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Pilkington v. Pilkington

Court of Special Appeals of Maryland

November 29, 2016

NICOLE PILKINGTON
v.
ROMAN PILKINGTON, II

          Meredith, Leahy, Beachley, JJ.

          OPINION

          Leahy, J.

         Nicole Pilkington (Appellant) challenges the Circuit Court for Harford County's jurisdiction to issue the underlying order awarding sole legal and primary physical custody of her child R.P., to her former husband, Roman Pilkington, II (Appellee). Ms. Pilkington is a citizen and current resident of Germany. Mr. Pilkington is a Sergeant in the United States Army, and the transience of his residences in that service underlies the issues at the crux of this case.

         The parties met in 2003 in Germany where they got married and became the parents of R.P. During the time the married couple lived in Germany, Ms. Pilkington also gave birth to B.P., who, it was later determined, was not the biological child of Mr. Pilkington. The parties moved to Colorado, where they divorced two years later and entered into a court-ordered custody plan for R.P., awarding Ms. Pilkington primary physical custody.[1]After another three years, Mr. Pilkington moved to Maryland, where he currently resides.

         In 2014, Ms. Pilkington took B.P. and R.P. to Germany for a month-long vacation, and then decided unilaterally to stay in Germany and enroll both children in school there, in violation of the Colorado court's custody order for R.P. Nineteen months later, when Ms. Pilkington allowed R.P. and his sister to visit his father in Maryland, Mr. Pilkington sought judicial intervention. He filed two emergency custody petitions in the Circuit Court for Harford County for R.P. and B.P.

         At the emergency custody hearing, Ms. Pilkington appeared through counsel and challenged the court's jurisdiction under the Maryland Uniform Child Custody Jurisdiction and Enforcement Act ("Maryland UCCJEA" or "Act"), Maryland Code (1984, 2012 Repl. Vol.), Family Law ("FL") § 9.5-101 et seq. The court decided it could exercise jurisdiction under the Act, but ordered Mr. Pilkington to return the children to Germany until the court could conduct a full trial. Once the children were back in Germany, Ms. Pilkington broke off all communications and did not participate in any further court proceedings preceding this appeal. In response, the circuit court determined that Ms. Pilkington's behavior was inconsistent with R.P.'s best interest and awarded sole legal and primary custody of R.P. to Mr. Pilkington.

         Ms. Pilkington presents the following issues:

1) "Whether the lower court erred when it modified custody without subject matter jurisdiction."
2) "Whether the lower court erred and violated the Mother's due process rights and fundamental liberty interest in the care, custody and control of her son in violation of the United States Constitution, the Maryland Declaration of Rights and Maryland statutory and case authority when it failed to provide the Mother notice and an opportunity to be heard."
3) "Whether the lower court erred and violated the Mother's due process rights and fundamental liberty interest in the care, custody and control of her son when it exceeded the authority afforded it by the Maryland Rules."
4) "Whether the lower court abused its discretion when it modified and changed custody without holding a hearing and without any factual findings."

         We hold that the circuit court in this case exceeded the jurisdictional restraints imposed under the Maryland UCCJEA by entering an order that modified a foreign jurisdiction's existing custody order when Maryland was not the child's home state and there was no other jurisdictional basis to modify an existing order under FL § 9.5-203. We, therefore, must vacate the circuit court's order and remand the case with instructions that the court limit itself to the authority contained in the Maryland UCCJEA's enforcement subtitle.

         BACKGROUND

         A. The Marriage and Divorce

         Mr. Pilkington met Ms. Pilkington, a German national, while he was stationed with the United States Army in Schweinfurt, Germany. On May 23, 2003, the couple married in Niederwerrn, Bavaria, Germany, where they lived until December 2008 when the Army transferred Mr. Pilkington to Colorado Springs, Colorado. During their marriage and while the couple still resided in Germany, Ms. Pilkington gave birth to two children: B.P., born in 2004, and R.P., born in 2006. The couple remained married until October 28, 2010, at which point they obtained a Decree of Dissolution of Marriage ("Colorado Order") in the District Court for El Paso County, Colorado. A paternity test at the time of the parents' divorce proved that Mr. Pilkington is not B.P.'s biological father, although her birth certificate identifies him as the father. R.P. is Mr. Pilkington's biological son.

