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Reichert v. Hornbeck

March 20, 2013

JEFFREY W. REICHERT
v.
SARAH H. HORNBECK, F/K/A SARAH H. REICHERT



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

Panel: ZARNOCH, HOTTEN, JAMES A. KENNEY, III, (Retired, Specially Assigned), JJ.*fn1

In this divorce action between Jeffrey W. Reichert ("Jeffrey"), the appellant-cross-appellee, and Sarah Hornbeck *fn2 ("Sarah"), the appellee-cross-appellant, the Circuit Court for Baltimore City granted a divorce on the grounds of a twelve-month separation, pursuant to Md.Code (1984, 2012 Repl.Vol.), § 7–103(a)(4) of the Family Law Article,*fn3 and granted both parties joint physical and legal custody of the child with tie-breaking authority to Sarah. The court declined to make any award of rehabilitative alimony to Sarah.

The court, however, ordered Jeffrey to pay $1,651 per month in prospective and retroactive child support. Because Jeffrey had contributed $500 per month in pendente lite child support prior to the absolute dissolution of the parties' marriage, the court credited him $4,806 in retroactive child support but, nevertheless, concluded he owed $15,006 in arrearages. As a consequence, the court ordered Jeffrey to pay an additional $500 per month in child support until the $15,006 in arrearages were satisfied. In addition, the court granted Jeffrey the right to claim the parties' minor child as a dependent for his 2011 taxes and every other year thereafter.

After reviewing the property the parties amassed during their eighteen-month marriage, the court found that the 2009 joint tax refund should have been equally divided into both Jeffrey and Sarah's accounts. As a consequence, the court concluded that because Jeffrey had wrongfully dissipated the entire amount of the refund, it was extant property. Therefore, the court designated half the amount of the refund ($3,100) Jeffrey's extant property. As a result, the court granted Sarah a monetary award in the amount of $7,000 and further awarded her $60,000 in attorney's fees.

Following the court's judgment of absolute divorce, Jeffrey filed a motion to alter or amend the court's judgment on October 27, 2011. In response, Sarah filed a motion in opposition and further moved to revise the court's previous judgment on November 16, 2011. The trial court held a hearing on February 21, 2012, and issued a memorandum and order on March 30, 2012, leaving open the issue of whether Sarah was entitled to additional attorney's fees for the post-trial motions. As a result, the court held an additional hearing on April 13, 2012, denying her request for additional fees.

Jeffrey noted a timely appeal to this Court.*fn4 In response, Sarah filed a timely cross-appeal. In sum, both parties presented six questions for our review. We have consolidated, rephrased, and reorganized them as follows: *fn5

1. Did the circuit court abuse its discretion when it ordered joint legal custody of the minor child with tie-breaking authority to Sarah Hornbeck and when it ordered joint physical custody of the minor child?

2. Did the circuit court err in its findings when it calculated the child support owed to the parties' minor child?

3. Did the circuit court err or abuse its discretion regarding the tax exemption for the parties' minor child?

4. Did the circuit court err in granting Sarah Hornbeck a monetary award in the amount of $7,000?

5. Did the trial court abuse its discretion in awarding Sarah Hornbeck $60,000 in attorney's fees?

For the reasons outlined below, we affirm the Circuit Court for Baltimore City's judgment of absolute divorce and its grant of joint physical and legal custody, with tie-breaking authority to Sarah Hornbeck. Because we conclude, however, that the court erred in ordering Jeffrey to pay an unrealized amount of income, in ordering alternating years to the tax dependency exemption without the appropriate consideration, in the granting of a monetary award, and in ordering $60,000 in attorney's fees, we vacate those orders and remand the case for further proceedings consistent with this opinion.

I.

FACTUAL AND PROCEDURAL HISTORY

Sarah and Jeffrey first met in a restaurant on April 8, 2000. Jeffrey was a recent law school graduate and bar exam passee, working for Allegis Group as Associate General Counsel. At that time, Sarah was preparing for her matriculation to the University of Baltimore School of Law and contemplating a future career in legal practice. The couple dated for a little over three years until their initial breakup in the spring of 2003. The relationship ended shortly before Sarah's successful completion of her legal studies. Although both Sarah and Jeffrey attributed their initial breakup of 2003 to different factors, both parties characterized their initial relationship as "rocky."

Nonetheless, Sarah and Jeffrey remained in contact with one another following the end of their initial relationship. Around April of 2008, the two agreed to meet for dinner.

Thereafter, the parties resumed their romance on and were engaged four months later. At that time, Jeffrey had proverbially moved-up the ladder at Allegis Group and was now earning approximately $125,000 a year as Group General Counsel for Allegis Group. In addition, he earned an additional amount from his work with the Army Reserves.

