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Fitzzaland v. Zahn

Court of Special Appeals of Maryland

August 1, 2014

BERYL FITZZALAND a/ka/ BERYL ZAHN
v.
JEFFREY ZAHN

Page 185

Appeal from the Circuit Court for Frederick County, William R. Nicklas, Judge.

Submitted by: Keith R. Havens of Rockville, MD for Appellant.

Submitted by: Laura N. Venezia (Conklyn & Associates on the brief) all of Frederick, MD for Appellee.

Panel: Woodward, Kehoe, Hotten, JJ. Opinion by Woodward, J.

OPINION

Page 186

[218 Md.App. 316] Woodward, J.

Douglas Henry Zahn (" Douglas" ), born December 1, 1993, and Thomas Andrew Zahn (" Thomas" ), born January 16, 1997, are the children of Beryl Zahn, a/k/a Beryl Fitzzaland, appellant, and Jeffrey Zahn, appellee. Appellant and appellee were divorced on November 26, 2001. The divorce judgment awarded appellant and appellee joint legal custody of Douglas and Thomas, and gave appellee sole physical custody of the children, with liberal visitation for appellant. Child support was not awarded to either party.

From the fall of 2002 until 2010, appellant lived in the State of Washington. While appellant lived in Washington, Douglas was diagnosed with an autism spectrum disorder, anxiety, oppositional defiant disorder (" ODD" ), and attention deficit/hyperactivity disorder (" ADHD" ). Douglas and Thomas had limited contact with their mother while she resided in Washington, but upon her return to Maryland in 2010, appellant and appellee established an informal visitation schedule.

On April 30, 2012, appellee filed a Motion for Child Support in the Circuit Court for Frederick County. Appellee asked the court to: (1) find that Douglas was a destitute adult child; (2) order appellant to pay child support for Douglas and Thomas retroactive to the date of filing the motion; (3) order appellant to contribute to the children's extraordinary medical and other expenses retroactive to the date of filing the motion, and (4) order appellant to pay appellee's reasonable attorney's fees. Appellant opposed the motion, and later filed a motion requesting that she be awarded custody of Thomas.

After four days of trial, the circuit court, among other things, denied appellant's motion to change custody of Thomas, determined that Douglas was a destitute adult child, and ordered appellant to pay appellee child support for both children and attorney's fees. Appellant appealed the circuit court's decision and presents three questions for our review, which we have slightly rephrased:

1. Did the circuit court err in determining that the parties' son, Douglas, is a destitute adult child?

[218 Md.App. 317] 2. Did the circuit court err in awarding child support for Douglas to appellee?

Page 187

3. Did the circuit court err in awarding attorney's fees to appellee?

For the reasons set forth herein, we answer each of these questions in the negative and affirm the judgment of the circuit court.

BACKGROUND

On November 26, 2001, the circuit court entered a judgment of absolute divorce in favor of appellee against appellant. The judgment gave appellant and appellee joint legal custody of their children, Douglas and Thomas. Appellee was awarded sole physical custody of the children, and appellant received reasonable and liberal visitation. The divorce judgment did not include any child support requirements. Appellant was living in Virginia at the time of the divorce.

Sometime in the fall of 2002, appellant left Virginia and moved to the State of Washington. Appellant remained in Washington for eight years, and during that time had limited contact with Douglas and Thomas, occasionally speaking with them on the phone and exchanging emails. Douglas and Thomas never visited appellant in Washington, but appellant visited Maryland twice, one time staying at appellee's home for part of her visit. In 2010, appellant relocated to Maryland, and the parties established an informal visitation schedule allowing Douglas and Thomas to see appellant every other weekend.

During the time appellant lived in Washington, Douglas was diagnosed with an autism spectrum disorder, anxiety, ODD, and ADHD.[1] Douglas was placed in an Individualized Education Program (" IEP" ) in school, in which he was allowed extra time to complete assignments and was permitted to have [218 Md.App. 318] a scribe take notes for him and help him organize and complete his work. Douglas was enrolled in some honors classes in high school, and did well in school until his junior or senior year when his IEP ended. Without the additional support and supervision provided by the IEP, Douglas' grades dropped significantly.

In August 2011, appellee and Douglas filled out an application for Douglas to participate in services offered by the Maryland Department of Education, Division of Rehabilitative Services (" DORS" ). DORS assists persons with disabilities to choose and maintain jobs, and provides various other services and counseling based on an individual's needs. On September 23, 2011, Douglas completed an initial assessment with vocational rehabilitation specialist, Ilana Novitzky, who determined that Douglas was qualified for DORS services. Novitzky categorized Douglas as a person with " the most severe disability," meaning that three or more areas of Douglas' life were affected by his disabilities, including social behavior and communication skills, life and independent living skills, as well as self-direction, planning, and organization.

On June 12, 2012, Douglas graduated from high school. The summer after his graduation, Douglas worked at appellee's office. On more than one occasion, appellee found Douglas playing video games in the bathroom instead of working, and, according to appellee, Douglas needed to supervised constantly in order for him to complete a task. Although appellee paid Douglas for his work, Douglas did not know how much money was in his bank account, and did not think that he could manage his own money. Douglas confirmed

Page 188

such inability to manage money by spending the money he made over the summer on video games and applications for his computer and iPad.

