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Joseph D. Miller v. Amanda Lee Mathias

August 27, 2012

JOSEPH D. MILLER
v.
AMANDA LEE MATHIAS



The opinion of the court was delivered by: Bell, C.J.

Joseph D. Miller v. Amanda Lee Mathias,

No. 146, September Term 2008.

CIVIL PROCEDURE > STANDARDS OF REVIEW > ABUSE OF DISCRETION > In general, the denial of a motion to alter or amend a judgment or for reconsideration is reviewed by appellate courts for abuse of discretion.

CIVIL PROCEDURE > STANDARDS OF REVIEW > ABUSE OF DISCRETION > Trial judges do not have discretion to apply inappropriate legal standards, even when making decisions that are regarded as discretionary in nature.

CIVIL PROCEDURE > JUDGMENTS > RELIEF FROM JUDGMENT > MOTIONS TO ALTER & AMEND > In the case of a Rule 2-534 motion, the hearing requirement of Rule 2-311 (e) is mandatory.

CIVIL PROCEDURE > JUDGMENTS > RELIEF FROM JUDGMENT > MOTIONS TO ALTER & AMEND > Only in the case of a motion filed pursuant to Rule 2-534 is a hearing required before the motion can be granted.

CIVIL PROCEDURE > JUDGMENTS > RELIEF FROM JUDGMENT > MOTIONS TO ALTER & AMEND > Unlike Rule 2-534, Rule 2-535 is not specifically referenced in Rule 2- 311 and, thus, even though it too addresses the court's revisory power, permitting the court to take any action that it could have taken under Rule 2-534, a motion pursuant to it does not require a hearing to be granted. Nor are motions filed pursuant to Rule 2-535 limited to actions decided by the court and filed within ten days after entry of judgment.

CIVIL PROCEDURE > JUDGMENTS > RELIEF FROM JUDGMENT > MOTIONS TO ALTER & AMEND > Necessarily implicit in Rule 2-311 (b) is the direction that the court not rule on the motion before the time allowed for a response has elapsed.

CIVIL PROCEDURE > STANDARDS OF REVIEW > ABUSE OF DISCRETION > In general, the denial of a motion to alter or amend a judgment or for reconsideration is reviewed by appellate courts for abuse of discretion.

CIVIL PROCEDURE > APPEALS > STANDARDS OF REVIEW > PLAIN ERROR >

GENERAL OVERVIEW > Unless an appellant can demonstrate that a prejudicial error occurs below, reversal is not warranted.

CIVIL PROCEDURE > SUMMARY JUDGMENT > SUPPORTING MATERIAL >

GENERAL OVERVIEW > When an opposing party responds early to a summary judgment motion and in the response does not indicate that any additional response time is needed, the court is justified in deciding the motion forthwith.

GOVERNMENTS > LEGISLATION > INTERPRETATION > Statutory construction is a legal question, which we approach and decide de novo.

FAMILY LAW > CHILD CUSTODY > ENFORCEMENT > UNIFORM CHILD CUSTODY JURISDICTION & ENFORCEMENT ACT > The purpose of the Uniform Child Custody Jurisdiction and Enforcement Act is to provide stronger guidelines for determining which state has jurisdiction, continuing jurisdiction, and modification jurisdiction over a child custody determination, not to resolve the substantive issue of custody.

FAMILY LAW > CHILD CUSTODY > ENFORCEMENT > UNIFORM CHILD CUSTODY JURISDICTION & ENFORCEMENT ACT > Section 9.5-207 does not preclude a court from conducting an inconvenient forum analysis simply because the court has continuing, exclusive jurisdiction.

CIVIL PROCEDURE > VENUE > FORUM NON CON VENIENS > The decision whether to relinquish the court's jurisdiction in favor of a more convenient forum is one addressed to the sound discretion of the court.

Bell, C.J. Harrell Battaglia Greene *fn1 Murphy Adkins Barbera, JJ.

Opinion by Bell, C.J.

The appellant, Joseph D. Miller, in this case, presents three issues for review: whether the Circuit Court for Montgomery County erred in granting the Motion To Alter Or Amend, Or Alternatively To Revise Judgment, filed by the appellee, Amanda Lee Mathias, prior to when the answer was due, pursuant to Maryland Rule 2-311 (b),*fn2 and, therefore, without first receiving and considering that answer during an in-person hearing pursuant to Maryland Rule 2-311(e),*fn3 whether the "inconvenient forum" provisions of Maryland Code (1984, 2006 Repl. Vol.), § 9.5-207*fn4 of the Family Law Article apply to a child custody case in which the court has acquired "continuing, exclusive jurisdiction" pursuant to § 9.5-202*fn5 of the same article; and whether, if the inconvenient forum provisions are applicable, the Circuit Court properly applied them or abused its discretion in doing so. We shall affirm the judgment of the Circuit Court. First we reject the appellant's arguments based on Rule 2-311 (b) and (e), and hold that the court was not required to hold a hearing prior to granting the appellee's motion seeking to revise the court's dismissal of her action, and, in any event, the appellant suffered no prejudice. We also hold that § 9.5-207 of the Family Law Article clearly and unambiguously contemplates that a party or a court, upon motion, will raise the issue of inconvenient forum, even when the jurisdiction of the court is continuing and exclusive, pursuant to § 9.5-202. Finally, we shall hold that the Circuit Court did not abuse its discretion when it found Maryland to be an inconvenient forum for the underlying child custody dispute and therefore relinquished its jurisdiction to Virginia.