Shortly before the rekindling of their romance, Sarah was earning approximately $120,000 a year at Roy Kirby and Sons, Inc. She left the company, however, shortly after the end of her prior failed engagement. She subsequently assumed employment with Thomson Reuters as a Westlaw Research Specialist on August 17, 2009, earning roughly $68,340 a year.

On November 1, 2008, Sarah and Jeffrey moved into a three-story rental property located at 1286 Harbor Island Walk, Baltimore, Maryland 21230. The parties were subsequently married in an elaborate ceremony at Mount Vernon Place United Methodist Church on January 31, 2009. At the time of the parties' marriage, Jeffrey was 35.*fn6 Sarah was nearly 34.*fn7 Shortly thereafter, the parties' honeymooned on St. Kitts, an island located in the West Indies formally known as St. Christopher Island. Unfortunately, the conflict that Sarah and Jeffrey had experienced during their first relationship returned on the second night of their honeymoon and would remain throughout their short marriage.

Despite the parties' many disagreements, Sarah bore a son, Grant Lyle Reichert ("Grant"), on November 7, 2009. Sadly, Grant was born with a collapsed lung, and spent the first three nights after his birth in the Neonatal Intensive Care Unit at Johns Hopkins Hospital. At approximately twenty-four to twenty-five days of age, Grant began vomiting. Unfortunately, Grant's vomiting progressively worsened, necessitating emergency surgery to correct his pyloric stenosis.*fn8 Grant's medical complications have subsequently resolved.

Sarah and Jeffrey found ways to work through their personal conflicts to attend to the needs of their child. However, once Grant's condition improved Sarah and Jeffrey's discourse resumed. Marriage counseling proved unsuccessful.

At the end of a counseling session on August 27, 2010, Sarah and Jeffrey departed separately. Fearing for her safety and for that of her son, Sarah attempted to obtain a protective order, but her request was denied. Sarah returned home to Grant, who was in the care of Sarah's mother. Later that evening, divorce and custody papers were delivered to Sarah. After Sarah contacted counsel, she was subsequently informed that Jeffrey had filed a protective order against her. In response, Sarah filed a counter complaint for limited divorce, custody, child support and other relief. She subsequently filed a timely answer to Jeffrey's complaint on September 24, 2010. The parties proceeded to litigate the matter for a series of months.

Trial commenced on September 20, 2011. At the close of trial on September 30, 2011, the circuit court issued its oral opinion, in which it granted a divorce on the grounds of a twelve-month separation, pursuant to Md.Code (1984, 2012 Repl.Vol.), § 7–103(a)(4) of the Family Law Article,*fn9 and granted both parties joint physical and legal custody of the child with tie-breaking authority to Sarah. The court declined to make any award of rehabilitative alimony to Sarah.

However, the court ordered Jeffrey to pay $1,651 per month in prospective and retroactive child support. Because Jeffrey had contributed $500 per month in pendente lite child support prior to the absolute dissolution of the parties' marriage, the court credited him $4,806 in retroactive child support but concluded he, nevertheless, owed $15,006 in arrearages. As a consequence, the court ordered Jeffrey to pay an addition $500 per month in child support until the $15,006 in arrearages were satisfied. Additionally, the court granted Jeffrey the right to claim the parties' minor child as a dependent for his 2011 taxes and every-other year thereafter.

The court subsequently addressed Sarah and Jeffrey's distribution of the marital property. Preliminarily, it noted that both Jeffrey and Sarah entered the marriage as property owners, each individually owning condominiums in Baltimore City, Maryland. Further, although the court acknowledged that the parties' retirement plans were marital property, it granted the retirement plans to the respective spouse for whom the plan was created. After reviewing additional property the parties' amassed during their eighteen-month marriage, the court found that the 2009 joint tax refund should have been equally divided into both Jeffrey and Sarah's accounts. As a consequence, the court concluded that because Jeffrey had wrongfully dissipated the entire amount of the refund, it was extant property. Thereafter, the court granted Sarah a monetary award in the amount of $7,000 and further awarded her $60,000 in attorney's fees.

Following the court's judgment of absolute divorce, Jeffrey filed a motion to alter or amend the judgment on October 27, 2011. In response, Sarah filed a motion in opposition and further moved to revise the court's previous judgment on November 16, 2011. The trial court held a hearing on February 21, 2012, and issued a memorandum and order on March 30, 2012, leaving open the issue of whether Sarah was entitled to additional attorney's fees for the post-trial motions. As a result, the court held an additional hearing on April 13, 2012, denying her request for additional fees. Jeffrey noted a timely appeal to this Court, to which Sarah responded by filing a timely cross-appeal.