In September 2012, Douglas began a community living skills training program at DORS' s Workforce Technology Center (" WTC" ) in Baltimore. The center trains students in life skills including cooking, cleaning, basic money management, and social skills, and provides a career assessment designed to [218 Md.App. 319] help the students determine what employment they could realistically attain. The career assessment showed that Douglas would need accommodations for successful employment, and he eventually received the help of a job coach in applying and interviewing for work. While Douglas was attending the WTC, he was placed on a behavior plan after having social interaction problems and offending others at the center. He was warned that, if another inappropriate or offensive conversation occurred, he would not be permitted to complete the program. In December 2012, however, Douglas completed the WTC program.

In January 2013, Douglas began receiving a new service through DORS called employment development skills (" EDS" ), in which he worked at Goodwill as a way to develop his employment experience. The same social and interpersonal problems arose at Goodwill as had occurred at the WTC, and the store's manager had to speak with Douglas on a regular basis about his inappropriate social interactions. Douglas also arrived late to his job at Goodwill " almost every time he would get there."

Douglas was able to obtain a driving learner's permit with the help of DORS services, and received assistance from a job coach. As of April 2013, however, Douglas stopped receiving DORS benefits, because appellee had not yet paid the complete DORS bill from the previous year, and Douglas was ineligible for new services until payment was complete. DORS cost appellee $3,400.00 for a year of services.

Douglas currently resides at appellee's home. Douglas is responsible for his own personal hygiene, but cannot have needed orthodontic work performed, because he does not brush his teeth enough. Douglas is also responsible for taking his medication daily, but admits that he sometimes forgets and that appellee or his stepmother must remind him to take it. Appellee also has to remind Douglas to do his chores and to complete those chores when he leaves them unfinished. Although Douglas interviewed for at least three jobs, he was not [218 Md.App. 320] employed at the time of the hearing on appellee's Motion for Child Support.

On April 30, 2012, appellee filed a Motion for Child Support in the circuit court. He asked the court to, among other things: (1) find Douglas to be a destitute adult child; (2) order appellant to pay child support for both children retroactive to the date of filing the motion; (3) order appellant to contribute to the children's extraordinary medical and other expenses retroactive to the date of filing the motion, and (4) order appellant to pay appellee's reasonable attorney's fees. On June 5, 2012, appellant filed an answer to appellee's Motion for Child Support, and subsequently amended her answer on June 11, 2012.

Trial on appellee's Motion for Child Support began on March 12, 2013, with appellee presenting the testimony of Novitzky as an expert in vocational rehabilitation. The case could not be concluded that day, and was continued to April 25, 2013. Prior to the second day of trial, on March 20, 2013, appellant filed a Petition to Enforce Agreement, or Alternatively, to Modify Custody/Visitation (" Custody Petition" ).

Page 189

In the Custody Petition, appellant requested that the circuit court enforce the parties' original Marital Settlement Agreement that gave the parties joint physical custody of Douglas and Thomas and required appellee to pay appellant child support. Alternatively, she requested that the court grant her sole or joint custody of Thomas, establish a formal access schedule for her to see Douglas and Thomas, and award her attorney's fees.

On March 26, 2013, appellee filed an Opposition to [Appellant's] Petition to Enforce Agreement, or Alternatively to Modify Custody/Visitation (" Opposition" ). Appellee asked that appellant's Custody Petition be denied, that appellee be awarded attorney's fees, and that the trial scheduled for April 25, 2013 go forward. The Opposition also asserted that appellant's motion " was filed solely as an attempt to avoid payment of child support."

[218 Md.App. 321] The same day, appellee filed a Motion to Dismiss [Appellant's] Petition to Enforce Agreement, or Alternatively to Modify Custody/Visitation (" Motion to Dismiss" ). In the Motion to Dismiss, appellee argued that the Marital Settlement Agreement was superceded by the November 21, 2001 divorce judgment, noting that the judgment incorporated the Marital Settlement Agreement except for those provisions relating to Douglas and Thomas. Appellee also argued that there had not been " any material changes in circumstances affecting Thomas' (and Douglas') well-being" that would warrant a change in custody. On April 9, 2013, appellant filed a response to appellee's Motion to Dismiss.

On April 25, 2013, trial on appellee's Motion for Child Support resumed. At that time, the circuit court also considered the motions the parties filed after the March 12, 2013 hearing. The court denied appellee's Motion to Dismiss, and appellee decided to litigate appellant's Custody Petition in the same proceeding as his Motion for Child Support.

The parties were again unable to conclude the trial on April 25, 2013, and the case was continued to May 1, 2013. On May 1, 2013, testimony was completed, and trial counsel presented closing arguments on May 2, 2013. That same day, May 2, 2013, the circuit court orally presented its findings of fact and conclusions of law. In pertinent part, the court held that (1) circumstances had not changed to warrant a change of physical or legal custody of Thomas, but that appellee would have final decision-making authority, (2) Douglas was a destitute adult child, (3) appellant would pay child support to appellee in the amount of $850.00 per month for both children, to be withheld from her earnings as of May 1, 2013, (4) appellant owed child support arrears in the amount of $10,200.00, which could be paid by adding $50.00 per month to appellant's child support payments and (5) appellant would pay $7,500.00 to appellee in attorney's fees. The court's written order was entered June 20, 2013.

Appellant noted her appeal to this Court on May 31, 2013, and filed a supplemental notice of appeal on June 28, 2012, after the circuit ...


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