*Divorce: Out-of state same-sex marriage. A valid out-of-state same-sex marriage should be treated by Maryland courts as worthy of divorce in Maryland under the principle of comity.
Jessica Port v. Virginia Anne Cowan, 426 Md. 435 (2012).
Decided May 18, 2012 (Maryland Court of Appeals, No. 69, September Term, 2011)
On May 18, 2012, Maryland’s Court of Appeals answered unanimously (7-0) “YES” to the question: Must a Maryland circuit court “grant a divorce to two people of the same sex who were validly married in another jurisdiction and who otherwise meet the criteria for divorce under Maryland law?” The female same sex couple, who had been married in California, were denied a divorce by the Circuit Court for Prince George’s County on the grounds that their same sex marriage “is not valid pursuant to Maryland law” and that recognition of such a marriage “would be contrary to the public policy of Maryland.” The parties appealed the case to the Maryland Court of Special Appeals, but the Court of Appeals issued a writ of certiorari before the intermediate appellate court decided the appeal.
The Maryland Court of Appeals ruled that a valid out-of-state same-sex marriage would be recognized by Maryland courts under the doctrine of comity for purposes of adjudicating a divorce complaint in Maryland. Under the doctrine of comity, Maryland courts “recognize liberally” foreign marriages and will “honor foreign marriages as long as the marriage was valid in the state where performed.” The two exceptions to this are that the foreign marriage may not be “repugnant” to Maryland public policy and may not be prohibited expressly by a Maryland statute. Although present Family Law Article §2-201 defines marriage, for purposes of such ceremonies conducted in Maryland, as being only “between a man and a woman,” it does not preclude recognition of same-sex marriages solemnized validly in another jurisdiction – it denies recognition only to those actually performed or sought-to-be performed in Maryland. While some other states, such as Pennsylvania, Virginia and Missouri, have expressly legislated that even same-sex marriages validly entered into in another state are “void” in their jurisdiction, Maryland’s statute does not make void valid foreign same-sex marriages.
The Maryland Court of Appeals also concluded that the parties’ same-sex marriage does not meet the high standard of “repugnancy” to Maryland public policy. The Court reviewed Maryland statutes, executive branch policies, and court decisions and held that “[a] valid out-of-state same-sex marriage should be treated by Maryland courts as worthy of divorce, according to the applicable statutes, reported cases, and court rules of this State.”
The pending change to §2-201 of the Family Law Article that would permit the valid solemnization of same-sex marriages in Maryland (under the Civil Marriage Protection Act, adopted by the 2012 General Assembly and signed by the Governor on March 1, 2012, and which may be the subject of litigation or a petition referendum in the November 2012 election), appropriately did not factor in the Court of Appeals’ decision. Also, the Court declined to decide any constitutional equal protection or due process issues raised by the appeal because the appeal was resolved on the non-constitutional ground of comity.
*Child Custody – Maryland Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). A Maryland Court properly declined to exercise jurisdiction over an interstate child custody dispute, pursuant to Maryland UCCJEA, §§9.5-101 to 9.5-318, Family Law Article, where Maryland was not the home state of the child, who presently lives in Japan and has lived there her entire life, and a Japanese court had not declined to exercise jurisdiction over the matter.
Peter Paul Toland v. Akiko Futagi, 425 Md. 365 (2012).
Decided March 28, 2012 (Maryland Court of Appeals, No. 83, Sept. Term, 2011)
Mr. Toland was the sole surviving parent of his nine-year old daughter, who was living with her maternal grandmother, Ms. Futagi, in Japan, after having lived in Japan since her birth. Mr. Toland’s ex-wife, who was the child’s mother, had previously been awarded custody by a Japanese court. Following the child’s mother’s death in 2007, a Japanese decree was issued, and without notice to Mr. Toland appointed Ms. Futagi, the grandmother, as the child’s guardian. The Court of Appeals concluded that the appointment of Ms. Futagi as the child’s guardian, without severing Mr. Toland’s right to custody, did not violate his fundamental rights and that the §9-5-104(c) exception to application of UCCJEA (i.e., where the child custody law of a foreign country violates fundamental principles of human rights) is not applicable. Mr. Toland could present his custody claim to a Japanese court, and Maryland’s UCCJEA does not authorize a Maryland circuit court to decline jurisdiction on Japan’s behalf. The Court of Appeals affirmed the Montgomery County Circuit Court’s dismissal of Mr. Toland’s complaint for custody.
*Award of Attorney’s Fees Under §12-103 (child custody/visitation/child support proceeding) of the Family Law Article.