Additional pertinent facts with be provided infra.

II.

DISCUSSION

(A) The Legal and Physical Custody of the Parties' Minor Child.

After granting the parties' request for an absolute divorce and ordering that Sarah's maiden name be restored, the circuit court addressed the issue of child custody in its oral opinion, stating:

[Sarah's counsel] has said to me that because [Jeffrey] has exhibited the behavior that I've already spoken about before the trial, during the trial and the like. That I should not award him with the joint custody that he's requesting.

And I believe it was something to the effect that if, you know, is the kind of character, the person with this kind of character that should have the joint custody with the child. And when I thought about this and literally I had not made up my mind about anything, until I heard you all argue.

So I'm back there thinking about it. And part of me initially said, you know, yeah. She's kind of right, because that's a character flaw. A lot of what I've seen here is character flaw. But if I did that who would I be punishing? Would I punish [Jeffrey]?

But who am I to be concerned about when I'm talking about custody? It's Grant. And then also if I did that it would punish Grant. And I'm not willing to make him suffer. He has, regardless of what your flaws or individual flaws are[,] I think he has great parents. Regardless to what your individual flaws may be.

I can address those in another way. But as far as [G]rant is concerned[,] he gets the best of both of you. As much as the other witnesses tried when they came in, and when it came down to it, each of them said I've got concerns about him, but they're fit, and they're proper and they love their son.

And even when the other person testified concerning the parenting if you would of the other, it wasn't a whole lot that you all could say about, that was negative about the parenting, because it wasn't. Each of you are a good parent. Your character flaws show up when you deal with each other, but not when you deal with Grant.

And so when it comes to custody, this Court believes[,] and as much as I don't like to split children down the middle, it has been working, it's not broken. Joint custody I am going to grant. Physical joint custody with Grant. And I'm going to address some other—we're going to change some issues concerning the holidays and the like, and we'll take about that in a moment.

But I just want to get the decision part out of the way, and we'll go back and tweak some of the other things. Each of you talked about, or you both said joint legal custody would be acceptable. And I, the concern that I have is that you all don't communicate well.

That's a concern that I have, but you've asked for, or you've agreed to a parent—a parental—a parent coordinator, sorry. You've agreed to a parent coordinator. And I think that that [sic] is the best way to do it....

And the reason, short of your inability to communicate with each other, I have to deal with, certainly the character and reputation of the parents. I think short of what you all exhibit towards each other, as I said I think that each of you are—yeah—other persons that came here to testify on your behalf, the proffers that I received.

They each find that you all are good people. Nobody has said that you're horrible people. One individual may not have liked how somebody looked at them, or how they didn't speak, or they did speak. Not that you're bad people. So[,] I can't say there's anything wrong with your character, or your reputation that gives this Court any concern when it comes to custody.

The psychological and physical fitness of each parent, I find that you all are certainly equal in that matter. And so[,] therefore, I don't think that gets in the way. The desire of the parents and the content of any agreement between them, you all had one agreement concerning just the—that was financial more than anything else, the investment and the college tuition.

But you at least desire, each of you desires to be a good parent to Grant. And that's what I think is very, very important. Your willingness to share the custody, I know that one side wanted, [Sarah] wanted sole custody with joint legal, but sole physical.

But [Jeffrey] wanted joint physical, as well as joint legal custody. So there's a little bit, you know, kind of plus and minus I did there with the willingness part of this, the factors that I look at. But not so much so that [ ] it would make me override that the consent agreement that you all entered into has been working. It has been.

The ability for you all, I talked about the communicating, we're going to settle that with the parent coordinator. The potential of maintaining natural family relations, I believe that whether the child is with [Jeffrey], or with [Sarah], ... they will have the ability commune with their families on an equal basis. Not just [Sarah] and not just [Jeffrey], but with grandparents, with cousins, and with aunts and uncles and the like on each side.

He's too young to tell me what his preference is, so we can't even consider that. The material opportunities that would affect the child's future, you all are more, as I indicated, extremely blessed to provide material opportunities.

Certainly [Jeffrey] makes more money than [Sarah] does. Whether that's, you know, in my opinion sometimes it's a choice that we make as to, you know, whether or not you make a lot of money, and sometimes it's not. Sometimes it's the best job you can get, and you hold onto that until you can do better. That's just the way of the world.

The age, health and sex of the child, and Grant's very young. Not quite two, almost two, not quite. And his health is, from what I understand now is great. The only time that I think you all had the chance to bring it together was when he was ill.