I. Background

The appellant and the appellee are the parents of a minor child, whose custody, legal and physical, they agreed to share. That joint custody agreement, contained in the Child Custody, Visitation And Child Support Agreement, executed when the parties both resided in Maryland, was incorporated, but not merged, into a Court Order of the Circuit Court and provided that "[t]he parties jointly agree that regardless of the precise number of hours each party shall have custody of the minor child as set forth herein, neither party shall be deemed to have primary residential custody of the minor child." Also addressed by the parties in that agreement was how future disputes arising under the agreement would be settled. Section III, entitled "Miscellaneous," article 5, a mediation clause, indicates that they opted for mediation as the preferred dispute resolution mechanism.*fn6 It provides:

"Settlement of Future Disputes. The parties recognize that disagreements may arise between them in the future, and they agree to attempt to settle these disagreements without court action to the fullest extent that may be possible. If the parties cannot resolve a controversy as to the modification, interpretation or alleged breach of this Agreement, they agree to first attempt to resolve the controversy in three (3) hours of mediation with mutually agreed upon mediator and to share equally the costs of the mediation. In the event they are unable to resolve the controversy through mediation, either party may apply to a court of competent jurisdiction for resolution of the issue."

Although when the agreement was signed, the parties both resided in Maryland, it was known and contemplated that the appellee would be moving to Virginia with her new husband. Now the appellant lives in Takoma Park, Maryland, while the appellee lives in Burke, Virginia, in Fairfax County, in northern Virginia.

For approximately two years, the circumstances of the parties remained unchanged. Thereafter, without first pursuing the mediation option, the appellee, who had, by then, moved to, and was living in, Virginia, filed, in the Juvenile and Domestic Relations Court of Fairfax County, Virginia, a Motion to Modify Custody. Concurrently, again without resorting to mediation, she filed, in the Circuit Court for Montgomery County, a Motion to Relinquish Jurisdiction to the Commonwealth of Virginia. In the Maryland motion, while acknowledging that, pursuant to 28 U.S.C. § 1738 (A) (f), the Parental Kidnapping Prevention Act, and § 9.5-202, the Circuit Court, because it made the initial custody determination and the appellant continues to reside in the State, had "exclusive, continuing jurisdiction," the appellee averred that the court could relinquish such jurisdiction "if it finds that it is an inconvenient forum," offering a number of reasons why she believed the court to be an inconvenient forum.*fn7 Specifically, the appellee averred:

"I. The nature and location of much of the evidence required to resolve the pending litigation is in the Commonwealth of Virginia, first and foremost, the child's school, health care professionals and church.

"J. The Plaintiff and the minor child have been attending a 21-week program in Fairfax County called 'Nurturing Parenting,' and the social workers associated with the program are expected to be witnesses in the custody action between the parties.

"K. Therefore, most of the witnesses essential in a custody and visitation proceeding such as teachers, doctors, therapists and coaches, are all in Virginia. It would be unduly burdensome for these witnesses to have to travel to Maryland to testify and unnecessarily costly for the Plaintiff to have to compensate professional witnesses for their time and their travel.

"L. The balance of hardships in terms of witnesses and evidence weighs heavily in favor of the Plaintiff."

The appellant responded to both actions.*fn8 The unifying theme of the motion he filed in the Virginia action to dismiss on jurisdictional grounds and the Opposition To Motion To Relinquish Jurisdiction To The Commonwealth Of Virginia, Or In The Alternative, Motion For Stay Of Proceedings, filed in the Circuit Court, was the allegation that the Maryland court had, and retained, "exclusive, continuing jurisdiction" of their child custody matter. As indicated, the appellee did not dispute this fact. The appellant, however, rejected the applicability of the inconvenient forum provision to that situation, where the custody decision has been made by the court which retains "exclusive, continuing jurisdiction." Interpreting § 9.5-207 as being applicable only "in the circumstances of an initial custody determination, not a motion to modify a prior determination," he argued:

"The issue is not whether the Court should 'make a child custody determination,' that was done in July 2006, by consent. Rather, the issue is whether the Court has 'exclusive, continuing jurisdiction' pursuant to § 9.5- 202 - Plaintiff freely acknowledges that this Court does have such jurisdiction, and that is and should be the end of this Court's inquiry. It makes a mockery of the term 'exclusive, continuing jurisdiction' to argue that such jurisdiction is neither exclusive nor continuing, yet that is precisely what the Plaintiff argues."

The Circuit Court, upon consideration of the appellee's motion, the appellant's opposition and the entire court record, and without a hearing, denied the appellee's Motion to Relinquish. On the same day, the Virginia Court "denied [the appellant's motion to dismiss] without prejudice at this time," stayed the proceedings and "Adjudged, Ordered and Decreed ..."

"1. As soon as a judge is appointed in the [appellee's] Motion to Relinquish Jurisdiction to Virginia, currently pending in the Montgomery County Circuit Court in Montgomery County, Maryland, case number 52467- FL, counsel for [the appellee] shall immediately notify [the appellant's] counsel.

"2. The Honorable David S. Schell shall communicate with the presiding judge in Maryland on the question of jurisdiction pursuant to § 20- 143.17*fn9 and §20-146.9*fn10 of the Code of Virginia,1950, as amended. Counsel shall set up a conference call between Judge Schell and the Maryland Judge. All parties shall be present at the communication and a record of said communication shall be made. Said communication shall take place via conference call, with Judge Schell appearing via telephone from Virginia."

On August 1, 2008, 16 days after the Circuit Court entered its order denying her motion to relinquish jurisdiction, the appellee filed in that court a "Motion to Alter or Amend, or Alternatively to Revise Judgment." In that motion, citing § 9.5-206(b)(2),*fn11 as consistent, she referenced, and attached, the initial Virginia Court Order, as well as ...


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