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In re Guardianship of Zealand W.

Court of Special Appeals of Maryland

October 29, 2014

IN RE GUARDIANSHIP OF ZEALAND W. AND SOPHIA W

Appeal from the Circuit Court for Montgomery County. Nelson W. Rupp, Judge.

Submitted by: James S. Maxwell & Joel R. Zuckerman (Maxwell Barke & Zuckerman, LLC on the brief) all of Rockville, MD for Appellant.

Submitted by: No brief filed for Appellee.

Graeff, Arthur, Salmon, James P., (Retired, Specially Assigned), JJ. Opinion by Salmon, J.

OPINION

Page 838

[220 Md.App. 69] Salmon, J.

This interlocutory appeal originated in a guardianship case tat involves Zealand W. (born September 9, 2000) and Zealand's sister, Sophia W. (born January 11, 2003). The appellant in this case is Susan W., the mother of Zealand and Sophia. The appellee is Conway Tattersall [" Mr. Tattersall" ].

On September 20, 2012, David W., the father of Zealand and Sophia, died in Montgomery County, Maryland. Five days after David W.'s death, his first cousin, Mr. Tattersall, filed a guardianship action in the Circuit Court for Montgomery County. Mr. Tattersall alleged that Susan W. was unfit to be the guardian of her children. In his petition, Mr. Tattersall asserted that the Circuit Court for Montgomery County had a right to appoint a guardian of the person of both Zealand and Sophia pursuant to Md. Code (2011 Repl. Vol.), Estates & Trusts Article, section 13-702(a), which provides:

(a) General Rule - If neither parent is serving as guardian of the person and no testamentary appointment has been made, on petition by any person interested in the welfare of the minor, and after notice and hearing, the court may appoint a guardian of the person of an unmarried minor. If the minor has attained his 14th birthday, and if the person otherwise is qualified, the court shall appoint a person designated by the minor, unless the decision is not in the best interests of the minor. This section may not be construed to require court appointment of a guardian of the person of a minor if there is no good reason, such as a dispute, for a court appointment.

(Emphasis added).

Mr. Tattersall contends that section 13-702(a) allowed the court to appoint a guardian because neither parent was serving as guardian of the children and no testamentary appointment had been made. In this appeal, Susan W. contends that section 13-702(a) did not grant the circuit court " subject matter" jurisdiction to appoint a guardian of the person of her minor children because, after the death of David W., she, as a matter of law, was serving as the guardian of the person of the [220 Md.App. 70] children. In support of her position,

Page 839

Susan W. primarily relies on the case of In re: Adoption/Guardianship of Tracy K., 434 Md. 198, 73 A.3d 1102 (2013). As a consequence of the circuit court's [alleged] lack of jurisdiction, Susan W. contends that the court erred in signing various interlocutory orders in this case. Recognizing, impliedly at least, that most of the orders signed thus far were interlocutory, and thus not appealable, she focuses on four orders signed by the court that she contends are interlocutory orders from which an appeal may be filed pursuant to Md. Code (2006 Repl. Vol.) Courts & Judicial Proceedings Article (" CJ" ) section 12-303(3). The relevant interlocutory orders are: (1) an order entered on July 25, 2013 directing Susan W. to pay a custody evaluator $5,000; (2) an order entered on August 15, 2013 denying Susan W.'s motion for the issuance of a writ of habeas corpus ; (3) an order entered on October 25, 2013 holding Susan W. in contempt for failure to pay $5,000 to the custody evaluator; and (4) an order dated October 25, 2013, entering judgment in the amount of $5,000 against Susan W.

Mr. Tattersall did not file a brief with this Court. Instead, Mr. Tattersall, by counsel, filed on June 6, 2014, a " line" addressed to the clerk of this Court. The " line" advised the clerk that Mr. Tattersall " opposes the [a]ppeal and the brief filed by Susan W." In support of that " line," counsel for Mr. Tattersall relied upon pleadings that Mr. Tattersall, along with the Best Interest Attorney for the children, filed in opposition to Susan W.'s motion to dismiss the case for lack of subject matter jurisdiction.

For the reasons set forth below, we conclude that although the circuit court did have subject matter jurisdiction to appoint a guardian, the court did not appropriately exercise that jurisdiction in this case. Because the court did not appropriately exercise its jurisdiction, we shall hold: (1) that the circuit court erred in holding Susan W. in contempt and in directing that a $5,000 judgment against her should be entered; and (2) that the court erred in ordering that Susan W. pay fees to a custody evaluator. In regard to the appeal from the denial of [220 Md.App. 71] a writ of habeas corpus, we shall hold that such an appeal is not allowed.

I.

FACTS AND PROCEEDINGS

The circuit court file in this case already includes almost 200 docket entries. But, for purposes of deciding these interlocutory appeals, it is unnecessary for us to summarize most of the pleadings or orders that have been filed thus far. Accordingly, the summary set forth below is limited to a recap of the facts, pleadings and orders necessary to put in context the issues presented.