Yeah, and that was really when I thought, that was the one time that you all actually came together. And a lot of weight for a little boy. He couldn't even hold you together. So, you know, it only lasted for awhile. But that was the time in which you all[,] sort of, had a meeting of the minds if you will.

The suitability of your residences, I have—they're certainly very suitable. I have no concerns one way or the other. I think again, he's a blessed little boy to have two residences, and the two that are as—that they're safe. And that he has a place where he can grow, and he can thrive. And so I think they're very suitable.

How long—you want me to consider how long the child's been separated from one parent or the next. You all for the last year, all right, it's been 13 months maybe, something like that been [sic] sharing him back and forth. So he certainly hasn't had to be separated from either one of you to any extent to where it would damage him when he wasn't with you, or that he would resist going with you, because he's not familiar with you.

There's been no voluntary abandonment for me to consider. His relationship with each of you, everyone comes in and testifies to each of you. And said how Grant loves you back, as much as you all love him. And that's important, as well.

You all live [in] very close proximity to each other[. S]o[,] that's not like someone has to travel a long, long distance to get to him and the like, but you do live very, very close. There's nothing, no schools I have to worry about, whether he lives—he's going to be able to go to school or he's not. I don't have to worry about that.

The demands of each parent's employment. And there's a lot of talk about that. And in my reviewing and listening to the evidence, I think each of you, the way it came out can work as much as you want to work. In that sense of flexibility. You can work from home, when you want to work from home. You can go to work.

You spend some hours when you travel, some hours when you travel. The Army—the Jag Reserve that [Jeffrey], that may take him away a little bit more. And I'm going to address that period of time with the custody.

.... The age and number of children involved, only one child that's involved in this matter. Sincerity, motivation of the parent's request, you all are more sincere than anybody. And I think that the legal fees bear that out, that you've been very serious about your requests, and the best interest of Grant, which is the final thing that I must consider.

And as I said, I think that Grant deserves the best of both of you. I think that in the last 13 months, or how—I say 13 months, how many months are we talking about a year?.... That he has gotten the best of both of you. Nobody has testified to me about anything that's been less.

When Grant—when it was concerning [ ] Grant, ... you all gave your best. And that you all were, for the most part on your best behavior, when you all were doing the exchanges....

(emphasis added).

Following the court's continued discussion of how Grant's holidays and vacation schedule would be divided between Sarah and Jeffrey, the Court considered the matter of a tie-breaking authority with the parties' counsel:

THE COURT: Yes, and I am holding—I don't know what I want to do. But I know what I have to do. I have to give a tie[-]breaker. I mean[,] that's the hard part, because I just wish that you guys could talk, but you don't.

Is there a way, and I've seen this before, [counsel], where the parties cannot come to an agreement. That they have to seek a mediator, I've seen that done before.

[Sarah's counsel]: Or with the parent coordinator bona fide efforts to try to resolve it, and if not then a tie[-]breaker's allowed.

THE COURT: Okay, okay. I can't make the parent coordinator do the tie[-]breaking authority can I? No.

[Jeffrey's counsel]: Unfortunately, Your Honor, you can't.

THE COURT: Okay, all right. But the parent coordinator will be used for that particular reason, for communication between the parents. So there must be some bona fide effort. And then [Sarah] will have the tie[-]breaking authority.

(emphasis added).

On appeal, Jeffrey contends that the trial court abused its discretion when it ordered joint legal custody, with tie-breaking authority to Sarah. Specifically, he asserts that the court abused its discretion "because [the court] gave no reason for the decision, because it was not supported by the evidence, and because there was no finding that it was in the son's best interest." Thus, he argues that, "[i]n essence, the court gave legal custody to [Sarah.]"

Conversely, Sarah argues that while "the court had reason to grant sole custody" to her, the trial court properly exercised its discretion when it ordered joint legal custody of their minor child with tie-breaking authority to her, because the court's order of a bona fide effort to agree via the parent coordinator safeguards Grant's best interest. Nevertheless, Sarah further contends that the circuit court erred when it ordered joint physical custody for two reasons. First, she asserts that "[t]he trial court failed to give weight to [Jeffrey's] abuse of the legal system in his effort to obtain custody" of their minor child. Second, she attests that "[t]he court further failed to give adequate weight to the best interest[ ] of the child," which, she insists, is not "served here by joint physical custody." We conclude, however, that the circuit court properly exercised its discretion.

