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Jose v. Jose

Court of Special Appeals of Maryland

June 27, 2018


          Circuit Court for Anne Arundel County Case No. 02-C-11-163467

          Wright, Arthur, Kenney, James A., III (Senior Judge, Specially Assigned), JJ.


          Kenney, J.

         Lyonel Jose, Jr. ("Father"), the appellant, and Sandra Farnham, formerly Sandra Jose, ("Mother"), the appellee, are the divorced parents of a now eight-year-old daughter ("Daughter"). This case comes a second time to this Court following our remand to the circuit court in Jose v. Jose, No. 1213, September Term, 2016, slip op. (filed Mar. 10, 2017). Father again challenges the judgment of the Circuit Court for Anne Arundel County regarding his request to modify the legal and physical custody arrangement of Daughter. He asks in this timely appeal:

[Did the] trial court err[] by not awarding the parties joint legal and physical custody?

         For the reasons that follow, we affirm as to legal custody, but vacate and remand as to physical custody.


         The facts were thoroughly presented in the "Facts and Proceedings" section of the earlier unreported opinion, from which we will summarize briefly.

         Father and Mother, who both grew up in Maryland, were married on December 29, 2006. Daughter was born on November 14, 2009. When the couple divorced in 2012, Father was on active duty in the United States Marine Corp ("USMC") and stationed in California. Mother lived and worked in Maryland.

         Under a Voluntary Separation and Property Settlement Agreement (the "Agreement") executed on July 12, 2012, the parties shared joint legal custody of Daughter, with Mother having tie-breaking authority. Mother had primary physical custody of Daughter in Maryland, and Father had rights of access and visitation. The Agreement provided two different schedules for Father's access/visitation, one before and another after Daughter started pre-kindergarten. We will refer to them as the "preschool schedule" and the "school schedule." Under the pre-school schedule, Daughter would live with Father 120 days per calendar year in California. Father and Mother would alternate Christmas holiday periods, and Father would have reasonable visitation with Daughter when he was in Maryland. After she started school, Daughter would be in Father's care from one week after the end of the school year until two weeks prior to the new school year, in addition to her Spring and Thanksgiving school breaks each year. Christmas holidays would continue to be alternating.

         The parties operated under the pre-school schedule until June 2015, when Father was medically discharged from the USMC and moved back to Maryland. At that time, Daughter was five years old and about to begin kindergarten. Operating under the preschool schedule, Daughter had lived with Father in California from April 2015 through July 2015.

         Father filed a motion to modify custody, visitation, and child support on June 19, 2015. He alleged that the Agreement was designed to conform to his military status while living in California, but that he was now discharged and living in Glen Burnie, Maryland, about 30 minutes from Mother's home in Bowie. He further alleged that Daughter would "suffer severe emotional and physical harm if custody [was] not modified," and that it would be in Daughter's best interest to "live with both parties equally."

         In late August 2015, Daughter began kindergarten at Four Seasons Elementary School, a public school near Gambrills, which is where Mother now lived and about 15-20 minutes from Father's home. Operating then under the school schedule, Father received limited daytime visitation and only about two overnights from August 2015 until December 2015. Father made numerous requests via email to Mother for visits, weekday dinners, and weekend overnights with Daughter in September, October, and November 2015. Mother declined these requests because, in her view, they were too disruptive to Daughter's routine.

         In January 2016, pending resolution of the modification litigation, the parties agreed to an interim visitation schedule that Mother proposed. Father would have alternating weekend visitation (from Friday after school until Sunday at 5 p.m.) and weekly Wednesday night dinner visits. The parties followed this schedule until the modification hearings concluded.

         After Mother filed her answer and a cross-motion, the circuit court held an evidentiary hearing over two days, May 31, 2016 and June 1, 2016. Father testified and called his wife, Jacquelyn Jose ("Jacquelyn") to testify; Mother testified and called her mother, Margaret Farnham, and her partner, Cyrus Verrani ("Cyrus"), to testify. Both Mother and Father testified about disputes over access to Daughter that had arisen since Father's return to Maryland and their difficulties in communicating with each other. They primarily communicated by email and text, with, at times, Jacquelyn and Cyrus acting as intermediaries.

         For example, the parties had disputed the appropriate medical treatment for Daughter's amblyopia, more commonly referred to as "lazy eye." Daughter had seen two ophthalmologists in the same practice, both of whom recommended patching therapy. One of them also recommended additional vision therapy.[1] Mother sought another opinion from a third ophthalmologist in a different practice, who recommended a change in Daughter's eyeglass prescription to correct the issue without any other therapy or treatment. Mother wished to follow the third recommendation; Father disagreed. While Mother was on a trip to New Zealand, Father took Daughter to see a fourth ophthalmologist who also recommended patch and vision therapy. Mother, exercising her tie-breaking authority, decided not to pursue patch or vision therapy.

         On another occasion, there was confusion and conflict over Mother's desire to acquire a passport for Daughter for international travel. Mother, who had plans to take Daughter to Niagara Falls, Canada for Daughter's birthday, had emailed Father about the feasibility of a passport for Daughter. Father was open to obtaining a passport, but was hesitant to consent without definite travel plans in place. After much discussion, those travel plans were eventually dropped. Mother reached out again requesting a passport for Daughter to travel with her to New Zealand for Cyrus's sister's wedding. Father took issue with the lengthy absence from school, and declined to consent; Daughter did not go on that trip.[2]

         Both parties agreed that Daughter was doing well in school and was a happy and thriving young girl. She was close to both parties, to their respective significant others, to her baby half-sister, born to Mother, and to her maternal and paternal grandparents. And, when she was in one parent's care, she missed the other parent.