         The Colorado Order incorporated a parenting plan for R.P., which set child support, provided Ms. Pilkington with primary physical custody of R.P., and granted Mr. Pilkington weekend visitation during the school year and a total of 170 overnights per year.[2] The Colorado Order also required that either parent wishing to relocate the child must "file a Motion with the Court . . . and obtain court permission to relocate, unless the parties have submitted to the Court a written agreement/stipulation[.]"

         B. Custody, Visitation & the Underlying Dispute

         After the Pilkingtons lived separately in Colorado for almost three years, the Army transferred Mr. Pilkington from Colorado Springs to Aberdeen Proving Ground, Maryland, in October of 2013. The children remained in Colorado with Ms. Pilkington from October until their school's Christmas break, at which point they traveled to Maryland to spend the holiday with Mr. Pilkington. Then, at Ms. Pilkington's request, Mr. Pilkington provided Ms. Pilkington with written permission allowing her to take the children to visit her family in Germany from January 25, 2014 to February 20, 2014.[3] Once in Germany, Ms. Pilkington decided unilaterally to remain there with the children and enroll them in a German primary school. She did not ask Mr. Pilkington for a joint stipulation to amend the parental plan, nor did she seek the Colorado court's permission to relocate the children pursuant to the Colorado Order. That summer, Mr. Pilkington travelled to Germany to visit the children. He returned to Maryland two weeks later without having sought a court order to enforce his custody rights.

         A year passed before Mr. Pilkington would see the children again. At no point in the meantime did Mr. Pilkington file a motion in any court for the children's return. The following summer, with Ms. Pilkington's permission, Mr. Pilkington flew to Germany to pick up the children to bring them to Maryland from June 29, 2015, until September 11, 2015, at which point they were to return to Germany. When the time came for the children to return to Germany, Mr. Pilkington took the children only as far as Philadelphia International Airport. Once at the airport, Mr. Pilkington claims the children were upset to leave him so he took them back to Maryland where he enrolled them in school.

         C. The Emergency Custody Hearing

         Ten days after the children were supposed to fly back to Germany, Mr. Pilkington, through counsel, sent Ms. Pilkington notice electronically, advising her that he would be filing an "Ex Parte Petition for Emergency Custody in the Circuit Court for Harford County on September 24th, 2015 at 8:30 a.m." Two days later, Mr. Pilkington again sent Ms. Pilkington and her Maryland counsel notice of the action and certification of service-this time by both email and regular mail. Then, on September 24, 2015, Mr. Pilkington filed his petition for temporary custody of R.P. and a corresponding affidavit in compliance with the requirements for a petition to enforce child custody determination.[4] Mr. Pilkington brought his petitions pursuant to FL §§ 9.5-204 and 9.5-304, as well as § 9.5-303, and filed his affidavit of compliance pursuant to § 9.5-308 of the same title.

         Mr. Pilkington's complaint alleged that Ms. Pilkington kept the children in Germany in disregard of the Colorado Order, depriving Mr. Pilkington of his rights therein. Mr. Pilkington asked the court "to issue a temporary order enforcing the visitation schedule made by the Colorado court until such time that the foreign judgment can be registered in Maryland, and order that [he] be awarded primary physical custody of [R.P.] on a pendente lite basis." Mr. Pilkington only sought custody pendente lite because, he reasoned, that if granted, "Maryland [would] become the 'home state' of [the children] in December 2015.[5]