Preliminarily, we note that this Court reviews child custody determinations utilizing three interrelated standards of review. Gillespie v. Gillespie, 206 Md.App. 146, 170, 47 A.3d 1018 (2012) (affirming the circuit court's modification of physical custody by granting significantly more access to the father and concluding there was no error in modifying the joint legal custody decree by granting the father tie-breaking authority in the event of an impasse). The Court of Appeals described the three interrelated standards in the case of In re Yve S., 373 Md. 551, 819 A.2d 1030 (2003):

.... [W]e point out three distinct aspects of review in child custody disputes. When the appellate court scrutinizes factual findings, the clearly erroneous standard of [Md. 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. at 586, 819 A.2d 1030. Therefore, the reviewing court gives "due regard ... to the opportunity of the lower court to judge the credibility of the witnesses." Id. at 584, 819 A.2d 1030. Further, we acknowledge that "it is within the sound discretion of the [trial court] to award custody according to the exigencies of each case, and ... a reviewing court may interfere with such a determination only on a clear showing of abuse of that discretion. Such broad discretion is vested in the [trial court] because only [it] sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with the child; [it] is in a far better position than is an appellate court, which has only a cold record before it, to weigh the evidence and determine what disposition will best promote the welfare of the minor" child. Id. at 585–86, 819 A.2d 1030.

It 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. Gillespie, 206 Md.App. at 173, 47 A.3d 1018 (citations omitted). See also Bienenfeld v. Bennett–White, 91 Md.App. 488, 503, 605 A.2d 172 (1992) ("It is well established that child custody determinations be made by careful examination of facts on a case-by-case basis."); Montgomery Cnty. v. Sanders, 38 Md.App. 406, 419, 381 A.2d 1154 (1978) (the best interest of the child varies with each individual case). "Courts are not limited or bound to consideration of any exhaustive list of factors in applying the best interest standard, but possess a wide discretion concomitant with their 'plenary authority to determine any question concerning the welfare of children within their jurisdiction[.]' " Bienenfeld, 91 Md.App. at 503–04, 605 A.2d 172 (internal citation omitted) (quoting Kennedy v. Kennedy, 55 Md.App. 299, 310, 462 A.2d 1208 (1983)). Nonetheless, Maryland courts have provided a list of factors that the trial court may use in rendering its custodial determination. These factors include:

[A]mong other things, the fitness of the persons seeking custody, the adaptability of the prospective custodian to the task, the age, sex and health of the child, the physical, spiritual and moral well-being of the child, the environment and surroundings in which the child will be reared, the influences likely to be exerted on the child, and, if he or she is old enough to make a rationale choice, the preference of the child.

Wagner v. Wagner, 109 Md.App. 1, 39, 674 A.2d 1 (1996) (citing Hild v. Hild, 221 Md. 349, 357, 157 A.2d 442 (1960), and Kramer v. Kramer, 26 Md.App. 620, 623, 339 A.2d 328 (1975)), quoted in Gillespie, 206 Md.App. at 173, 47 A.3d 1018. "At best we can discuss the major factors that should be considered in determining whether joint custody is appropriate, but in doing so we recognize that none has talismanic qualities and that no single list of criteria will satisfy the demands of every case." Taylor v. Taylor, 306 Md. 290, 303, 508 A.2d 964 (1986) (discussing joint custody considerations). Accordingly, "[t]he best interest of the child is therefore not considered as one of many factors, but as the objective to which virtually all other factors speak." Id.

Indeed, there are specific factors particularly relevant to a consideration of joint custody: (1) the capacity of the parents to communicate and reach shared decisions affecting the child's welfare; (2) the willingness of parents to share custody; (3) the fitness of the parents; (4) the relationship established between the child and each parent; (5) the preference of the child; (6) the potential disruption of child's social and school life; (7) the geographic proximity of the parental homes; (8) the demands of each parents' employment; (9) the age and number of children; (10) the sincerity of the parents' request for joint custody; (11) the financial status of the parents; (12) the impact on state or federal assistance; (13) the benefit to the parents; and (14) any other relevant factors to be considered. Taylor, 306 Md. at 304–11, 508 A.2d 964. These factors, however, are "in no way intended to minimize the importance of considering all factors and all options before arriving at a decision." Id. at 303, 508 A.2d 964 (emphasis added).

To be sure, the capacity of the parties to communicate and reach shared decisions regarding the children's welfare is of paramount importance. Id. ("This is clearly the most important factor in the determination of whether an award of joint legal custody is appropriate...."). See also Gillespie, 206 Md.App. at 173, 47 A.3d 1018. As a consequence, "[r]arely, if ever, should joint legal custody be awarded in the absence of a record of mature conduct on the part of the parents evidencing an ability to effectively communicate with each other concerning the best interest of the child, and then only when it is possible to make a finding of a strong potential for such conduct in the future" Taylor, 306 Md. at 304, 508 A.2d 964.

