a
“Motion for Sanctions and/or to Compel.” He alleged, among other things, that Mother:
(1) failed to serve answers to interrogatories; (2) failed, despite receiving multiple
extensions, to respond or produce any documents in response to requests for production;
(3) failed to appear for her deposition; and (4) failed to respond to efforts to reschedule her
deposition. Again, Mother did not respond.
On April 9, 2020, the circuit court granted Father’s motion, in part, and ordered
Mother to respond to Father’s discovery requests and produce any responsive documents
no later than May 1, 2020. Due to the COVID-19 emergency, the court denied, “without
prejudice at this time,” Father’s request that Mother appear at her deposition.
Rather than answer the interrogatories or produce documents as directed, on April
24, Mother filed a “Motion to Vacate & Dismiss Prior Judgment for Discovery.” In her
motion, Mother asserted that Father “has filed endless frivolous lawsuits against [Mother]
through abuse of power,” and that Father “is in contempt of court by failing to pay [Mother]
child support while refusing to release shared minor child to [Mother].” The court denied
6
Mother’s motion on May 14 and ordered her to “provide written discovery responses and
documents as previously ordered.”
After Mother failed to provide the discovery first requested in January 2020 and
twice ordered by the court on April 9 and May 14, Father filed a “Renewed/Second Motion
for Discovery Sanctions” on June 12. Father noted that Mother “had thirty (30) days since
the [c]ourt’s latest Order compelling discovery, sixty-four (64) days since the [c]ourt’s
original Order compelling discovery and one-hundred fifty-seven (157) days since [] the
discovery requests were served upon her (at a time when she was represented by counsel)”
but still had not served documents. (Emphasis in original).
On June 19, 2020, Mother filed a response through new counsel who explained that
he had just been retained. He requested an additional six weeks to provide the discovery
responses. The court denied this request. On July 7, the court granted Father’s renewed
motion and ordered that the matters sought in Father’s first discovery requests, “i.e. proof
of all the allegations of [Father]’s Amended and Supplemental Petition for Contempt, be
taken as established.” The order also “prohibited [Mother] from introducing any matters
into evidence so as to attempt to controvert the allegations of the Amended and
Supplemental Petition for Contempt.” The court clarified that “the sanctions imposed
hereby shall only be applicable to the resolution of [Father]’s Amended and
Supplemental Petition for Contempt and not to [Father]’s also pending Petition for
Modification (of custody).” (Emphasis added).
On August 6, 2020, Mother filed a “Motion to Reconsider,” and requested the court
to reconsider its July 7, 2020 order. While Mother “admit[ted] that her violation of the
7
discovery order was substantive in nature,” Mother asserted that the imposed sanction was
“overly harsh” and that she was prepared to provide discovery responses by August 31,
2020. She attributed her delayed responses to the withdrawal of her prior counsel and the
time necessary to retain new counsel and asserted that the prejudice to Father was minimal
as the hearing date was then still three months away.
Father opposed, noting that Mother had been extended “over seven (7) chances and
two hundred twenty-four days (224) days” to comply. The court denied Mother’s motion
to reconsider on August 27.
Petition for Modification
Contemporaneously with his amended petition for contempt and first motion for
sanctions, on March 18, 2020, Father filed a “Motion for Modification” related to the
custody of S. Father alleged that “the parties’ circumstances have materially changed such
that it is now in S[.]’s best interests to be in [Father]’s sole legal and primary physical
custody.” The alleged changes in circumstances included: Mother’s “inability and/or
unwillingness” to comply with the circuit court’s judgment and the Agreement; Mother’s
“inability or unwillingness” to provide adequate basic care to S.; and Mother’s failure,
“intentionally or negligently,” to provide S. “opportunities for education and socialization
expressly contemplated in the Agreement as necessary to serve her best interests.” “Most
significantly,” according to Father, Mother “voluntarily forfeited some, most or all of her
variously scheduled physical custody/access periods with the Child such that since entry
of Judgment herein S[.] has actually resided far more with [Father] than she has with
[Mother].” Father claimed that S.’s life with Mother “is a maelstrom of uncertainty and
8
chaos, infused with endless illnesses . . . , school absences, . . . care usually provided [S.]
by others rather than [Mother], an absence of appropriate socialization activities, etc.”
After filing the petition for modification, Father stopped making child support payments.5
Mother’s Petition for Contempt for Failure to Pay Child Support
On April 27, 2020, Mother filed a “Petition for Contempt” and alleged that Father
had not paid $2,816.00 in child support as required by the court’s order. In her motion,
Mother requested that the court order “jail time to enforce its order.” Eventually (as we
explain below), Mother’s petition for contempt was denied in open court on March 24,
2021.
Further Discovery Disputes Relating to Father’s Motions
On July 9, 2020, Father propounded over 300 separately-numbered requests for
admissions. Mother responded to Father’s requests on August 10. Mother objected on
relevancy grounds to the vast majority of requests for admission relating to the period
before the Judgment of Divorce; the validity of the Agreement; whether S. had autism;
whether she and S. reside with her second child and the second child’s father; and whether
this individual provides any financial support.
On August 17 and 18, Father served a second set of interrogatories and requests for
production of documents. Mother did not respond. Father also noticed Mother’s
deposition, this time for October 26, 2020.
5
Mother did not immediately respond to Father’s petition for modification.
Accordingly, on June 12, 2020, Father requested an order of default. After Mother filed a
response to Father’s petition for modification, the default was denied.
9
i. Consolidated Motion
On September 29, 2020, Father filed a “Consolidated Motion for Sanctions
Regarding [Mother]’s Multiple Failures to Provide Discovery Relative to Custody Issues.”
This was Father’s third motion for discovery sanctions. Concerning Mother’s responses to
the admissions requests, Father requested, given “the lack of time between now and trial
(with [Mother]’s deposition set for October [2]6) and in consideration of [Mother]’s woeful
track-record of non-compliance with [the court’s] discovery Orders,” that all responses in
which Mother “wrongfully asserted ‘irrelevance’ as a basis for refusal to respond” be
deemed admitted. He also requested that Mother be precluded from presenting evidence
on facts that she failed to share in response to discovery “by asserting ignorance or lack of
recollection.” Father also sought an order defaulting Mother from the modification
proceeding and precluding her from offering any testimony or “any other evidence” that
would have been discoverable pursuant to Father’s interrogatories and document requests.