Susan W. and David W. were married on February 7, 2000. Zealand, now thirteen, and Sophia, now eleven, were born to the marriage. During the marriage, Susan W. and her husband lived in Spartanburg County, South Carolina. The parties were divorced on August 22, 2005 by the Seventh Judicial Circuit for the State of South Carolina. At the time of the divorce, David W., was awarded custody of Zealand and Sophia. Susan W. was granted visitation rights, but visitation with her children was required to be supervised by relatives. The reason that Susan W.'s visitation rights were ordered to be supervised was because she had a history of serious alcohol abuse. From the time of the divorce up until September 20, 2012, when David W. died, Susan W. never had custody of her children and visitation was always supervised.

Approximately one year prior to his death, David W. and the two children

Page 840

moved to Montgomery County, Maryland. Five days after David W.'s death, Mr. Tattersall, who usually lives in Australia, filed a pleading entitled " Emergency Petition for the Appointment of Temporary and Permanent Guardians of the Person of Minors" (the Petition). He alleged that Susan W., the mother of the minor children, currently lived in Huntington, West Virginia but was not " an appropriate person" to care for the minor children because: (1) she lives with her parents in West Virginia; (2) she has had " long periods of unemployment in the past; " (3) she has a " lengthy [220 Md.App. 72] history of serious neglect of the minor children; " and (4) she " has a long-standing history of alcoholism and bulimia."

Mr. Tattersall further alleged in the Petition that the two children were currently living with Tim Pirrone and Satomi Pirrone in Rockville, Maryland. According to the Petition, Mr. and Mrs. Pirrone were friends of the late David W. Mr. Tattersall requested that the Pirrones be appointed temporary co-guardians of the person of the two minor children on an emergency basis. The Petition also stated that the action was brought pursuant to Md. Code, Estates & Trusts Article, section 13-702.

On the same day that the Petition was filed, an emergency hearing was held in the Circuit Court for Montgomery County. Susan W. and her parents were in attendance at the hearing as was Mr. Tattersall and his counsel. Susan W., who was not represented by counsel, opposed the appointment of a guardian of the person of her children. Nevertheless, the circuit court appointed Mr. and Mrs. Pirrone as temporary co-guardians of the person of Zealand and Sophia. Susan W. was granted the right to have supervised visitation with her children.

On September 27, 2012, Steve Gaba, Esquire, was appointed by the court as the Best Interest Attorney for Zealand and Sophia. Four days later, on October 1, 2012, Susan W. and her parents, Gene R. Weekley and Willa M. Weekley, pro se, filed a motion to strike the order appointing temporary guardians of the minor children. They asked that Mr. and Mrs. Weekley, the children's maternal grandparents, be appointed Zealand and Sophia's temporary guardians.

On November 29, 2012, Mr. Tattersall, by counsel, filed a pleading entitled " Motion to Appoint a Substitute Temporary Guardian of the Person of Minors." Movant alleged that Mr. and Mrs. Pirrone were no longer " able to provide a home for the minor children." Movant asked the court to appoint " either Jim Wood of Easton, Maryland or Darrin Wolfe of Durham, North Carolina as the substitute temporary guardian of the minor children." Movant alleged that both Mr. Wood [220 Md.App. 73] and Mr. Wolfe " and their families have been close family friends of the minor children and [their father] . . . for many years."

The maternal grandparents, by counsel, filed a " Counter-Petition for Guardianship of the Person and the Property of the Minor Children" on November 30, 2012. They requested in their counter-petition that the court appoint them as temporary and permanent guardians of their grandchildren. On the same date, the maternal grandparents filed an opposition to Mr. Tattersall's November 29, 2012 petition.

The court, on December 14, 2012, appointed Mr. Tattersall, who at that time was temporarily living in Rockville, Maryland, as the substitute temporary guardian of the person of the minor children. The order provided that the children's maternal grandparents would be given certain visitation rights with their grandchildren, but that Susan W. would be granted no rights of visitation, although she was allowed

Page 841

to have telephone contact with the children twice weekly.

On January 16, 2013, the court appointed Darrin Wolfe and his wife, Hilary Wolfe, who reside in Durham, North Carolina, as temporary co-guardians of the minor children. That order was consented to by the maternal grandparents and all other parties except for Susan W.

On July 19, 2013, Susan W., represented by new counsel, filed a motion to dismiss the case based on (1) failure to state a claim upon which relief can be granted, and (2) lack of subject matter jurisdiction. Movant's counsel argued:

The jurisdictional problem . . . is that a cousin [Mr. Tattersall], distant or otherwise, has no statutory right under Estates and Trusts Article ยง 13-702 to seek the appointment of a guardian of the person of a minor child, whose father is ...

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