We caution, however, that this does not require the parents to agree on every aspect of parenting, "but their views should not be so widely divergent or so inflexibly maintained as to forecast the probability of continuing disagreement on important matters." Id. at 305–06, 508 A.2d 964. See also Barton v. Hirshberg, 137 Md.App. 1, 25, 767 A.2d 874 (2001). Therefore, at a minimum, the parties must maintain "[a] sense of respect for one another as parents, despite the disappointment in each other as marriage partners. Each [must] appreciate[ ] the value of the other to the child, and [maintain] sensitiv[ity] to the possible loss of a parent-child relationship." Taylor, 306 Md. at 306, 508 A.2d 964 (citing S. Steinman, Joint Custody: What We Know, What We Have Yet to Learn, and the Judicial and Legislative Implications, 16 U.C.D.L.Rev. 739, 745 (1983)).

Ordinarily, the best evidence of compatibility with this criterion will be the past conduct or "track record" of the parties. Taylor, 306 Md. at 307, 508 A.2d 964. "We recognize, however, that the tensions of separation and litigation will sometimes produce bitterness and lack of ability to cooperate or agree." Id. Thus, "[t]he trial judge will have to evaluate whether this is a temporary condition, very likely to abate upon resolution of the issues, or whether it is more permanent in nature." Id. "Blind hope that a joint custody agreement will succeed, or that forcing the responsibility of joint decision-making upon the warring parents will bring peace, is not acceptable." Id. Therefore, "[i]n the unusual case where the trial judge concludes that joint legal custody is appropriate notwithstanding the absence of a 'track record' of willingness and ability on the part of the parents to cooperate in making decisions dealing with the child's welfare, the trial judge must articulate fully the reasons that support that conclusion." Id.

The instant record contains evidence of the parties' ability to cooperate in matters relating to Grant. First, there was the existence of an agreement for joint custody pursuant to a consent order prior to trial. See Barton, 137 Md.App. at 26, 767 A.2d 874. Sarah argues before us, as she did before the trial court, however, that she "entered into the [i]nterim [c]onsent [a]greement in the belief that the joint custody schedule would be temporary." She further asserts that she only acquiesced "to this short-term solution on the courthouse steps in fear that she might lose custody entirely in light of the entry of the fraudulently obtained [i]nterim [p]rotective [o]rder" Jeffrey had obtained against her. Notwithstanding these assertions, she offered other testimony at trial suggesting that both she and Jeffrey "should participate fully in Grant's life and his development and also [in] the decisions affecting his life and development and well-being." She additionally noted a willingness to adapt to circumstances when both she and her husband are working. Moreover, Jeffrey's testimony at trial additionally recognizes the parties' ability to work in tandem to address Grant's needs.

This evidence indicates that the parties have been able to communicate and reach decisions regarding Grant in the past. Admittedly, tensions and disagreements between the parties have escalated. Nonetheless, after hearing all the testimony and after judging the credibility and demeanor of the witnesses, the trial court concluded that the parties could resolve their differences and act together in Grant's best interest. As the trial court observed, "when it was concerning [ ] Grant, ... you all gave your best. And that you all were, for the most part on your best behavior, when you all were doing the exchanges."

Further, even assuming arguendo that the record reflects the parties' inability to communicate or cooperate regarding Grant's best interest, the court "articulated fully the reasons that support[ed the] conclusion" that joint physical and legal custody was appropriate through an extensive and thoughtful consideration of all suggested factors. The court specifically noted the parties' flexibility in their employment schedules and their sincerity in providing for Grant's best interest. In sum, the court believed, "that Grant deserves the best of both [Sarah and Jeffrey]." The court believed "that in the last 13 months, or how—I saw 13 months, how many months are we talking about a year?.... That he has gotten the best of both of you. Nobody has testified to me about anything that's been less." The court additionally explained its reasoning in providing Sarah tie-breaking authority and observed that this authority was not to be used cavalierly: "But the parent coordinator will be used for that particular reason, for communication between the parents. So there must be some bona fide effort. And then [Sarah] will have the tie[-]breaking authority."

As a consequence, we find no error or abuse of discretion in the circuit court's grant of joint legal and physical custody. The circuit court's decision was not "well removed from any center mark imagined by the reviewing court and beyond the fringe of what the court deems minimally acceptable." In re Yve S., 373 Md. at 583–84, 819 A.2d 1030. Therefore, we affirm the circuit court's order of joint legal and physical custody.

(B) The Calculation of Child Support.

