Gibbs v. Chalk

FRANCESCA GIBBS v. WILLIAM DAVID CHALK

No. 1186

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

April 10, 2020

Circuit Court for Anne Arundel County

Case No. C-02-FM-18-002125

UNREPORTED

Berger, Arthur, Eyler, James R. (Senior Judge, Specially Assigned), JJ.

Opinion by Arthur, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Appellant Francesca Gibbs ("Mother") and appellee William David Chalk ("Father"), agreed to share joint physical and legal custody of their two-year-old daughter ("Daughter") and six-year-old son ("Son"). Their ensuing disputes resulted in a hearing at which the Circuit Court for Anne Arundel County ordered, among other things, that Son would move from a private parochial school to a public school for the 2019-20 school year; that Mother would be responsible for arranging for child care when the children are in her physical custody and that Father would be responsible for arranging for child care when the children are in his physical custody; and that Mother must pay $1750.00 of the attorneys' fees and costs incurred by Father. The award of fees and costs was later reduced to a judgment.

Representing herself, Mother noted this appeal, raising the following questions:

1. Did the circuit court err in failing to afford Mother due process at the merits hearing on school choice and daycare?

2. Did the circuit court err in determining the parties' minor son could change schools without consideration of the factors relevant to the child's best interest?

3. Did the circuit court err in issuing an order for Mother to pay Father's attorneys' fees without consideration of the factors set forth in Md. Code Ann., Fam. L. § 12-103?

4. Did the circuit court err in denying [Mother's] request for an appointment of a Best Interests Attorney for the minor children?

For reasons that follow, we shall affirm the orders relating to school choice, child care, and the appointment of a Best Interests Attorney. Pursuant to Md. Rule 8-604(d), however, we shall vacate the judgment for attorneys' fees and costs without affirming,reversing, or modifying it, and remand the case for further proceedings consistent with this opinion.

BACKGROUND

Terms of Joint Legal Custody

Mother and Father are both lawyers. They reside separately in Anne Arundel County.

Mother and Father initially operated under an interim custody, visitation, and support order dated September 4, 2018 (and docketed on September 15, 2018). Under the order, Mother and Father agreed to share physical custody of the children on a 2-2-3 schedule.¹ Among other things, the order required Father to pay $3000.00 per month to Mother as child support and to pay the tuition for Son to attend a private parochial school. In addition, the order provided that if Mother and Father were unable to agree on the selection of a single child-care provider who could travel between both of their homes to attend to the children, Father would pay $13.00 per hour to Mother's current child-care provider for the 20 hours of services that she would render while Mother had physical custody of the children and was at work. Father would be responsible for paying thechild-care provider who attended to the children while he had physical custody and was at work.

By September 27, 2018, Mother and Father had agreed on the terms of a final consent order. They appeared, with counsel, before a magistrate to put those terms on the record. According to Father's counsel, Mother and Father agreed, among other things, that:

• they would have joint legal custody and shared physical custody;

• the schedule for custody and visitation in the interim order would become the schedule for custody and visitation in the final order;

• Father would pay $3500.00 per month in child support beginning on October 1, 2018;

• Father would continue to pay Son's private school tuition as long as both of the parties agreed that Son would attend that school;

• Father would continue to pay "Molly," the so-called "traveling nanny," who went back and forth between the parents' houses to care for the children; and

• Mother and Father would use a "parent coordinator" for one year to assist them in any disputes that might arise in their exercise of joint legal custody.

Except to clarify that the child-support payment was due on the first of the month, Mother had no objections to the recitations of the terms by Father's counsel. Nonetheless, Mother and Father were unable to agree on the terms of a written order that embodied their agreement. Consequently, on January 7, 2019, the court entered an order that incorporated the terms that Father's counsel had put on the record, as reflected in the transcript of the September 27, 2018, hearing.

Custody Disputes

Mother and Father accused each other of violating the terms of the consent order. Because they were unable to resolve the disputes through a parent coordinator, judicial intervention became necessary.