         They also agreed that it was in Daughter's best interest to spend time with both of them and that each is a fit parent. As to physical custody, Father wanted a shared custody arrangement, such as a "2-2-5"[3] schedule. He argued that, while his military service in California had complicated custody, his discharge and return to Maryland resolved that issue and evidenced his desire and ability to share custody. Mother asked the court to modify visitation to maintain the interim schedule that they had been following during the school year, with Father having alternate weekends, Wednesday night dinners, and in the summer, from one week after the last day of school until one week before the start of school.

         As to legal custody, Father asked the court to grant joint legal custody, but eliminate tie-breaking authority because Mother had abused it by using it to shut down discussion. Mother asked the court to preserve her tie-breaking authority because she and Father often were unable to reach a mutual decision on important issues concerning Daughter.

         At the outset of the hearing, the court had asked and the parties had affirmed that they were stipulating to a material change in circumstances. The court then directed them to "move to the best interest phase for purposes of litigating the matter." However, in its opinion and order entered on August 18, 2017, the court found that Father had failed to provide sufficient proof of a material change of circumstances and, as a result, it did not engage in a best interest analysis. It ordered that the parties continue to share joint legal custody of Daughter, with Mother continuing to have tie-breaking authority. It further ordered that Mother have primary physical custody of Daughter, and altered Father's access/visitation schedule, which we summarized as follows:

[The circuit court] proceeded to grant Father visitation on alternating weekends, from 6 p. m. on Friday and to 6 p.m. on Sunday; for two weeks in the summer; on Father's Day (if on a non-access weekend) from 10 a.m. until 7 p.m.; and on Daughter's birthday from 10 a.m. until 2 p.m. (if a non-school day) or from 4 p.m. to 6 p.m. (if a school day). It fashioned an alternating schedule for holidays and breaks, giving Father access to Daughter in even years on New Year's Eve through New Year's Day; Memorial Day; the Thanksgiving holiday from Wednesday at 6 p.m. through Sunday at 5 p.m.; and on Christmas Eve from 4 p.m. until 7 p.m. In odd years, it granted Father access to Daughter during her spring break from the day after school ends, at 10 a.m., until the day before it resumes, at 4 p.m.; and on Independence Day, Labor Day, and Christmas Day. The court did not grant Father Wednesday night dinner visitation (or any weekday access, except in the summer).

Jose, slip op. at 13.

         On appeal, this Court vacated the judgment, holding that there was legally sufficient evidence of a material change in circumstances affecting the Daughter's welfare with respect to both legal and physical custody. We remanded the case for the circuit court to proceed with an analysis of whether the modification sought by Father would be in Daughter's best interest. We added that, on remand, "the circuit court may request additional briefing and hold additional evidentiary proceedings, if necessary, to consider the parties' current circumstances if they have changed from the time of the hearing." Jose, slip op. at 27.

         On remand, the circuit court held a scheduling conference, at which both parties agreed that there had not been changes in circumstances since the last hearings, and agreed to file memoranda in lieu of an additional hearing. The circuit court, on May 23, 2017, entered a revised opinion and order. After evaluating the relevant factors and making findings of fact, it arrived at the same conclusion as before with regard to both legal and physical custody:

Based on the foregoing considerations and the evidence herein, and weighing all of the factors as to both legal and physical custody, it is found to be in the minor child's best interest to be in the joint legal custody of the parties, with tie-breaking authority vesting in [Mother]. In sum, the determining factors as to primary physical custody are caretaking of the child by her mother, from an early age, which resulted in a stronger bond, a consistent parenting style and a structure to the child's day-to-day living that should not be disturbed. Regular and consistent access by the father will provide the child with all of the benefits of having two parents in her life. The Court finds that the minor child should be in the primary physical custody of [Mother], with [Father] enjoying reasonable access[.]

         Father's access/visitation schedule remained as it was in the August 18, 2017 order.

         When his May 30, 2017 motion to reconsider was denied, Father filed this timely appeal. We shall include additional details in our discussion.


         Standard of Review

         Maryland appellate courts employ three methods of review in child custody cases:

When the appellate court scrutinizes factual findings, the clearly erroneous standard of [current Rule 8-131(c)] applies. If it appears that the chancellor 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 chancellor founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the chancellor's decision should be disturbed only if there has been a clear abuse of discretion.

Wagner v. Wagner, 109 Md.App. 1, 39-40 (1996) (quoting Davis v. Davis, 280 Md. 119, 125-26 (1977)). An abuse of discretion arises when "no reasonable person would take the view adopted by the [trial] court," "when the court acts without reference to any guiding rules or principles," "when the court's ruling is clearly against the logic and effect of facts and inferences before the court," "when the ruling is violative of fact and logic," or when "its decision is well removed from any center mark imagined by the reviewing court." Santo v. Santo, 448 Md. 620, 625-26 (2016) (cleaned up). The standard accounts for the trial court's "opportunity to observe the demeanor and the credibility of the parties and the witnesses." Petrini v. Petrini, 336 Md. ...

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