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Kowalczyk v. Bresler

Court of Special Appeals of Maryland

December 2, 2016

DENISE KOWALCZYK
v.
MARK BRESLER

          Graeff, Friedman, Eyler, James R., (Senior Judge, Specially Assigned), JJ.

          OPINION

          Eyler, James, R., J.

         This appeal arises from an order dated December 3, 2015, entered by the Circuit Court for Montgomery County, granting an emergency petition for contempt filed by Mark Bresler, appellee, against Denise Kowalczyk, appellant. The court found that appellant had violated conditions set forth in the court's prior orders governing appellant's visitation with the parties' minor child, whom we shall refer to as "M."

         On appeal, appellant presents the following questions for our review, which we consolidated and rephrased[1]:

1. Did the circuit court err by finding appellant in constructive civil contempt and imposing a punitive purge provision?
2. Did the court impermissibly modify its prior visitation orders?

         We answer the questions in the affirmative. For the reasons set forth below, we vacate the circuit court's order of contempt.

         BACKGROUND

         The parties have one child, M., who was born on May 9, 2002. In 2002, a California court entered a decree, awarding primary physical custody of M. to appellant. On March 3, 2011, the decree was registered in Maryland. Thereafter, the parties and court appointed best interests attorney filed numerous motions and petitions for contempt. It is unnecessary to review those filings and court rulings in detail.

         The parties agreed to share legal custody, reflected in a consent order entered on April 16, 2012. On July 17, 2014, on behalf of M., the best interests attorney filed a motion to modify legal custody, requesting that appellee be awarded sole legal custody of M. In December 2014, the court awarded sole legal custody to appellee.

         Shortly thereafter, appellee filed a motion to modify physical custody and visitation. On October 13, 2015, following a two-day evidentiary hearing, the court issued an order awarding primary physical custody to appellee and ordering that appellant's visitation with M. be supervised. On October 21, 2015, the court issued a separate visitation order entitled "TEMPORARY ACESS ORDER." The order provided as follows.

ORDERED, that pending further Order of the Court, [appellee's] Motion to Modify Visitation … shall be GRANTED on a temporary basis as set forth below; and it is further
ORDERED, that [appellant's] visitation with [M.] … shall be supervised by the Court's supervised visitation program pursuant to the Court's Order of Referral …; and it is further
ORDERED, that in the event the Court is unable to accommodate the parties' participation in the supervised visitation program, [appellant] will have two hours of supervised visitation with [M.] every other weekend, on either Saturday or Sunday, with a supervisor to be chosen by [appellee]; and it is further
ORDERED, in addition, that [appellant] will be entitled to a video telephone call with [M.] two times per week for up to 15 minutes at a time, and these video telephone calls are to be monitored by [appellee], who may suspend any one call if [appellant] communicated anything derogatory about [appellee] to [M.], or communicates anything that might reasonably be ...

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