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Konstantinos Karanikas v. Rachel Karanikas Cartwright

February 26, 2013


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


Krauser, C.J., Berger, Thieme, Raymond G., Jr. (Retired, Specially Assigned), JJ.*fn1

Opinion by Berger, J.

This case involves an appeal from orders entered in the Circuit Court for Anne Arundel County. The orders awarded sole legal and physical custody of the parties' nine- year-old child ("the child") to appellee, Rachel Karanikas Cartwright ("Mother"), and ordered Konstantinos Karanikas ("Father") to pay child support to Mother. This appeal followed.

Father presents three questions for our review, which we have rephrased as follows:

1. Whether the circuit court abused its discretion by denying Father's motion to disqualify the trial judge.

2. Whether the trial judge abused his discretion due to the manner in which he conducted an interview with the parties' daughter.

3. Whether the circuit court abused its discretion in granting the award of child support.

For the reasons set forth below, we affirm the judgments of the Circuit Court for Anne Arundel County.


Mother and Father are the parents of a nine-year-old daughter ("the child"), born on July 7, 2003. The parties are also the parents of a son, who is emancipated by reason of age, and is not a subject of the present litigation. Pursuant to the parties' consent order and judgment of divorce, they were awarded joint legal custody of the child. In the event of a conflict with regard to long-range decisions, the parties were required to participate in mediation. Mother was awarded primary physical custody of the child, and Father received a specific visitation schedule.

The consent order and judgment of divorce also awarded Mother use and possession of the marital home for a period of four years. During Mother's use and possession, she was ordered to pay the mortgage, taxes, and interest payment for the marital home. Mother's use and possession period expired on October 5, 2012.

The child had resided in Maryland her entire life. She attended Oak Hill Elementary

School in Severna Park, Maryland. On March 1, 2012, Mother sent an e-mail to Father indicating that she intended to relocate to Pennsylvania with the child after the end of the school year. Father did not consent to the relo cation. Thereafter, the parties participated in mediation, but were unable to reach an agreement regarding the relocation of the child.

Both parties filed pleadings with the circuit court requesting a modification of the consent order and judgment of divorce with regard to custody and visitation. The circuit court scheduled an expedited trial to address the relocation of the child. Both parties appeared at a pre-trial hearing, propounded and responded to written discovery requests, and participated in depositions. The relocation trial was scheduled for September 7, 2012. On August 1, 2012, during the pendency of the litigation, Mother registered the child to attend a public school in Pennsylvania. U pon notification of the school registration, Father requested a temporary restraining order and other injunctive relief in the circuit court. The circuit court denied Father's request for a temporary restraining order. Further, the court entered a pendente lite order prohibiting the child's registration in school in Pennsylvania, and required the child to start the school year in Maryland until further order of the circuit court and completion of the relocation trial.

Accordingly, the child began school at Oak Hill Elementary in Maryland in August 2012.

The trial began on September 7, 2012. Father's counsel alerted the trial court that he planned to have the child testify either in open court or in chambers. At the conclusion of the first day of trial, the trlajudge met with the child in chambers. The trial was not completed on September 7, 2012, and was continued to September 12, 2012. At the beginning of the second day of trial, Father presented an oral motion to disqualify the trial judge, accompanied by a written memorandum of law in support of his motion. Father alleged that the trial judge had demonstrated bias due to comments he made regarding testimony on the first day of trial. Additionally, Father alleged that the trial judge conducted the child interview inappropriately. Father argued that these actions required disqualification of the trial judge.

The trial judge initially entertained counsel's argument on the motion for disqualification. At the close of counsel's argument, the trial judge referred the motion to another judge for a ruling. As a result, the parties and counsel went to the second judge's courtroom for a determination of the motion for disqualification. The second judge denied the motion for disqualification based upon her review of the written motion and memorandum of law.

The second day of trial proceeded before the original judge. Mother and Father testified regarding their financial resources and expenses. It was undisputed at the trial that the Maryland child support guidelines did not apply because the parties' combined gross monthly income exceeded the guidelines. At the conclusion of the trial, the trial judge held the case under advisement and indicated that his decision would be forthcoming. Father's counsel made an oral motion to stay any order to be issued by the trial judge in the event that the child was relocated to Pennsylvania. The trial judge did not rule on the motion to stay.

On September 13, 2012, the trial judge signed a Memorandum and Interim Custody Order relocating the child from Maryland to Pennsylvania. The order required the child to relocate to Pennsylvania on September 15, 2012. The trial judge faxed copies of the order to counsel the same day, but the order was not entered or docketed by the clerk.

Father's counsel called the trial judge's chambers to inquire when he could be heard on the motion to stay that had been made in open court at the conclusion of the trial. Subsequently, Father's counsel was informed that the trial judge decided to hold Father's oral motion to stay under advisement, that the trial judge would not hear counsel's argument on the motion to stay, and that a decision on any open issues in the case, including the motion to stay, would follow in a further written order.

On September 14, 2012, Father filed a Notice of Appeal and Emergency Motion for Injunction Pending Appeal. At this time, the interim custody order had not yet been entered on the docket. This Court granted Father's request in part, entering a temporary stay and setting a deadline for Mother to file any written response to Father's motion. On September 17, 2012, the custody order was released from chambers to the clerk's office for docketing.

