Ali v. Hart

1

ZAKIYYAH ALI v. BRYAN C. HART

No. 0458-2022

Court of Special Appeals of Maryland

December 8, 2022

Circuit Court for Prince George's County Case No CAD-0834808

Wells C.J., Nazarian, Ripken, JJ.

OPINION ^[*]

Ripken, J.

This appeal involves a challenge by Zakiyyah Ali ("Mother") to the Circuit Court for Prince George's County's grant of Bryan C. Hart's ("Father") Amended Motion for Modification of Custody. The court issued an opinion and order granting primary physical custody of the parties' child ("Child") to Father and joint legal custody to Mother and Father with tiebreaking authority to Father. Mother was ordered to pay child support to Father. For the reasons discussed below, we shall affirm.

ISSUES PRESENTED FOR REVIEW

We have rephrased the issues as follows:^[1]

I. Whether Mother's notice of appeal was timely.

II. Whether the circuit court erred in considering Father's filing to modify custody.

III. Whether the circuit court erred in granting Father's motions to quash subpoenas to Father's counselor and Child's therapist and in permitting Child's therapist to testify about Child's mental health.

IV. Whether the circuit court erred in granting Father primary physical custody of Child.

V. Whether the circuit court erred in its calculation and order of child support to Father.

FACTUAL AND PROCEDURAL BACKGROUND

In 2008, Father filed a complaint in the Circuit Court for Prince George's County seeking joint custody of Child. Ten months later, Mother agreed to joint custody, resulting in a consent order.

In 2017, Father filed a Motion for Modification of Custody. The motion claimed that Mother deprived Father of his court-ordered access to Child by moving with Child from Maryland to Virginia. Father's motion was resolved through a consent order ("the second consent order"), to which both parties agreed. The second consent order contained a mediation provision stating that "both parties shall participate in at least one mediation session prior to filing any motion with the Court."

In 2020, the Virginia Department of Social Services ("DSS") investigated allegations that Mother had physically abused Child. Ultimately, DSS concluded that the allegations of physical abuse were "[u]nfounded."^[2]

During the pendency of the custody case, Father filed a petition for protection from domestic violence on behalf of Child, alleging abuse by Mother. At the initial hearing on the matter, the circuit court issued a Temporary Protective Order giving sole custody of Child to Father. Following the issuance of the order, Father maintained custody of Child and Child began to meet with a therapist ("Therapist").

The related final protective order hearing followed, wherein the court found that Mother had physically abused Child. The court issued a Final Protective Order, granting Father sole custody of Child and giving Mother access to Child through Skype^[3] three times per week.

In 2021, Father filed a document titled Amended Complaint for Modification of Custody ("modification filing") in the custody case, requesting sole custody of Child. However, during a subsequent hearing in the custody case, the court refused to accept the modification filing as submitted because Mother had not been provided sufficient notice of the filing in advance of the hearing.^[4] Father then requested leave to amend, rather than to refile, the modification filing for the sake of judicial economy. Father contended that the expediency would lead to quicker stability for Child. The court permitted Father to amend the filing, treating it as a newly filed motion to modify custody ("amended motion").^[5]

Next, Father filed a motion to appoint a best interest attorney who would decide whether to waive Child's privilege regarding Therapist. The court granted Father's motion to appoint a best interest attorney who waived privilege as to relevant information regarding Child's therapy.

Mother filed discovery, which included interrogatory questions to Father. One interrogatory asked Father if he had "sought or received treatment or therapy at any time during the past 10 years for any physical, mental, or emotional condition" and to "describe the condition and the treatment or therapy provided, state the date or dates of treatment or therapy, and identify all persons providing treatment or therapy." Father replied that he had received counseling from a professional counselor ("Counselor") at For Every Mountain Counseling Services from October of 2020 through March of 2021 "to seek assistance with his new circumstances following [Mother's] abuse of [Child]." Subsequently, Mother requested additional information regarding the dates of Father's counseling sessions and the opinions of Therapist.

As part of a pendente lite hearing later in 2021, the court ordered Father to provide the additional information Mother requested regarding Father's counseling and Child's therapy sessions. Following the hearing, the court issued a pendente lite order superseding the final protective order and granting Mother unsupervised visitation with Child on specified weekends.