Joanna Davis v. Michael A. Petito, Jr., 425 Md. 191 (2012)
Decided February 27, 2012
The court may not consider the gratuitous cost of pro bono legal services provided to a party in a custody modification proceeding in awarding attorney’s fees, pursuant to §12-103 of the Family Law Article, to the other party, who had retained private counsel.
The Circuit Court for Wicomico County ordered Ms. Davis to pay her ex-husband $30,773.54 in attorney’s fees and costs, because the trial court determined that she was in a better financial position than Mr. Petito, due to her having been represented on a pro bono basis (Note: she had prior private counsel to whom she paid about $9,000), while Mr. Petito had accumulated over $75,000 in legal fees as a result of retaining private counsel. The trial judge divided the amounts paid by the parties to their respective private counsel according to their relative income. The Court of Special Appeals affirmed the circuit court’s order. The Court of Appeals held that consideration that one party was represented on a pro bono basis, in order to award attorney’s fees to the other party who had retained counsel was erroneous under §12-103.
The case was remanded to the trial court for reconsideration of the statutory factors in light of the Court of Appeals opinion. The opinion contains a good discussion of the factors of “substantial justification” in bringing, maintaining or defending a proceeding, and the “financial status and needs” of the respective parties. Substantial justification relates solely to the merits of the case against which the judge must assess whether each party’s position was reasonable. Substantial justification for each party’s position is measured by the issues presented and the merits of the case, not the amount of attorneys’ fees charged. The financial status and needs must be balanced in order to determine ability to pay the award to the other and this requires more then a comparison of incomes.
“Section 12-103 contemplates a systematic review of economic indicators in the assessment of the financial status and needs of the parties, as well a determination of entitlement to attorneys’ fees based upon a review of the substantial justification of each of the parties’ positions in the litigation, mitigated by a review of reasonableness of the attorneys’ fees.” Only when both parties are determined to have a substantial justification for their positions should the relative amounts of the parties’ attorneys’ fees be considered. And, in such consideration, the pro bono legal services must be valued. See Henriquez v. Henriquez, 413 Md. 287, 992 A.2d 446 (2010).
On remand, “[i]f the Circuit Court determines that Ms. Davis lacked substantial justification for bringing her child custody modification claim and absent a finding of good cause to the contrary, then under Section 12-103(c), the reasonableness of Mr. Petito’s attorneys’ fees would then be the only consideration. If the Circuit Court finds under Section 12-103(b), however, that Ms. Davis and Mr. Petito each had substantial justification for bringing or defending their respective positions in the proceeding, then the Circuit Court must value the legal services afforded to both parties, according to Henriquez, and determine their reasonableness, after which the Circuit Court must proceed to assess Ms. Davis’s and Mr. Petito’s financial status and needs.”
THE 2008 YEAR IN REVIEW: TEN RECENT MARYLAND FAMILY LAW CASES OF INTEREST
This is a brief look back at ten interesting (to me) non-Juvenile Maryland family law cases decided in 2008, with a little help from late 2007! Soon we will take a look at the upcoming 2008 90-day session of the Maryland General Assembly where we anticipate introduction of a significant bill revising the Maryland Child Support Guidelines, and the re-introduction of a bill attempting to codify the factors set forth in various Maryland cases to be considered by a Maryland court in its determination of minor children’s best interests in child custody cases.
(1) Marriage: Maryland Same-sex marriage.
Conaway v. Deane, 401 Md. 219, 932 A.2d 571 (2007).
Frank Conaway, Clerk of the Circuit Court for Baltimore City, and other circuit court clerks throughout Maryland denied marriage licenses to certain same-sex couples. The Clerks denied those applications pursuant to Family Law § 2-201, which states that “only a marriage between a man and a woman in this state is valid.” The aggrieved applicants filed suit against the Clerks in the Circuit Court for Baltimore City and the circuit court granted summary judgment in favor of the marriage license applicants, declaring that the statute discriminates facially on the basis of sex, in violation of Article 46 of the Declaration of Rights of Maryland, otherwise known as the Equal Rights Amendment (“ERA”). The Maryland Court of Appeals issued a writ of certiorari to the Court of Special Appeals before that court had decided the issue. The Court of Appeals held that because Family Law § 2-201 does not abridge the Court’s understanding of the fundamental right to marriage, does not discriminate on the basis of sex in violation of Article 46, and does not otherwise implicate a suspect or quasi-suspect class, the marriage statute is subject to rational review, under which it carries a strong presumption of constitutionality. Under rational review, and as a matter of judicial restraint, the Court’s inquiry ends where it finds “plausible reasons” for the legislature’s action where there’s no reason to presume antipathy. The Maryland Court of Appeals observed that in declaring that Maryland’s legitimate interests in fostering procreation and encouraging the traditional family structure in which children are born are related reasonably to the means employed by Family Law § 2-201, its opinion should not be read to imply that the Maryland General Assembly may not grant and recognize for homosexual persons civil unions or the right to marry a person of the same sex. This brief summary of the Court’s conclusion cannot adequately discuss the various arguments and considerations. The Court’s opinion was 109 pages, plus a 39 page concurring and dissenting opinion, as well as two dissenting opinions of 81 and 10 pages respectively.