On October 14, Mother filed an opposition in which she requested seven additional
days to serve her discovery responses. On October 22, no responses having been filed by
Mother, the court entered an order granting Father’s motion for sanctions. In the order, the
court deemed admitted all the requests for admissions to which Mother refused to respond
on the basis of relevance. The order also precluded Mother from presenting evidence
relating to facts “as to which she avoided responding . . . by asserting ‘lack of knowledge’
and/or ‘lack of recollection.’” The order further excluded any testimony regarding
evidence that would have been discoverable pursuant to Father’s interrogatories or requests
10
for production of documents “unless such evidence has direct bearing on the best interests
of the parties’ child.” (Emphasis added).
ii. Protective Order as to Deposition
Six days before her deposition, scheduled for October 20, 2020, Mother filed a
motion for protective order and to allow her deposition “by Telephone or Other Remote
Means.” Father countered that, because Mother still had not responded to interrogatories
or document requests, “it is literally impossible for [Father] to take [Mother]’s deposition
remotely and certainly not with[in] the time limits provided by the Rules.” The court
denied Mother’s protective order, noting that her motion was filed shortly before the
deposition date “leaving the [c]ourt and [Father] with inadequate time to consider
[Mother]’s request.” Once again, Mother did not appear for her deposition as scheduled.
iii. Fourth Motion for Discovery Sanctions
After Mother failed to appear for her deposition, Father filed a “Fourth Motion for
Discovery Sanctions” and noted that Mother did not propose “alternate appearance dates,
even though she traveled to, and was in Baltimore, on November 1, 2020.” Father asserted:
[Mother]’s discovery failures herein are so pervasive and prejudicial to
[Father]’s trial preparation that this [court], having exhausted any other
available sanctions, should now apply a rebuttable presumption herein that,
had [Mother] provided discovery responses as required by the Rules and the
Orders of this [court], those discovery responses would have demonstrated
that the minor child’s best interests will be served by modification of the
Judgment herein to provide for the child to reside primarily with [Father], in
Baltimore, subject to reasonable rights of access for [Mother], and that the
minor child’s best interests will be served by an award of her legal custody
to [Father], all to ensure some modicum of stability and benefit for the child.
11
The court granted Father’s motion on December 8, 2020. By this point, Mother had
failed to answer two separate sets of interrogatories, had not appeared for her deposition
(which had been noticed on three separate occasions), had not responded to two separate
requests for production of documents, and had not produced a single document—
irrespective of the court’s orders requiring that she comply with discovery, including two
orders that already imposed sanctions. Accordingly, the court’s order stated, in full:
Upon the Fourth Motion for Sanctions filed herein by [Father], and
there being no response thereto filed herein by [Mother], there appearing
good cause for the Motion, it is this 3rd of December, 2020 by the Circuit
Court for Baltimore County and the same is hereby ORDERED that:
1. The Fourth Motion for Sanctions be and hereby []is GRANTED.
2. Lacking any other less severe sanction any longer available to the
[c]ourt (all less severe sanctions having been utilized in connection with
[Mother]’s prior failures and refusals to provide discovery) the [c]ourt shall
apply a rebuttable presumption in the trial of this case that the minor child’s
best interests will be served by a modification of the Judgment herein to grant
[Father] her primary physical custody and her sole legal custody. Said
presumption shall be rebuttable by [Mother] only upon presentation of
evidence directly bearing on the best interests of the minor child, i.e., as
provided in the prior sanctions Orders herein.
3. [Father]’s request for attorney’s fees in connection with the Fourth
Motion for Sanctions be and hereby is RESERVED to trial on the merits.
(Bolded emphasis in original, italicized emphasis added).
Mother filed a “Motion to Reconsider” on January 6, 2021. Mother asserted that
she had “intended to appear for the deposition” but her other daughter “began having
problems again” and “there was a surge in Covid-19 cases.” Mother requested that the
deposition be rescheduled and that it be done “by telephone or by other electronically
remote means.”
12
The court denied Mother’s motion for reconsideration on January 26, 2021.
iv. Second Request for Admissions
In the interim, Father served Mother with a second request for admissions, which
largely sought to confirm facts after Father’s first request. Mother did not respond to
Father’s second request.
Mother’s Motion to Modify Custody and Child Support
Turning to Mother’s offensive pleading, back in September 2020, she filed a
“Motion to Modify Custody and Child Support” and alleged “material changes in
circumstances that require a modification of the physical custody of S[.]” since the
Judgment of Divorce. In her motion, she alleged that the travel contemplated in the
Agreement is “very stressful for S[.]” and the COVID-19 pandemic made “any flying a
danger to S[.] and to both parties.” Because the schedule required S. to “miss nine (9) days
of class each month of the school year,” S.’s principal advised that “missing so much time
will have an adverse effect on S[.]’s attendance and record.” Accordingly, Mother claimed
that it was in S.’s “best interests to be with [Mother] during the school year with [Father]
having a more limited visitation schedule” and sought sole physical custody. She further
sought modification of child support and responsibilities to pay transportation expenses.
Father moved to strike Mother’s motion for failure to provide the financial
disclosure forms required by Maryland Rules 9-202 and 9-203.6 He responded to the
allegation that S. “is flying cross-country every month,” by asserting that “given [Mother]’s
6
Before moving to strike, Father informed Mother of her requirement to provide a
Rule 9-203(a) Financial Statement.
13
voluntary failure to exercise any of the Summer access periods afforded” or to “deliver and
retrieve S[.] in alternate months during the ‘School Year,’ in practical application, S[.]’s
actual travel has been limited to seven (7) roundtrips in the sixteen-plus (16+) months since
the entry of the Judgment of Divorce.”7
Motion for Postponement
On the eve of trial, scheduled to begin on March 23, 2021, Mother moved to
postpone, alleging that in early March she “started to not feel well and her condition has
continued to worsen.” In support, Mother submitted two letters: the first from the P3
Medical Group, dated March 11, recommending that Mother avoid frequent flying or
walking; and the second, dated March 22, advising that Mother “cannot fly or travel until
further evaluation.” The court denied Mother’s request for postponement on the record on
the morning of trial. Over Father’s objection, however, the court permitted Mother to
participate remotely.
Trial
The circuit court proceeded with a two-day trial in which it addressed four motions:
(1) Father’s amended and supplemental petition for contempt; (2) Mother’s petition for
modification of custody; (3) Father’s petition for modification of custody and child
support; and (4) Mother’s motion for contempt.
7
In connection with Mother’s motion, she served interrogatories and requests for
production of documents on Father. On November 5, 2020, Father filed answers to
Mother’s interrogatories and responded to her request for the production of documents.
14
Following opening arguments, Father testified first. He testified extensively to
Mother’s failure to comply with the travel and notification provisions of the Agreement.