         That same day, the circuit court held an emergency custody hearing. As an initial matter at the hearing, Ms. Pilkington appeared through counsel and questioned the court's subject matter jurisdiction to hear the case under the Maryland UCCJEA. The court observed: "If [the children] had gone from Colorado to Maryland, I would agree one hundred percent that you are in the wrong court. Since they had that year span or year plus over in Germany, then under the [Maryland UCCJEA] there really isn't any state in this country that has clear, pure six month jurisdiction." Mr. Pilkington's counsel acknowledged the home state issue, noting: "Due to the home state issue of six months, I was going to file that in December when that time comes." Ultimately the court found that it had jurisdiction:

Under the [Maryland UCCJEA] -- once again, if we didn't have that little intercession in Germany for over a year, clearly we wouldn't [have jurisdiction] and I would tell you all to pack your bags and go see beautiful Colorado. . . . But we do have that. So, if you look at what state in the union has any [jurisdiction], there is really no longer one that is clear. We look at the contacts with this state and at this point in time you still have two states fighting for it, one is Colorado under a continuing jurisdiction aspect and it is their Order, et cetera, but nobody has been there for over a year. Nobody has been here for long. The end of June and three months is all we have. So, it isn't terrific contact, but it certainly seems to beat anybody else in the USA. So, I'm not concerned on a jurisdictional aspect.

         After hearing proffers from each parties' counsel but no testimony, the court ordered Mr. Pilkington to surrender both children's passports and ordered that, pending trial, the children should return to their mother in Germany, with R.P. to return to Maryland for his entire Christmas vacation at Ms. Pilkington's expense. At Mr. Pilkington's request, the court agreed to include in its order a requirement that Ms. Pilkington return the children for trial, and if not, the court would "have the trial without her." The court's orders, however, do not explicitly include this mandate.

         The Office of the Family Law Case Coordinator for the circuit court mailed the parties' respective counsel copies of the Order for Referral on October 14, 2015, ordering the Office of Family Court Services:

1) To evaluate each party's ability to meet the child(ren)'s needs;
2) To evaluate each party's ability to make decisions which prioritize the needs of the child(ren);
3) To evaluate each party's ability to co-parent;
4) To evaluate each party's attitude toward the child(ren)'s relationship with the other party;
5) To evaluate the child(ren)'s adjustment to the current living arrangement;
6) To evaluate the child(ren)'s past and present relationship with each party;
7) To help the parties implement and develop a visitation schedule and to reduce the dates and times to writing;
8) Should there be a decrease or increase in visitation;
9) Should there be a change in custody if a parent moves out of the state.
10) To update the prior evaluation.

         The referral order also directed that:

[T]he Evaluator shall spend a maximum of four sessions in the evaluation of the parties and the child or children, and that the parties to this proceeding shall cooperate with the Evaluator in the scheduling of appointments, and if in the judgment of the Evaluator either party shall fail to cooperate in the scheduling of appointments, then the Evaluator shall notify the Court of this fact; and
[T]hat the Evaluator shall have the right to terminate th[e] referral if the Evaluator deems the referral inappropriate or the parties fail to cooperate. Such termination shall be made by sending written notice of that fact to the Court[.]

         A hearing was scheduled for December 29, 2015, and the Evaluator along with the parties and their respective attorneys were directed to appear.

         D. The Second Custody Hearing

         On October 19, 2015, Mr. Pilkington mailed Ms. Pilkington two Writs of Summons, seeking a written response to his complaints filed in the Ex Parte Emergency Petition for Custody and Third Party Complaint for Custody. The court held a hearing with the evaluator on December 29, 2015. Ms. Pilkington did not attend the hearing and the evaluator testified that Ms. Pilkington "had no contact via e-mail, letter or phone with this evaluator since October the 16th of 2015[, ]" despite "[n]umerous attempts . . . with no response." She also failed to return R.P. to his father for Christmas vacation, contrary to the court's September 24, 2015 order.