At issue here are disagreements about what school Son would attend for first grade (i.e., the 2019-20 school year) and about the child-care arrangements for both Son and Daughter. Although Mother tentatively enrolled Son at a private parochial school for first grade, Father did not consent. Instead, he preferred that Son attend a public school near his residence. In addition, Mother discharged the "traveling nanny," hired a substitute nanny, and tentatively enrolled Daughter at the private school for full-time child care beginning in the fall of 2019.

Claiming that Mother had repeatedly violated the terms of the consent order pertaining to shared legal custody, Father filed a petition for contempt. That petition resulted in, among other things, the scheduling of a half-day hearing on school choice and child care on July 11, 2019.

Meanwhile, Father moved to modify the determination of legal custody, so that he would have either sole legal custody or tie-breaking authority. He requested that the issue of legal custody be consolidated with the issue of school choice, because they both concerned "whether the one parent can meaningfully involve the other in important decisions." Mother responded by seeking a modification of legal custody in her favor.

The July 11, 2019, Hearing

The hearing on school choice and child care was scheduled to begin at 9:00 a.m. on Thursday, July 11, 2019.

At 1:22 a.m. that morning, Mother's counsel emailed supplemental discovery responses to Father's counsel. At 4:09 a.m., Mother's counsel sent Father's counsel the following email:

We are scheduled to appear before his Honor tomorrow morning [sic] for a hearing in the above referenced case. Unfortunately, during our trial prep this evening at my office, [Mother] became very ill. I am with her at St. Joseph's Hospital and I do not think we will be able to proceed as scheduled under the circumstances. I am copying [Judge Crooks's law clerk] and will contact our witnesses to put them on notice as well.

Will you kindly contact me on my cell to confirm receipt of my email and to let us know how Judge Crooks would like to handle rescheduling.

Father's counsel must have gotten up early to prepare for the hearing. She replied at 4:38 a.m.:

Per the docket, we are appearing before Judge McCormick [sic] this morning, not Judge Crooks. You have emailed Judge Crooks's Chambers.

Please advise as to what is going on. You did not include your cellphone in the email below.

After receiving no response, Father's counsel obtained the cell phone number for Mother's counsel from her letterhead, but was unable to reach her. Father's counsel sent another email at 7:49 a.m.:

I have not heard anything back in response to my earlier emails, and my calls to both your office number and your cell go to the same voicemail box that says it is "full and not accepting messages." Please get back to me immediately since we have witnesses coming in from out of area that we are calling off in response to your representations and [Mother's] textmessages to [Father's nanny] Molly Trujillo that the hearing will be rescheduled.

The timing on this is extremely concerning. While I hope there is no genuine medical issue with your client, the lack of response has created a lot of unnecessary confusion, wasted time and drama.

Please respond.

At 9:00 a.m., Father and his counsel, still having not heard from Mother or her counsel, appeared before Judge McCormack. Father's expert witness on school selection remained on standby, while Father, his wife, and other witnesses (including some whom Mother had subpoenaed) were present at the courthouse. When neither Mother nor her counsel appeared, the judge conducted a chambers conference in which Mother's counsel participated by telephone.

After the call, the trial judge made a record of what she had learned. She expressed her disapproval of Mother's effort to postpone the case at 4:00 a.m. on the morning when the hearing was to begin. She said that she had received a letter stating that Mother was in an emergency room and could return to work the following Monday, but she remarked, "We have no idea what is actually going on with [Mother.]" She also remarked that Mother's counsel and Mother's former counsel, who had apparently not withdrawn his appearance, were required to be in court that morning, but were absent. The judge scheduled a new hearing for July 30, 2019, on the issues of school choice and child care, but said that the hearing would last only two hours and that the parties could call no witnesses other than those who had been subpoenaed to testify at the aborted hearing. Finally, she expressed her intention to award attorneys' fees to Father for timebilled beginning at 4:37 a.m. that morning, but left the precise amount to be determined at a subsequent hearing.

In response to a question from the clerk, the judge...