Among other things, he related that S. regularly traveled on “red eye” flights and that
Mother did not “usually” travel with S. between Baltimore and Las Vegas as the Agreement
contemplated.8 On one occasion, S. returned to Baltimore on February 12 early in the
morning without a winter coat and her school work, and had a “vicious sunburn” and
damage to her feet. Father had to enlist care that morning because he did not receive travel
information from Mother until “late in the evening on the 10th” and had morning conflicts.
Due to the condition of S.’s feet and sunburn, Father contacted S.’s pediatrician and then
took S. to the John Hopkins pediatric emergency room.
Father further testified that the Baltimore City Police Department and the
Department of Social Services went to his home while S. was there to investigate
allegations of physical child abuse on three occasions; twice in the summer immediately
following the divorce and then again on October 24, 2020.9 On each occasion, Father
testified that there was no finding of abuse, and no further follow-up from the police or the
Department of Social Services. Father then began to take pictures before returning S. to
Mother to “document that she was not bruised, not beaten when [he] returned her.”
8
Instead, S. often traveled with Kim Gagnon, S.’s babysitter.
9
Although is not clear from the record, the testimony implies that these allegations
of physical child abuse were made by Mother.
15
Father added that Mother had only reported S.’s medical appointments “once or
twice” after entry of the Judgment. Father concluded that S. is either “not getting medical
care” or “she’s getting it and I’m not getting the information.”
Regarding his “Facetime” rights while in Mother’s care, Father testified that he
exercised his rights “every time” with the exception of one night in 2019 when he fell
asleep “because we’re a three hour time difference.” Father also pointed out that of the
638 overnights since the date of divorce, that S. had been in his care for 414.
Following Father’s testimony, counsel for Mother requested the court break to allow
Mother to attend her medical appointment. The court excused the parties for the day to
accommodate Mother’s request.
When the parties reconvened, Mother began her testimony by describing her
“typical day” with S. She maintained that the “highlight of [S.’s] day” was playing with
her sister to whom she is “attached at the hip.”
Mother explained that she had difficulty abiding with travel requirements in the
Agreement for a variety of reasons. She had another child at home with health issues and
also had health issues relating to her birth. Mother also asserted that pandemic restrictions
made travel more difficult and that she just “couldn’t afford it.” She related that S.’s
demeanor after returning from access periods with Father “varie[d].” Initially, S. “came
home very angry” and was “scared to be alone.” She would become aggressive.
Mother admitted that she traveled to Hawaii several times over the last year because
her partner “stays in Hawaii for his company, his employer. And our health insurance and
everything is moved there, so it requires us to go there on occasion.” When questioned by
16
the court how she flies S. to Hawaii but cannot afford to travel to Baltimore, Mother
responded that “the company pays for it.”
Regarding the impact a potential change to the custodial arrangement would cause,
Mother testified that S. “needs both of her parents.” Mother urged that a change in custody
“would cause [S.] emotional distress.” In describing her relationship with S., Mother
testified that “[s]he’s my bestie. We do everything together. . . . We talk about everything.”
Finally, Mother testified that she did not plan to keep S. in her current public school but
would “prefer her be in private school.”
Ultimately, Mother did not proffer anything that was precluded on the issues of
custody or child support. During Mother’s direct examination, Father’s objections to
Mother’s testimony based on the court’s discovery sanctions were overruled. The judge
explained that she was “going to hear about matters bearing on the child’s best interests.”
On cross-examination, among other things, Mother confirmed that she lived with
the father of her second child in a home owned by him. When questioned how she could
afford private school tuition if she could not afford flights to Baltimore, Mother responded
that it “depended on what school it is,” whether she receives support from Father, and
whether she receives grants. When asked why she did not fly with S. back to Baltimore in
November, Mother responded that she had her second child and that her partner was on
another island.
Determination of Initial Motions
At the conclusion of evidence related to whether there was a change of
circumstances, Father made four motions. First, Father moved to strike Mother’s motion
17
for child support, which was granted due to Mother’s failure to file a financial disclosure.
Second, Father moved for “judgment on the issue of modification of custody, both
petitions” and asserted that the presumption had not been rebutted. Mother’s counsel
urged, to the contrary, that it was not in the child’s best interests to alter the custodial
arrangement and that “there has been no evidence to show that there’s been a significant
detrimental [e]ffect on S[.]’s well being.” Father’s counsel responded that the court
“granted the presumption . . . because it’s the [c]ourt’s burden, the [c]ourt’s authority, the
[c]ourt’s responsibility to figure out the best interest of a child.” Because Mother
“behave[d] in a manner that can only be deemed to deny . . . the [c]ourt the ability to do its
job, the [c]ourt must infer that it’s sort of a variation of the empty chair rule.”
The court then recounted the long procedural history and determined that a change
in circumstances had occurred:
[M]y decision in this case is not to punish anyone for not complying
with court rules. That’s not what we do in family law. It’s -- everything is
about the child’s best interest.
However I did indicate at the end of yesterday’s proceedings that . . .
it seemed to me as if the presumption that there had been a change in
circumstances affecting S[.]’s best interest had occurred. And I can say now
that [Mother’s counsel] just told me that he will not be presenting any more
testimony or evidence.
After observing [Mother]’s, I’ll just call it -- characterize it as
frustrating testimony this morning, it’s very clear to me there has been a
change in circumstances. I don’t need to rely on the presumption.
There has been a change in circumstances since the parties entered
into their [Agreement] that they signed in June of 2019 and that these changes
have affected S[.]’s best interests.
The chaos caused by [Mother] gives the [c]ourt great concern. I am
thinking of [Father]’s testimony yesterday about just three access periods,
December which ended up going into January and then February which was
again troublesome, that’s all I’ll say about it, getting S[.] picked up.
18
The other thing that’s change[d] is that Child Protective Services has
been called three times and S[.] has been subjected to being woken up, most
recently, I’ll focus on that, in October of 2020, two days before the deposition
was to have taken place.
And that’s just not something that any child should be subjected to,
let alone a child whose parents clearly don’t communicate well. She’s got
enough to deal with, she doesn’t need to be woken up in her home, taken
from her bed and at one point taken to Hopkins for an examination and the
other two times at least she was allowed to stay home.
But that in itself, those three calls are sufficient, I find, for me to find
a change in circumstances affecting S[.]’s best interests.
The court also granted Father’s consolidated contempt petitions, but denied a
motion that Father had filed for a mental health evaluation, finding that Mother’s
testimony, although “somewhat bizarre,” did not “rise[] to the level of a mental health
evaluation.”
Custody Determination
In further consideration of the motion for modification, the court invited the parties
to present additional testimony, relevant to S.’s best interests, before the court made a final
custody determination. Father proposed an access schedule that he hoped would lead to
“more orderly and reliable communication with regard to [S.’s] travel and exchanges.”