         After the evaluator entered her report at the December 29, 2015 hearing, Mr. Pilkington's counsel asked the court:

[E]ither by way of enrolling the Colorado Court Order or this Court issuing its own Order that we get a Custody Order in place in Maryland. At that point I think [Mr. Pilkington] could take that to law enforcement and file charges against her and then proceed to go to Germany with the aid of law enforcement and show her the Court Order and hopefully bring back the kid.
In the interim, because there is no Court Order in Maryland in place right now, I would ask at the very least that the Court issue a Show Cause Order so that can be served on her prior to or in advance of the Pretrial Conference, because we have a Pretrial Conference February the 14th so that I can serve her with that and then if she is not going to cooperate at that point issue a Body Attachment.

         The court responded:

All right. I'm inclined to simply make a recommendation that [Mr. Pilkington] be granted custody of the child. I mean, he is playing by the rules and [Ms. Pilkington's] not. I don't see any reason why we want to keep putting rules or making an Order for her that she is not going to obey.
* * *
. . . I'm a Magistrate, I'm not a Judge, but I'm going to make a recommendation. And it probably won't be signed [by the circuit court] until you get to that Pretrial [February 14, 2016] because I expect [Ms. Pilkington] will take Exceptions, but at least then a judge has got some idea what I think should be done and maybe if they agree with me they will continue it. If they don't, they will fashion some other remedy.
But it is clear to mean -- I mean, to me in the list of factors as to what makes a good custodial parent, the biggest one is which parent will best facilitate a relationship with the other parent. It is clear to me that [Ms. Pilkington] is not willing to do that in any shape. [Mr.] Pilkington on the other hand has played by the rules and he is willing to try to keep some kind of relationship going. He has been duped twice I would say and the Court has been duped once that if the kids get to Germany she will let him come back. She's not gonna [let R.P. come back] without some intervention. So, that is what I'm going to recommend.

         The next day, December 30, 2015, the presiding magistrate issued his report and recommendation, recommending that "[Mr. Pilkington] be granted Sole Legal and Primary Physical Custody of [R.P.]" The magistrate's report offered the following analysis:

At this time it seems very clear that [Ms. Pilkington] has no intention of honoring any Maryland Court Order regarding Custody. It is her apparent intention to completely isolate [Mr. Pilkington] from [R.P.] This Magistrate considers [Ms. Pilkington's] action in this matter to be extremely detrimental to the father-son relationship between [Mr. Pilkington] and [R.P.] [Ms. Pilkington's] actions are definitely not in the Minor Child's best interest.
In this case [Mr. Pilkington] has played by the rules and [Ms. Pilkington] has completely ignored them. The Magistrate believes that [Mr. Pilkington] will continue to facilitate a relationship between [R.P.] and [Ms. Pilkington] if [R.P.] is in his Custody. It is obvious that the reverse of this belief is not true.
Based on the above the Magistrate finds that it is in [R.P.]'s best interest that [Mr. Pilkington] be granted his Sole Legal and Primary Physical Custody. Visitation between [R.P.] and [Ms. Pilkington] should be worked out after [Ms. Pilkington] agrees to participate in these Court proceedings.

         The notice accompanying the report and recommendation explained the procedures for filing exceptions to the magistrate's recommendation and warned the parties that "[a]ny matter not specifically set forth in [an] exception[] is waived unless the Court finds that justice requires otherwise[, ]" and that "[t]he Court may dismiss the exceptions of a party who has not complied with [Maryland Rule 9-208]." The court mailed both its report and recommendation and the corresponding notice to both parties. Mr. Pilkington's counsel also mailed Ms. Pilkington a copy by restricted delivery.

         Ms. Pilkington did not respond or file any exceptions. On January 12, 2016, the Circuit Court for Harford County adopted the Magistrate's recommendation, issuing an order that stated simply: "Ordered that [Mr. Pilkington] be granted Sole Legal and Primary Physical Custody of [R.P.]" Ms. Pilkington noted her timely appeal.[6]

         I.

...


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