Following the circuit court's custodial determination, the court proceeded to address the issue of child support. Specifically, the court stated:

.... So[,] that being said, the child support which I will follow right up with this.

And my figures came out different from everybody's figures. And this is where people are going to stop smiling at me, and stop shaking their head in agreement, and I know that so I won't look at you.

Both sides agree that [Sarah's] salary per month is $5,695. Where you all differed was as to what [Jeffrey's] salary is. And I think that had [Jeffrey] been forthcoming about a number of things, we wouldn't have that question. I don't know whether that military salary is more or less than what that one document says that it is.

I can't imagine, sir, that since January the 1[st], 2001 and September the 30 [th], 2011 that you could not have gotten one document to show this [c]ourt what it is that you were making this year. So as I said when you hide from me, it makes me wonder what you're hiding from me.

And so where I won't punish you when it comes to Grant. And punish is a harsh word, I don't even really mean it in that term, but I guess what I mean is when I look at what I have to consider across the [b]oard, there is some way in which that has to be a sanction that I have to look at it, in a light that makes it more beneficial or equitable if you will for both parties.

So I am taking the salary that was on your W–2 form of $23,052. I know that that [sic] includes the investment incentive, I know that. I know it and I'm doing that on purpose, because I believe that a lot of this—hold that, take it back. $23,052 is what the [c]ourt came up with and believes that [is] what [Jeffrey's] salary is.

The problem is when I look at it on a shared basis, I did not include any allowance for a childcare [provider]. And I'll tell you why, this [is] 50/50 [. W]hen the child's in your care[,] you pay for childcare. When the child is in your care and you need childcare, you pay for it. That's how this [c]ourt looks at it.

The $140 will certainly be put in dad's column when it comes to the medical insurance. But that was the only thing that I put in the column. And I don't believe that either of the attorneys, short of the child care included anything else in their columns, other than the salaries.

This is what the guidelines tell me. That the child support based on the shared custody, comes out to be $2,492 a month. That's what it comes out to be. And I don't know, it didn't make sense to me, because I looked at [Sarah's] proposal, that was based on the shared [custody].

It was—I mean based on sole custody, physical custody to [Sarah], I would've expected the numbers to have been higher, than what they were for shared. I put the numbers in, that's what they came out to be.

And if anybody wants to say there's anything I'm doing wrong with it, I'm happy to hear it. But I can only plug the numbers in and it comes out to what it is.

(emphasis added).

Upon the court's invitation, the parties' counsel both indicated that the schedule on which the court had relied did not have equal amounts of overnights between Sarah and Jeffrey. After correcting the number, the circuit court concluded:

Okay, that you all. $1,651 is the monthly child support. Let me go to my calculator. The date of filing that this [c]ourt had, and I'm doing it as to the date that [Sarah] filed. Now this is the date that I'm using, September 21, 2010. Is that correct?

Okay. So actually, we're taking about one year? And I'm dealing with the arrearages at this point. When I multiply 12, which is one year, it's $19,812. And that is before I subtract the credit that he is due. I had the credit at $4,806?

So I have the arrearages at $15,006. Now, [Jeffrey], I'll tell you one of the things that did disturb this [c]ourt in hearing it, even though you were not under an order to pay child support. It would've gone such a long way, had you taken that responsibility a lot earlier.

And certainly the $500 and some odd dollars that was given, it was $534 that was given to [Sarah] during the time that—pending trial, between January and today's date, was offset by the fact that she had to pay the—and agreed to pay for the Touareg. So really she came out with $5 a month.

In essence, I'm giving you credit for what you paid, but in a essence, that's kind of what she ended up with, it was like $5 once she paid the car note. It was $5 that she had. So you weren't under the order, but this is the child that you tell me that you—this is your man. This is your little man. And so I took that into consideration when I used the figure that I used.

I think the figures are legitimate. I know there was a question about the investment that was included in there. I believe that certainly your potential for this year getting the bonuses that you have gotten in the past. I certainly can't imagine that those won't happen again.

And when you look at the information that I was given, this is the figure that the [c]ourt believes is the actual figure of your salary, at least as much as I could put together about your salary, since there's a piece of it that I don't know.

(emphasis added). Following the court's oral opinion and order, Jeffrey petitioned the court for rehearing to alter or amend its judgment. Specifically, Jeffrey argued that the circuit court "erred in the determination of [his] income ... which resulted in an error in the calculation of [his] child support obligation and ... arrears." In response, Sarah moved for an increase in child support and requested the circuit court to modify Jeffrey's income to include his previously unreported rental income.