Mother’s counsel confirmed that Mother did not wish to testify further on the issue of
forward-going access and that Mother did not have any witnesses.
After closing arguments, the court delivered a lengthy ruling from the bench. At
the outset, the judge reiterated that she believed her ruling to be in S.’s best interest and
underscored that her decision was not reached based on Mother’s failure to comply with
various court orders and discovery rules. The court then proceeded to analyze each of the
19
factors set forth in Montgomery County Department of Social Services v. Sanders, 38 Md.
App. 406, 420 (1977).
Among other things, the court found Father to be a “fit and proper parent” and a
“very involved father.” Although the judge noted that she could not opine as to Mother’s
fitness due to her unwillingness to engage in the litigation process, the court “drew
inferences based on the testimony.” The judge referenced, among other things, Mother’s
failure to pick up S. from her Father’s custody for long periods of time, and the impact on
S.’s ability to plan and achieve consistency.
The judge found Father’s testimony consistent and credible and “his character
appropriate for a concerned involved father.” On the other hand, she found Mother’s
testimony “bizarre” and was concerned about Mother’s truthfulness, finding that a
“troubling character aspect.” The trial judge found that the Agreement “began to fail
almost immediately.” While the court noted that Father is able to provide “structure and
consistency” in S.’s life, she found that Mother “can’t remember where she was last month
or what day she got back from Hawaii last month.” The judge noted that, although the
Agreement contemplated that S. would spend 38 percent of custodial time with Father and
62 percent with Mother, in actuality, they flipped, and Father had S. for 65 percent of time.
The court then turned to whether joint custody was appropriate and reviewed the
factors set forth in Taylor v. Taylor, 306 Md. 290 (1986). Among other things, the court
found that Mother had “zero capacity to communicate with [Father], with the [c]ourt, with
anyone, with the parent coordinator who has begged her to meet with her.” The trial judge
20
specifically noted that granting sole legal custody to Father would allow him to “plan
accordingly and provide the structure that . . . S[.] would truly benefit from.”
After this determination, the court proceeded to establish a custody schedule.10
Finally, the court granted Father’s request to make his motion to modify child support
retroactive to the date of filing and ordered the parties to be charged generally with support
of S. while she is in their care. The judge memorialized her ruling in a written order entered
on March 29, 2021. Mother noted a timely appeal.
DISCUSSION
I.
Sanctions for Discovery Violations
A. Parties’ Contentions
Mother contends that the court abused its discretion in two orders relating to
Mother’s responses to Father’s discovery requests. First, Mother avers that the “trial court
abused its discretion in its Order of October 22, 2020 as to the sanctions imposed relative
to [Mother]’s Responses to [Father]’s Request for Admissions.” According to Mother, the
court failed to specify, pursuant to Maryland Rule 2-424, that “an answer be served with
respect to those requests.” 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.”
10
The custody schedule granted Mother visitation for the following periods: Labor
Day weekend; either Thanksgiving weekend or another weekend in November; Winter
Break; Presidents’ Day weekend; spring break; Memorial Day weekend; and four vacation
weeks in the summer.
21
Second, Mother argues that the court abused its discretion when the court issued its
December 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. Quoting this Court’s opinion in A.A. v. Ab.D., 246 Md. App. 418, 444
(2020), cert. denied, 471 Md. 75 (2020), Mother argues that the “court has an absolute and
overriding obligation to conduct a thorough examination of all possible factors that impact
the best interests of the child” and that the “burden is on the moving party.” She asserts
that “[b]y switching that burden, requiring the non-moving party to rebut a presumption as
to what is in the best interest of the child, the court has already made a finding without the
moving party proving its case. [Mother] submits that this is an abuse of discretion.”
Father counters that “[a] custody litigant cannot defeat the trial court’s authority and
responsibility to determine the best interests of a minor child, by refusing to provide any
discovery whatsoever.” According to Father, a court “must have the ability to address such
conduct, to ensure protection of the child’s best interests.” (Emphasis in original). Father
asserts that “it is the litigant parents’ obligation to present to the trial court all the relevant
evidence necessary to permit a knowing, informed and comprehensive judicial
consideration and resolution of the custody issue.”
Father contends that, “over a 14-month period,” he “attempted, by every
conceivable method, to discover the facts and information concerning his daughter’s
existence in Las Vegas, etc., and to otherwise learn the basis of [Mother]’s contention that
S[.]’s best interests would be served by the status quo custody arrangement.” According
to Father, these “discovery efforts were effectively and completely ignored and/or
22
frustrated by [Mother], whose sole and obvious purpose was to prevent the trial court from
determining S[.]’s best interests on a fully (or at all) informed basis.” (Emphasis in
original). Father posits that:
Judge Cavanaugh did everything possible, including imposition of the
rebuttable presumption, in an effort to achieve precisely [a thorough
examination of all possible factors that impact a child’s best interests] for
S[.]’s benefit. It was not the trial judge, but [Mother] herself who, by all
means possible, tried to prevent the circuit court from “conducting a
thorough examination of all possible factors that impact the best interests of
the child” []; and it was [Mother] herself who ultimately failed to present
sufficient, persuasive evidence “that bears directly on the best interests of
the child,” to prevail on the issue, despite being afforded the opportunity.
(Emphasis in original). According to Father, were we to restrain the court’s ability to
impose a rebuttable presumption due to Mother’s discovery deficiencies, we would
“validate and endorse” Mother’s “campaign of discovery avoidance, defeat entirely the
efficacy of the discovery rules in custody cases and, most dangerously, tie the hands of
every trial judge in attempting to determine the best interests of every minor child,
rendering all such determinations subject to whatever scope of evidence each recalcitrant
parent self-servingly elects to disclose, present or withhold.”
In the alternative, even if the court abused its discretion in sanctioning Mother,
Father avers that Mother was not prejudiced. Father points out that Mother does not “point
to a single example, of where or how she was prevented or limited in making her
presentation by any of the Orders of the trial court.” “Far from being prejudicially
precluded from submitting evidence, [Mother] was expressly invited, to testify further as
to S[.]’s best interests, once the trial court determined a change of circumstances had
occurred; but she affirmatively declined.”