(2) Child Custody and Visitation: Third party: de facto parent
Janice M. v. Margaret K., 404 Md. 661, 948 A.2d 73 (2008)
Maryland law does not recognize de facto parenthood. In order to overcome a legal parent’s constitutional rights to govern the care, custody, and control of her or his child, even a putative de facto parent (in this case Mother’s same-sex former partner) who seeks custody or visitation rights over the objection of a legal parent is a third party, and as is required of other third parties, must demonstrate the legal parent’s unfitness or exceptional circumstances as a prerequisite to a court’s consideration of the child’s best interests.
(3) Child Custody: Tort: Intentional Interference with Parent-Child relations
Khalifa v. Shannon, 404 Md. 107, 945 A.2d 1244 (2008)
In this case the mother, who was not the custodial parent, took the parties’ two minor sons to Egypt, without their father’s knowledge or consent, and refused to return them to their father. Maryland recognizes the tort of interference with parent-child relations as established previously in Hixon v. Buchberger, 306 Md. 72, 507 A.2d 607 (1986). A parent could bring the cause of action where the interference with visitation was a “major and substantial” one. The loss of a child’s service was not a necessary element of the tort, and a parent with legal custody and visitation rights under court order at the time of abduction is not required to plead or prove that he or she has suffered an economic loss due to the abduction and harboring of the child.
The parties purchased a Maryland house jointly, and when it was purchased the wife intended to live there with the minor children. However, the husband wanted it to be his permanent residence and to reconcile with the wife and live there together. Basically, the wife lived in the house with the children for a brief period until the husband tried do move in, at which time she moved out of the house and he resided in the house. So, technically, they did not live together at the house, but it was clearly intended to be a home for the children. At one point the parties signed an interim agreement providing for the wife’s exclusive use and possession of this “family home.” However, the husband challenged the trial court’s award of use and possession of the house to the wife claiming that it could not be a family home subject to a use and possession order as they had never lived there together. The trial court’s award of use and possession was affirmed. The Court of Special Appeals construed “when they lived together” in deciding that this particular property owned by the parties as tenants by the entireties, but in which the husband, the wife, and the minor children did not reside together at the same time, constitutes the family home and is the proper subject of a use and possession order. The court “deemed” the phrase “when they lived together” to be one that describes a common circumstance that frequently helps to identify the truly critical term “the principal residence of the parties.” However, “when they lived together” does not constitute a necessary condition precedent to the existence of a “principal residence of the parties.” It is the “principal residence of the parties” that is the “family home” and is the proper subject of a use and possession order whether or not the parties ever actually “lived there together.”
(5) Comity: Foreign Divorce: Property distribution
The Montgomery County Circuit Court declined to afford comity to the property division resulting from a Pakistani talaq divorce. The parties, Pakistani citizens, had resided in Maryland over 20 years and the wife was a permanent resident of the United States. The parties were married in Pakistan, but they never lived there together. While wife’s divorce action was pending in Montgomery County, Maryland husband divorced wife under Pakistani law by talaq, pronounced (“I divorce you . . ., I divorce you . . ., I divorce you ….”) in the United States and registered in Pakistan. The alleged Pakistani marriage contract and the Pakistani law addressing division of property upon divorce (i.e., rights in property follow title unless the marriage contract departs from usual form to expressly provide the wife with some right in husband’s property) is contrary to Maryland public policy concerning equitable distribution of marital property. The appellate court noted that the "default" position under Pakistani law is that Wife has no rights to property titled in Husband's name, while the "default" position under Maryland law is that the wife has marital property rights in property titled in the husband's name. This conflict is so substantial that applying Pakistani law in the instant matter would be contrary to Maryland public policy. The appellate court held that the trial court did not err in declining to apply, under principles of comity, the law of Pakistan in determining Wife's rights in marital property titled in Husband's name.