Father provided additional details about his counseling and Child's therapy sessions. According to Father's correspondence, Father attended counseling every other week from October 31, 2019, until December 14, 2020, and subsequently as needed. Additionally, the correspondence indicated that Father had been originally diagnosed with a single major depressive episode.

With respect to Child's therapy, Father provided a question-and-answer sheet completed by Therapist. The sheet detailed Therapist's belief that Child was traumatized as a result of instances of physical discipline by Mother. Child was diagnosed as suffering from post-traumatic stress disorder (PTSD),^[6] and Child's symptoms resolved once Child began to live with Father. Additionally, the sheet included Therapist's qualifications, such as training and experience, and the basis for Child's diagnosis.

Subsequently, Mother filed a motion in limine to prevent Therapist from testifying that Child suffers from PTSD resulting from physical abuse by Mother. Additionally, in light of contended discrepancies between the information that Father initially and subsequently provided regarding counseling, Mother issued a subpoena to Counselor.^[7]Mother also issued a subpoena to Therapist to provide documentation related to Child's therapy sessions.^[8] In response, Father moved to quash Mother's subpoenas, claiming that the subpoenas sought privileged information.

In October of 2021, a hearing on Mother and Father's motions began. The court granted Father's motions to quash and denied Mother's motion to limit Therapist's testimony. Following the hearing, the court issued an opinion granting Father's Amended Motion to Modify Custody. The court granted primary physical custody of Child to Father and joint legal custody to Father and Mother, with tie-breaking authority to Father. Mother filed a Motion to Alter or Amend, which was denied. This appeal followed.

DISCUSSION

We use three interconnected standards of review in child custody cases. In re Yve S., 373 Md. 551, 586 (2003). First factual findings are reviewed for clear error. Id. "A trial court's findings are 'not clearly erroneous if there is competent or material evidence in the record to support the court's conclusion.'" Azizova v. Suleymanov, 243 Md.App. 340, 372 (2019) (quoting Lemley v. Lemley, 109 Md.App. 620, 628 (1996)). Second, matters of law are reviewed de novo, without deference to the circuit court. In re R.S., 470 Md. 380, 397 (2020).

Third, final decisions of the circuit court are reviewed for abuse of discretion. Yve S., 373 Md. at 586. We reverse only where the court's decision was "well removed from any center mark imagined by the reviewing court and beyond the fringe of what the court deems minimally acceptable." Id. at 583-84 (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 313 (1997)).

I. Mother'S Notice of Appeal was Timely.

Father contends that this Court lacks jurisdiction over Mother's appeal because she did not file the Notice of Appeal within thirty days of the circuit court's order, entered on April 8, 2022, which disposed of Mother's Motion to Alter or Amend.^[9] Originally, Mother noted her appeal on April 25, 2022, but her notice was incorrectly docketed because the case number was incorrect. On May 13, 2022, thirty-five days after the circuit court's order, Mother amended the case number so the appeal could be properly docketed.

Under Maryland Rule 8-201(a), "the only method of securing review by the Court of Special Appeals is by the filing of a notice of appeal within the time prescribed in Rule 8-202." Maryland Rule 8-202(c) requires that, "[i]n a civil action, . . . the notice of appeal shall be filed within 30 days after entry of (1) a notice withdrawing the motion or (2) an order denying a motion pursuant to Rule 2-533 or disposing of a motion pursuant to Rule 2-532, 2-534, or 11-218."^[10] The "date that a pleading or paper is 'filed' is the date that the clerk receives it." Lovero v. Da Silva, 200 Md.App. 433, 442 (2011) (quoting Bond v. Slavin, 157 Md.App. 340, 351 (2004)) (internal quotations omitted). "Examples of deficiencies in a pleading or paper that have been held not to prevent the acceptance and filing thereof by the clerk include . . . the incorrect name of the court and docket number." Lovero, 200 Md.App. at 443 (emphasis in original) (citing Cave v. Elliott, 190 Md.App. 65, 76 (2010)).

Here Father contends that Mother's filing was untimely because she noted the incorrect case number in her original filing. However, the clerk received Mother's Notice of Appeal within thirty days of the circuit court's order...