23
B. Discovery Sanctions in Child Custody Cases
We recently explained our standard of review concerning the imposition of
discovery sanctions in child custody cases:
Normally, we evaluate a trial courts’ discovery sanction in a civil case
through a well-defined lens—abuse of discretion. Rodriguez v. Clarke, 400
Md. 39, 57, 926 A.2d 736 (2007); see also Das v. Das, 133 Md. App. 1, 15,
754 A.2d 441 (2000) (“Abuse of discretion occurs ‘where no reasonable
person would take the view adopted by the [trial] court,’ or when the court
acts ‘without reference to any guiding rules or principles.’” (quoting North
v. North, 102 Md. App. 1, 13-14, 648 A.2d 1025 (1994))). However, before
we look through that lens in a child custody case, we must be satisfied that
the court has applied the best interests of the child standard in its
determination. When the custody of children is the question, “the best
interest[s] of the children is the paramount fact. Rights of father and mother
sink into insignificance before that.” Kartman v. Kartman, 163 Md. 19, 22,
161 A. 269 (1932).
A.A. v. Ab.D., 246 Md. App. 418, 441 (2020), cert. denied, 471 Md. 75 (2020).
In a child custody case, “[i]t is a bedrock principle that when the trial court makes a
custody determination, it is required to evaluate each case on an individual basis in order
to determine what is in the best interests of the child.” Reichert v. Hornbeck, 210 Md. App.
282, 304 (2013) (citing Gillespie v. Gillespie, 206 Md. App. 146, 173
(2012)). “[P]rocedural defects should not be corrected in a manner that adversely impacts
the court’s determination regarding the child’s best interests.” A.A., 246 Md. App. at 446.
“Unfortunately, as happens in child custody cases, one or more parties may fail to
comply with their discovery obligations.” Id. at 442. Generally, Maryland Rule 2-433
offers two separate mechanisms through which a court may levy sanctions. Warehime v.
Dell, 124 Md. App. 31, 54 (1998).
24
First, on the motion of a discovering party, the trial court may impose immediate
sanctions if it finds a “failure of discovery” against the failing party. Md. Rule 2-433(a).
A “failure of discovery” occurs when a party, among other things, “fails to serve a response
to interrogatories under Rule 2-421 or to a request for production or inspection under Rule
2-422, after proper service.” Md. Rule 2-432(a). Such sanctions include:
(1) An order that the matters sought to be discovered, or any other designated
facts shall be taken to be established for the purpose of the action in
accordance with the claim of the party obtaining the order;
(2) An order refusing to allow the failing party to support or oppose
designated claims or defenses, or prohibiting that party from introducing
designated matters in evidence; or
(3) An order striking out pleadings or parts thereof, or staying further
proceeding until the discovery is provided, or dismissing the action or any
part thereof, or entering a judgment by default that includes a determination
as to liability and all relief sought by the moving party against the failing
party if the court is satisfied that it has personal jurisdiction over that party[.]
Md. Rule 2-433(a).
Second, when a party fails “to obey an order compelling discovery,” the trial court
may impose further sanctions under Maryland Rule 2-433(c):
If a person fails to obey an order compelling discovery, the court, upon
motion of a party and reasonable notice to other parties and all persons
affected, may enter such orders in regard to the failure as are just, including
one or more of the orders set forth in section (a) of this Rule. If justice cannot
otherwise be achieved, the court may enter an order in compliance with Rule
15-206 treating the failure to obey the order as a contempt.
Even in the absence of a particularized rule or statute, trial courts inherently have
the power “to definitively and effectively administer and control discovery.” Gallagher
Evelius & Jones, LLP v. Joppa Drive-Thru, Inc., 195 Md. App. 583, 596 (2010) (“Even if
. . . the precise action taken by the circuit court is not specifically prescribed by a rule or
25
statute, the court has the ability, in general, to definitively and effectively administer and
control discovery, as the Maryland Rules contemplate.” (cleaned up)). On the whole,
“[t]rial judges are vested with great discretion in applying sanctions for discovery failures,”
Rodriguez v. Clarke, 400 Md. 39, 56 (2007), and our review is “quite narrow,” Sindler v.
Litman, 166 Md. App. 90, 123 (2005) (“[A]ppellate courts are reluctant to second-guess
the decision of a trial judge to impose sanctions for a failure of discovery.”). “When a
court exercises its discretion by balancing and weighing the rights, interests, and reasons
of the parties, the court is not required to discuss each factor considered,” Hossainkhail v.
Gebrehiwot, 143 Md. App. 716, 725 (2002), and is “not required to set out in detail each
and every step of his [or her] thought process,” Thomas v. City of Annapolis, 113 Md.
App. 440, 450 (1997).
While we require that parties substantially comply with their discovery obligations,
“we also expect parties to resolve their known discovery disputes promptly, either
informally or by using the mechanisms available under the . . . discovery rules.” Watson
v. Timberlake, 251 Md. App. 420, 434 (2021), cert. denied, 476 Md. 281 (2021).
“Ultimately, discovery sanctions are not to operate as a windfall, but instead are intended
to relieve the surprise or prejudice a party suffers when his opponent fails to abide by the
discovery rules.” Id. at 437. The “more draconian sanctions, of dismissing a claim or
precluding the evidence necessary to support a claim, are normally reserved for persistent
and deliberate violations that actually cause some prejudice, either to a party or to the
court.” Butler v. S&S P’ship, 435 Md. 635, 650 (2013) (quoting Admiral Mortg., Inc. v.
Cooper, 357 Md. 533, 545 (2000)).
26
In a child custody case, the discretion of the trial court to exclude evidence is not
only measured by the potential prejudice to the parties, but is constrained by a court’s
“absolute and overriding obligation to conduct a thorough examination of all possible
factors that impact the best interests of the child.” A.A., 246 Md. App. at 444. In A.A., we
analyzed the balance between the court’s discretion and this “absolute and overriding
obligation.” Id. There, father propounded document requests and interrogatories upon
mother in connection with his motion for modification of custody of the parties’ two
children. Id. at 426. Father moved to compel, asserting that mother failed to respond fully
to his interrogatories and “barely produced anything in th[e] case.” Id. at 426-27. After
mother failed to timely respond, father sent a second motion to compel and then moved in
limine to exclude the testimony of witnesses for whom mother had failed to provide contact
information as well as any documentary evidence mother failed to provide. Id. at 427. The
court granted father’s motion, and, as a result, at trial mother was precluded from calling
witnesses and limited to introducing only documents that her counsel produced in response
to father’s document requests. Id. at 429, 432-33. Her testimony was limited to the subjects
on which she provided detail in her responses to discovery. Id. at 430-31. The court
“sustained objections relating to Father’s contributions to the children’s private school
education, Mother’s attempt to involve Father in the children’s homeschooling program,
and how sharing physical custody would affect the children’s education” because the
testimony sought was outside of these subjects. Id. at 432.