On September 17, 2012, the trial judge signed and entered a Custody, Visitation, and Support Order and an Order for Sale of Property. This order modified custody, and awarded Mother sole legal and sole physical custody of the child, with a specific visitation schedule for Father. The order also required Father to pay child support to Mother in the amount of $2,883. The order further mandated that Father pay the mortgage and all associated expenses for the former marital home until it was sold.

That same day, Father filed his second notice of appeal, appealing the following orders: the interim custody order entered on September 17, 2012; the custody, visitation, and support order docketed on September 17, 2012; the presiding judge's refusal to disqualify himself from the case; and the second trial judge's denial of Father's motion for disqualification of the presiding trial judge. Subsequently, after the case concluded, the trial judge disqualified himself from the case.


I. Motion for Disqualification

Father's first argument on appeal is that the trial court abused its discretion by refusing to disqualify the presiding trial judge on the basis of comments the trial judge made during testimony, and his handling of the interviw of the child. In Father's view, the behavior demonstrated bias, established the perception that the trial judge was not impartial, and constituted a failure to uphold and apply the law. Mother responds that the judge's conduct did not rise to the level that a reasonable person would perceive as improper or impartial. We agree that the trial court did not abuse its discretion in denying Father's motion for disqualification.

A Maryland judge "shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned . . ." Md. Rule 16-813, Md. Code of Judicial Conduct Rule 2.11(a) (the "Rules"). Similarly, "[a] judge shall avoid conduct that would create in reasonable minds a perception of impropriety." Rule 1.2(b). Impartiality under the Rules means the "absence of bias or prejudice in favor of, or against, particular classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge." Rules, Section B.

Further, a judge "shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary." Rule 1.2(a). The Rules also require that judges "uphold and apply the law and shall perform all duties of the office impartially and fairly." Rule 2.2. Accordingly, "[a] judge shall not, in the performance of judicial duties, by words or conduct, manifest bias, prejudice or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation." Rule 2.3. "A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, court staff, court officials, and others with whom the judge deals in an official capacity . . ." Rule 2.8.

"When bias, prejudice or lack of impartiality is alleged, the decision is a discretionary one . . ." Surratt v. Prince George's County, 320 Md. 439, 465 (1990). A "trial judge is presumed to know the law and apply it properly." State v. Chaney, 375 Md. 168, 180 (2003) (quotations omitted). The person seeking recusal bears a "heavy burden to overcome the presumption of impartiality." Atty. Grievance Comm'n v. Blum, 373 Md. 275, 297 (2003). See also Reed v. Baltimore Life Ins. Co., 127 Md. App. 536, 556 (1999) (citing Jefferson- El v. State, 330 Md. 99, 107 (1993)) ("Maryland adheres to a strong presumption that a trial judge is impartial, thereby requiring a party requesting recusal to prove that the judge has a bias or prejudice derived from an extra-judicial-personal-source."). We review a trial court's recusal decision pursuant to an objective standard; namely, "[w]hether a reasonable member of the public knowing all of the circumstances would be led to the conclusion that the judge's impartiality might reasonably be questioned." In re Turney, 311 Md. 246, 253 (1987).

A. Bias and Lack of Impartiality

Father cites several instances in which the trial judge allegedly demonstrated bias and lack of impartiality due to comments he made regarding the testimony of Father and Father's wife, Deanna Karanikas ("Step-Mother").

i. Father's Testimony

Father first alleges that he attempted to testify about a suggestion to Mother that the parties extend Mother's use and possession period in the former marital home and that Father would continue to pay the mortgage. Mother's counsel objected, characterizing the discussion as a settlement negotiation. Father's counsel responded to the objection. The trial judge replied: "It's either a settlement offer or nonsense."

Mother argues that this comment is taken out of context, and provides the following complete citation for reference:

That is a negotiation of some kind. I think the relevant, admissible and important part of that is that the Court has previously indicated that she would have exclusive use and possession of the house. Now, of course, the Court can't chain somebody to a house, but she was given that right through October, and she moved out in what would seem about June. Now, I'll let you explain to me at the end of the case why that's relevant, but the fact that he might have offered some -- it sounds like a bit like a hyperbole to say, 'I'll pay you to be there 10 years from now.' It's either a settlement offer or nonsense, so in any event, it's stricken. And I'll admit, as I say, only discussions that he attempted to make it easier for her to stay for a longer period of time.

Mother contends that the trial judge's entire commentary makes clear that the trial judge was "merely acknowledging that the proffer contained some form of a negotiation, or settlement offer, and that he would take from it the relevant portions and strike those portions that he felt were irrelevant, or 'nonsense.'"

Next, when Father explained that he went to inspect the former marital home and brought someone with him to see the state of the home, the trial judge commented: "You brought a witness with you, huh? . . . Do you normally take witnesses around with you when you go places?" Mother contends that the trial court was "merely attempting to clarify and understand what happened when Father inspected the house." Mother provides the following citation to the entire exchange:

THE COURT: Is this the U&O house, the formal marital home? [THE WITNESS]: Yes, the one --

THE COURT: So no one had been living there for how long? [THE WITNESS]: Maybe a week to two weeks.

THE COURT: Oh, just a -- it was within a week? [THE WITNESS]: Yes, Your Honor.

THE COURT: Okay. All right. Brought a witness ...

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