The trial court erred in granting wife an absolute divorce on the ground of voluntary separation, because neither party asserted that ground and the record did not show the requisite agreement to separate for twelve months prior to filing for divorce. Husband’s filing of a counter-complaint for divorce on a fault-based ground did not establish his agreement to a no-fault divorce. Nevertheless, the error was harmless because both parties sought a divorce; the record supported a divorce on grounds of constructive desertion; and the court made factual findings tantamount to a finding of constructive desertion.
(6B) Cotenant’s Right to Contribution, i.e., Crawford credits.
Flanagan v. Flanagan, 181 Md. App. 492 (2008)
In awarding Crawford credits (i.e., contribution between cotenants of jointly owned property as discussed in Crawfordv. Crawford, 293 Md. 307 (1982)) to husband for his payment of the mortgage on the marital home, the Maryland circuit court did not abuse its discretion in offsetting the award of Crawford credits by wife’s rental payments for an apartment. See Broseus v. Broseus, 82 Md. App. 183 (1990).
An agreement reflected in a joint statement of marital property and non-marital property under Maryland Rule 9-207, to the effect that the parties have resolved the disposition of certain marital property, serves to render that property non-marital, pursuant to Family Law § 8-201(e)(3)(iii). However, the fact that property may be excluded from the marital property “pool,” by agreement of the parties in a Maryland Rule 9-207 joint statement, does not mean that the court may not consider such non-marital property as a factor in its equitable distribution of the remaining marital property.
(7-10) Pensions, Pensions, Pensions! There were several Maryland cases concerning retirement and pension benefits that highlight the importance of carefully and clearly defining the parties’ agreement in Property Settlement Agreements and Qualified Domestic Relations Orders, Court Orders Acceptable for Processing, CSRS Orders, and the like relating to pension division.
(7)Janusz v. Gilliam, 404 Md. 524, 947 A.2d 560 (2008) (The Court of Appeals was asked to decide whether a mutual mistake of law by the parties to a contract (i.e., the assumed future entitlement, post-divorce, of Ms. Janusz to Mr. Gilliam’s survivor’s annuity benefits) is grounds for rescinding their contract, or in the alternative, whether Mr. Gilliam has been unjustly enriched. The Court held that a mutual mistake of law is no basis for rescission or a claim of unjust enrichment, but without affirming or reversing the trial court’s judgment, the matter was remanded for the limited purpose of determining whether a Court Order Acceptable for Processing (“COAP”), executed by the parties’ attorneys, is a valid modification of the original Agreement. If so, the COAP explicitly states what actions the parties must take in the event that Ms. Janusz is ineligible to receive benefits under the survivor’s annuity. Finally, because the trial court, in its ruling, did not address Mr. Gilliam’s allegations that his attorney did not have the authority to bind him by signing the COAP, the court should address that allegation as well. If the trial court determines that the COAP is not part of the parties’ Agreement, ultimately, the court must determine whether Mr. Gilliam has been unjustly enriched, because Ms. Janusz did not, as the trial court determined, waive her right to a claim for unjust enrichment).
(8)Mills v. Mills, 178 Md. App. 728, 943 A.2d 677 (2008) (Circuit Court for Montgomery County, Maryland did not err in entering Amended Order that added a provision entitling spouse to commutation pay in the same percentage that applied to other World Bank pension benefits under the parties’ original agreement, as reflected in the Original Order, where the modification was necessary in order for the Original Order to be accepted by the pension plan administrator as a Qualified Domestic Relations Order. Amendment was proper where the court had reserved jurisdiction to modify any qualified pension order in the Judgment for Absolute Divorce and where the amendment did not deviate from the terms of the parties’ settlement agreement and was invoked to effectuate intent of parties after pension amount was altered by commutation.
(9)Hearn v. Hearn, 177 Md. App. 525, 936 A.2d (2007) (pro rata share division of CSRS benefits: gross annuity vs. net annuity?);
(10)Allen v. Allen, 178 Md. App. 145, 941 A.2d 510 (2008) (Husband could not frustrate former wife’s share of pension benefits by electing disability classification. Thus, former husband’s waiver of his Army retirement pension, after entering into agreement with former wife that she would receive a percentage of pension benefits was a breach of contract, for which, under Maryland contract law, the circuit court’s measure of damages that former wife would have received had former husband not committed breach is affirmed. See Dexter v. Dexter, 105 Md. App. 678 (1995)).
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