On appeal, we held the trial court erred when it excluded evidence as a discovery
sanction without first examining whether that evidence could have assisted the court in
27
deciding what custody arrangement was in the children’s best interests. Id. at 447. The
court did not assess the evidence that mother intended to offer, which may have included
details regarding a protective order and allegations of abuse, which, in turn, may have
weighed directly on father’s fitness for custody. Id. at 447-48. Without this evidence, the
court was unable to fully determine father’s fitness to have custody of the children. Id. at
448.
Notwithstanding the court’s authority to exclude evidence willfully withheld by a
party in violation of discovery requests, we highlighted that, “in a child custody case, the
court has an absolute and overriding obligation to conduct a thorough examination of all
possible factors that impact the best interests of the child[ren]. . . . This supreme obligation
may[, therefore,] restrain the court’s broad authority to exclude evidence as a discovery
sanction.” Id. at 444. Reaffirming the principles espoused in Flynn v. May, 157 Md. App.
389 (2004), and Wells v. Wells, 168 Md. App. 382 (2006), two cases detailing the necessary
procedural safeguards in the context of default judgments, we observed that “procedural
defects should not be corrected in a manner that adversely impacts the court’s
determination regarding the child’s best interests.” A.A., 246 Md. App. at 446.
We stressed that the trial court “is in the unique position to marshal the applicable
facts, assess the situation, and determine the correct means of fulfilling a child’s best
interests.” Id. at 447 (quoting Baldwin v. Baynard, 215 Md. App. 82, 108 (2013)).
“Plainly, a child’s best interests are best attained when the court’s decision is as well-
informed as possible.” Id. We concluded:
28
[T]he court’s independent obligation to the child[ren] requires that, before
ordering the exclusion of evidence as a sanction, the court should take a
proffer or otherwise ascertain what the evidence is that will be excluded, and
then assess whether that evidence could assist the court . . . in its
determination of the best interests of the child[ren]. When the court
completes this assessment, we review any discovery sanction it imposes
thereafter for an abuse of discretion.
Id. at 448-49.
C. Analysis
We conclude that the discovery sanctions imposed by the circuit court in this child
custody case were consistent with the Maryland Rules and our decisional law. We hold
that 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. A.A., 246 Md. App. at
422 (citing Flynn, 157 Md. App. at 410).
Initially, we observe that the court’s sanctions were permissible under the Maryland
Rules and were not disproportionate to Mother’s almost complete failure to produce any
discovery.11 In fact, the sanctions were not the most severe that the trial court could have
11
Mother does not challenge the court’s consideration of the Taliaferro factors
before us. Taliaferro v. State, 295 Md. 376, 390-91 (1983). We note that Mother also did
not address the factors below at trial or in any response to motions she now challenges on
appeal. We conclude, under the circumstances of this case, that the court’s sanctions were
appropriate and proportionate, given Mother’s pervasive and repeated discovery failures.
Generally, after determining that a discovery violation has occurred, the following
six factors, first set forth in Taliaferro, inform the court’s determination of an appropriate
sanction:
(1) whether the disclosure violation was technical or substantial;
(2) the timing of the ultimate disclosure;
(3) the reason, if any, for the violation;
(Continued)
29
imposed under Maryland Rule 2-433. Without recapping the entirety of Mother’s
discovery violations, we note, for example, that Mother’s initial failure to respond to
interrogatories and requests for production of documents constituted a “failure of
discovery” under Maryland Rule 2-432(a), allowing the court to impose immediate
sanctions. The court, instead, afforded Mother an additional 22 days to provide written
responses in a written order. Despite multiple chances to respond to Father’s
interrogatories or document requests, Mother simply failed to respond altogether. See
Warehime v. Dell, 124 Md. App. 31, 48 (1998) (A party’s “failure to answer interrogatories
[is] a substantial, not a technical, discovery violation.”).
(4) the degree of prejudice to the parties respectively offering and opposing
the evidence;
(5) whether any resulting prejudice might be cured by a postponement; and,
(6) if so, the overall desirability of a continuance.
Id. at 390-91 (cleaned up). “[I]t is not necessary for the court to go through a checklist and
note its consideration for each factor.” Muffoletto v. Towers, 244 Md. App. 510, 542
(2020), cert. denied, 469 Md. 276 (2020). Indeed, these factors “frequently” “overlap” and
“do not lend themselves to a compartmental analysis.” Id. (quotation omitted).
Accordingly, “[w]e do not look at each incident in isolation, but rather at the entire history
and context of the case in reviewing the trial court’s decision[.]” Valentine-Bowers v.
Retina Grp. of Wash., P.C., 217 Md. App. 366, 380 (2014). While it is helpful for our
review when trial judges explain their application of each factor, we “presume judges to
know the law and apply it, even in the absence of a verbal indication of having considered
it.” Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405, 426 (2007) (quoting Wagner v.
Wagner, 109 Md. App. 1, 50 (1996)).
In any event, applying the Taliaferro factors here, we observe that Mother’s failure
to show up for her deposition or respond to almost all discovery requests and court orders,
without good reason, amounted to substantial violations of the discovery process. As to
the prejudice factor, Father was prejudiced by Mother’s continued failure to provide
information relating to S.’s life while in Mother’s care and that he required to prepare for
trial. Finally, Mother’s track record throughout the case offered the court no reason to
believe that she would start cooperating with any further postponements.
30
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.
Maryland Rule 2-433(a) outlines the potential sanctions that a circuit court may
impose when it finds a failure of discovery. This list is not exhaustive; in addition to its
authority under this Rule, a circuit court “also has the power to impose sanctions as part of
the court’s inherent power to control and supervise discovery.” A.A., 246 Md. App. at 443;
see also Gallagher Evelius & Jones, LLP v. Joppa Drive-Thru, Inc., 195 Md. App. 583,
596 (2010) (“Even if . . . the precise action taken by the circuit court is not specifically
prescribed by a rule or statute,” the court has the authority to administer and control
discovery).
The list of potential sanctions in Rule 2-433(a) includes “[a]n order that the matters
sought to be discovered, or any other designated facts shall be taken to be established for
the purpose of the action in accordance with the claim of the party obtaining the order[.]”
In other words, 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. See,
e.g., Billman v. State of Md. Deposit Ins. Fund Corp., 86 Md. App. 1, 14, 21 (1991).
31
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.
A.A., 246 Md. App. at 447. 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.” The court’s decision to allow Mother the opportunity to rebut the presumption is
consistent with our decision in A.A. v. Ab.D., where we resolved that “the best interests of the
child . . . is the leading consideration for the court in deciding whether to preclude a party from
introducing evidence as a discovery sanction in a child custody case.” Id. at 422. Regarding her
answers to admissions, Mother objected to the vast majority of requests relating to her
income, the validity of the Agreement, the period before the Judgment of Divorce, and
aspects of her life in Nevada. While Mother assured the court that she would amend her
answers within seven days of her response, she did not do so. The court’s sanction was not
ordered until after the seven days expired.