The trial court held a hearing on February 21, 2012. After considering the parties' arguments, the court denied Jeffrey's request to amend the judgment of child support and issued a memorandum opinion and order on March 30, 2012, providing:

[Jeffrey] requests that this court amend its judgment to reflect that [his] actual monthly income is $18,295 and not $23,052. [Jeffrey] alleges that in calculating [his] child support and arrearage payments, the court included unrealized income in [his] monthly salary. [He] argues that the income received from the Allegis Group on Plaintiff's W[-]2 was unrealized income. For further guidance, [Jeffrey] sugges[ts] that the Allegis Plan illustrates that [he] did not realize this income. [He] states that his correct monthly income is $18,295. Accordingly, per [Jeffrey], the monthly child support should be amended to $977 and the arrears should be amended to $6,918.

In reviewing the Allegis Group Plan[,] it is clear to this court that the Allegis Group is a complicated investment vehicle. During trial, [Jeffrey] failed to provide the testimony necessary to support his claim that the $23,052 monthly salary is partially unrealized income based on how the Allegis Group investment vehicle is designed. The time to offer this testimony would have been at trial. [Jeffrey] likened the Allegis Plan to the S Corporation at issue in Walker v. Grow, 170 Md.App. 255 [907 A.2d 255] (2006). The facts in Walker v. Grow indicated that the Appellee did not technically receive all the income reported on his tax returns. In that case, as in this case before this court, the court had before it someone with a "somewhat complex business and personal financial picture." Unlike the present case, expert testimony was offered to the trial court in Walker v [ .] gro[ w ] to assist the trier of fact to understand the evidence and to determine a fact in issue. An expert or a witness familiar with the design of the Allegis Plan would have been helpful to this court in determining if [Jeffrey] actually received income from Allegis. This testimony was not presented.

.... Considering the fact that Allegis is not an S Corporation, no expert testimony was presented during trial and that this court questions the credibility of [Jeffrey] as it concerns his income, this court is not persuaded to rely on [Jeffrey's] assertion alone.

The court did not find [Jeffrey] to be a credible witness during the trial on the merits, especially as to his testimony concerning his income. The court finds that [he] has not been credible and forthcoming about his income in that [he] refuse[s] to respond to [Sarah's] request for documents detailing his income from all sources in discovery. [Jeffrey] failed to respond to the court's order compelling discovery and during depositions[. He] failed to refused to produce documents as to all his income. Trial testimony revealed that [Sarah] willfully (and wrongfully) cashed the 2009 joint income tax return and retained the funds. Additionally [Jeffrey] points to his 2010 tax return to show his actual income. However, during the hearing on the motion it was brought to this court's attention that [he] failed to include on his income tax statement the rental income from his real property. Again, this is a credibility issue on the part of [Jeffrey]. For all of the above reasons, this court cannot rely on [his] testimony concerning his salary. Therefore, the court denies [Jeffrey's] request to alter and amend the order by reducing the income to $18,295. This court also denies the request to adjust the arrears to the amount of $6,918.

(footnotes omitted) (emphasis in added).

In addition, the circuit court granted Sarah's request to revise the guidelines to reflect an income from Jeffrey's rental property in the amount of $1,800 per month in rent. As a consequence, Jeffrey's monthly child support obligation was increased from $1,651 per month to $1,653 per month.

Before this Court, Jeffrey asserts that the circuit court erred when it calculated the child support owed to Grant. Specifically, Jeffrey contends that "[t]he trial court's inclusion of [his] [i]ncentive [i]nvestment [p]lan and gross rental income ... to calculate child support was clearly erroneous and an abuse of discretion." Sarah counters Jeffrey's argument by asserting that circuit court properly exercised its discretion in calculating Jeffrey's child support obligations because Jeffrey "was given ample opportunity to present evidence[,] including expert testimony to explain the overly complicated Allegis Group, Inc.[,] compensation plan." She further argues that "[r]egardless, the parties' income is above the child support guidelines established by statute and the [court] did not err in including [Jeffrey's] [i]ncentive [i]nvestment [p]lan earnings in the calculation of child support as the court clearly questioned [Jeffrey's] veracity when presenting his financial picture at trial."

Preliminarily, we note that "[t]he parents of a child are his [or her] natural guardians and, quite apart from the moral obligations of parenthood, owe the child a legal, statutory obligation of support." Walker v. Grow, 170 Md.App. 255, 265, 907 A.2d 255 (2006) (quoting Lacy v. Arvin, 140 Md.App. 412, 422, 780 A.2d 1180 (2001)). Therefore, in addressing these contentions, it is useful to put them in context by reviewing the purpose of the child support guidelines—notwithstanding our ...


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