The purpose of discovery is to “eliminate, as far as possible, the necessity of any
party to litigation going to trial in a confused or muddled state of mind, concerning the
facts that gave rise to the litigation.” Warehime, 124 Md. App. at 48 (quoting Balt. Transit
Co. v. Mezzanotti, 227 Md. 8, 13 (1961)). By utterly failing to comply with her obligations,
Mother acted in a manner inconsistent with the purposes of discovery. We conclude that
the sanctions were “proportionate to the discovery abuse,” Rodriguez v. Clarke, 400 Md.
39, 70 (2007), and discern no error or abuse of discretion.
32
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. We are not persuaded.
The facts of this case stand in stark contrast to A.A. Whereas in A.A., the mother
sought to introduce evidence of Father’s past conduct but was foreclosed by the court, 246
Md. App. at 447-48, the Mother here stymied both the Father and the court’s efforts to
obtain information bearing on S.’s best interests.
We hold that the trial court contended with Mother’s incessant discovery violations
properly by fashioning sanctions that, among other things, restricted her ability to present
evidence at trial that she failed to produce in discovery without barring any evidence
necessary for the court to consider in making a custody determination in S.’s best interests.
Indeed, 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.
33
II.
Custody Modification
A. Parties’ Contentions
Mother 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. Mother appears to be asserting that, because S. “has spent time with
both parties” and “continued to go to school when at either parties’ home,” S.’s
circumstances had not materially changed. Therefore, relying on Wagner v. Wagner, 109
Md. App. 1, 29 (1996), Mother asserts that the court erred in modifying custody when there
was no material change in circumstances.
Father responds that “the record is replete with evidence supporting the finding of
change of circumstances.” According to Father, the two examples listed by Mother in her
brief, the “travel schedule” and the “involvement of Child Protective Services,” “by
themselves would be sufficient to support [the court]’s finding that S[.]’s circumstances
had materially changed since the date of divorce. But the body of other evidence, both as
presented by [Father] in his case-in-chief and in [Mother’s] testimonial response . . . are
far more than sufficient to support the trial court’s conclusion that S[.] had been deprived
of the post-divorce existence . . . contemplated.” (Emphasis in original).
34
B. Framework for Modification of Child Custody
We review a court’s child custody determinations utilizing three interrelated
standards of review. In re Yve S., 373 Md. 551, 586 (2003). The Court of Appeals
described this review as follows:
We point out three distinct aspects of review in child custody disputes. When
the appellate court scrutinizes factual findings, the clearly erroneous standard
of [Rule 8-131(c)] applies. [Second], if it appears that the [court] erred as to
matters of law, further proceedings in the trial court will ordinarily be
required unless the error is determined to be harmless. Finally, when the
appellate court views the ultimate conclusion of the [court] founded upon
sound legal principles and based upon factual findings that are not clearly
erroneous, the [court’s] decision should be disturbed only if there has been a
clear abuse of discretion.
Id. (cleaned up). “In our review, we give ‘due regard . . . to the opportunity of the lower
court to judge the credibility of the witnesses’” and recognize the discretion of the trial
court to “award custody according to the exigencies of each case.” Gillespie v. Gillespie,
206 Md. App. 146, 171 (2012) (quoting In re Yve S., 373 Md. at 584, 585-86).
The Family Law Article grants the circuit court continuing equitable jurisdiction
over custody matters, Maryland Code, (1984, 2019 Repl. Vol.), Family Law Article, § 1-
201(c). The statute provides: “In exercising its jurisdiction over the custody, guardianship,
visitation, or support of a child, an equity court may: . . . (4) from time to time, set aside or
modify its decree or order concerning the child.” “Because the court retains continuing
jurisdiction over the custody of minor children, no award of custody or visitation, even
when incorporated into a judgment, is entirely beyond modification, and such an award
therefore never achieves quite the degree of finality that accompanies other kinds of
judgments.” Frase v. Barnhart, 379 Md. 100, 112 (2003).
35
While custody orders are never final, a request to modify an order should emphasize
changes in circumstances since the last order. Gillespie, 206 Md. App. at 171-72 (“The
burden is then on the moving party to show that there has been a material change in
circumstances since the entry of the final custody order and that it is now in the best interest
of the child for custody to be changed.” (quoting Sigurdsson v. Nodeen, 180 Md. App. 326,
344 (2008))). Our courts engage in a two-step process when presented with a request to
modify an existing custody order. Id. at 170. First, the circuit court must assess whether
“there has been a material change in circumstances.” Green v. Green, 188 Md. App. 661,
688 (2009). “A material change of circumstances is a change of circumstances that affects
the welfare of the child.” Gillespie, 206 Md. App. at 171. Second, should the court find a
material change in circumstances, “the court then proceeds to consider the best interests of
the child as if the proceedings were one for original custody.” Id. at 170 (quoting McMahon
v. Piazze, 162 Md. App. 558, 594 (2005)). The trial court is thus required to evaluate each
case on an individual basis to determine what is in the best interests of the child. Wagner
v. Wagner, 109 Md. App. 1, 39 (1996).
In analyzing the best interests of the child, we are guided by the factors articulated
in Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406, 420
(1977), and, with particular relevance to the consideration of joint custody, Taylor v.
Taylor, 306 Md. 290, 304-11 (1986). In Sanders, this Court listed ten non-exclusive
factors: (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
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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. 38 Md. App. at 420.
In Taylor, the Court of Appeals enumerated thirteen specific, non-exclusive factors,
including some that overlap with the Sanders factors: (1) capacity of the parents to
communicate and to reach shared decisions affecting the child’s welfare; (2) willingness
of parents to share custody; (3) fitness of parents; (4) relationship established between the
child and each parent; (5) preference of the child; (6) potential disruption of child’s social
and school life; (7) geographic proximity of parental homes; (8) demands of parental
employment; (9) age and number of children; (10) sincerity of parents’ request; (11)
financial status of the parents; (12) impact on state or federal assistance; and (13) benefit
to parents. 306 Md. at 304-11.
Courts are not limited by any particular list of factors but are instead vested with
wide discretion in making decisions concerning the best interests of children. Azizova v.
Suleymanov, 243 Md. App. 340, 345 (2019); see also Taylor, 306 Md. at 303 (in noting
“transcendent importance” of child’s best interests, stating that no one factor “has
talismanic qualities, and that no single list of criteria will satisfy the demands of every
case” (citation omitted)).
C. Material Change of Circumstances
In this case, the trial judge explained in detail the basis for her determination that a
material change in circumstance had occurred since the parties signed the Agreement and
that “these changes have affected S[.]’s best interests.” The trial judge specifically found
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that the “chaos” in S.’s life caused by Mother raised “great concern.” In support, the court
referenced three access periods when Mother failed to abide by the Agreement and pick up
S.12 Specifically, the court referenced the “troublesome” February drop-off before Father’s
access period with S. On that occasion, S. arrived in Baltimore early in the morning
without a winter coat and her school work, and had a “vicious sunburn” and damage to her
feet. In addition, the court found that the repeated involvement of Child Protective Services
interfered with Father’s care and impacted S.’s welfare and best interests. Significantly,
the court noted that, while the Agreement contemplated that S. would spend 38 percent of
custodial time with Father and 62 percent with Mother, in actuality, Father had S. for 65
percent of the time that had elapsed since the Agreement was signed.
Viewing the record as a whole, we conclude that there was sufficient evidence to
support the trial court’s conclusion that a material change of circumstances had occurred.
The evidence at trial highlighted that the parties’ Agreement simply was not working.
Father testified extensively to Mother’s failure to comply with the travel and notification
provisions of the Agreement. Echoing Father’s testimony, Mother explained that she had
difficulty abiding by the Agreement for a number of reasons. These reasons included her
other child’s health issues, her own health issues, the cost, and that her “life wasn’t flexible
in that nature.” Mother’s consistent difficulties in complying with the Agreement’s travel
12
Mother also alleged that a material change in circumstances required a
modification of custody in her September 21, 2020 “Motion to Modify Custody and Child
Support.” Mother claimed that the travel contemplated in the Agreement is “very stressful
for S[.]” and that the pandemic made flying dangerous and prevented S. from getting into
a routine.
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provisions resulted in S. residing with Father for almost twice as long as the Agreement
contemplated. The circuit court’s conclusion that this change in the intended operation of
Agreement impacted S.’s best interest by forestalling her ability to plan and achieve
consistency was reasonable.
Mother argues that these changes are not material because S. spent time with both
parties and continued to go to school. We disagree. We can envision few changes more
material to a child’s best interests than the unilateral action of one parent to disregard a
custody arrangement and leave a child with the other parent for an indeterminate period
without good cause. As the court found, such changes deprived S. of the stability that every
child craves.
D. Modification of Custody
Turning to the trial court’s custody determination, Mother does not present any
argument or assign error in the court’s decision to grant Father primary physical and sole
legal custody of S. Accordingly, we need not restate in detail each of the court’s findings
or explicate the court’s consideration of each the factors set forth in Sanders, 38 Md. App.
at 420, and Taylor, 306 Md. at 304-11. We further note, when presented with the
opportunity to present testimony regarding the modification of custody, Mother declined.
In brief and without belaboring the point, we observe that the trial court thoroughly
analyzed each of the Taylor and Sanders factors in considering the appropriate custody
arrangement. For example, the trial court noted that Father could provide “structure and
consistency” in S.’s life. In considering joint custody, the court found that Mother had
“zero capacity” to communicate with anyone, including Father, or the parent coordinator.
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The court found that granting Father sole custody would allow him to “plan accordingly
and provide the structure that . . . S[.] would truly benefit from.”
Having reviewed and considered the entire record, we conclude that 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. Accordingly, we conclude that the court did not abuse its
discretion in determining that a material change of circumstances had occurred and in
granting Father sole legal and physical custody of S., subject to Mother’s visitation rights.
III.
Contempt
Mother argues that that “the court abused its discretion when it failed to find [Father]
in contempt for failing to pay child support.” According to Mother, Father “unilaterally”
stopped paying child support without a court order or agreement with Mother. After the
court “ran the numbers with the actual percentages of the time the minor child was with
each parent,” the court determined that “there would still be child support owed of
$1,111.00 per month.” According to Mother, this resulted in arrears in the amount of
$13,332.00. Mother submits that she “still incurred expenses” in caring for S. when she
was in her custody and that the court abused its discretion in “not awarding the arrears as
calculated by the court.”
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Father, relying on Pack Shack, Inc. v. Howard County, 371 Md. 243, 254 (2002),
responds that “there is no right of appeal by a party who unsuccessfully seeks to have
another party held in contempt.” Father concludes: “independent of the validity of the trial
court’s determination (consistent with the statute) to retroactively modify child support to
the date of the filing of [Father]’s request . . .[,] there is simply no right of appeal available
to [Mother] in this circumstance and she cannot obtain any relief.” We agree.
Generally, unless constitutionally authorized, “[t]he right to appeal in this State is
wholly statutory.” Pack Shack, Inc., 371 Md. at 247. Our “statutory scheme is structured
to confer a broad, general right of appeal, that subsequently is limited by enumerated
‘exceptions.’” Id. at 249. The “general right of appeal,” id., is codified at Maryland Code
(1973, 2020 Repl. Vol.), Courts & Judicial Proceedings Article (“CJP”), § 12-301, and
provides:
Except as provided in § 12-302 of this subtitle, a party may appeal from a
final judgment entered in a civil or criminal case by a circuit court. The right
of appeal exists from a final judgment entered by a court in the exercise of
original, special, limited, statutory jurisdiction, unless in a particular case the
right of appeal is expressly denied by law. In a criminal case, the defendant
may appeal even though imposition or execution of sentence has been
suspended. In a civil case, a plaintiff who has accepted a remittitur may cross-
appeal from the final judgment.
(Emphasis added). Section 12-302 clarifies that the general appeal right “does not apply
to appeals in contempt cases, which are governed by § 12-304 of this subtitle[.]” CJP §
12-302(b). In turn, CJP § 12-304(a) states: “Any person may appeal from any order or
judgment passed to preserve the power or vindicate the dignity of the court and adjudging
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him in contempt of court, including an interlocutory order, remedial in nature, adjudging
any person in contempt, whether or not a party to the action.”
In construing section 12-304, the Court of Appeals has explained that the statute
“clearly and unambiguously limits the right to appeal in contempt cases to persons
adjudged in contempt.” Pack Shack, 371 Md. at 254. The statute establishes two
prerequisites: section 12-304 requires the order or judgment to be passed, first, to “preserve
the power and dignity of the court” and, second, “to have adjudged the person appealing in
contempt of court.” Id.Here, Mother does not have a right to appeal as “the party who unsuccessfully
sought to have the other adjudged in contempt.” Kemp v. Kemp, 42 Md. App. 90, 101
(1979), rev’d on other grounds, 287 Md. 165 (1980). Accordingly, Mother’s appeal of the
court’s finding that Father was not in contempt is not properly before us.
JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE COUNTY AFFIRMED;
COSTS TO BE PAID BY APPELLANT.
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