Holloway v. Holloway

TAMMY ALLISON HOLLOWAY v. STEPHEN WILLIAM HOLLOWAY

No. 0392

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2020

February 24, 2021

Circuit Court for Montgomery County

Case No. 143372FL

UNREPORTED

Arthur, Shaw Geter, Wells JJ.

Opinion by Shaw Geter, 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.

This is an appeal from an order of the Circuit Court for Montgomery County, awarding primary physical custody of the parties' minor child to appellee and joint legal custody to both parties, with final tie-breaking authority to appellee. Appellant timely appealed and presents the following questions for our review:

1. Did the trial court err as a matter of law in denying appellant's Motion to Transfer Jurisdiction and Request for Hearing—without a hearing—when Maryland Rule 2-311(f) requires the trial court to hold a requested hearing before rendering a decision disposing of a defense?

2. Did the trial court err when it held that it had continuing exclusive jurisdiction to entertain appellee's motion to change custody without determining whether the jurisdictional requirements of Md. Code Ann. Fam. Law § 9.5-202(a) were satisfied?

3. Did the trial court err when it determined that it was not an inconvenient forum without a hearing or determining whether the requirements of Md. Code Ann. Fam. Law § 9.5-207(b) were satisfied?

4. Did the trial court err as a matter of law in refusing to consider the earlier court-ordered Custody Evaluator's report and evidence of appellee's history of abusing appellant and anger management problem?

5. Did the trial court take an improperly narrow and biased view of appellant's decision to move to Texas and blame her for leaving?

For reasons set forth below, we affirm the judgment of the circuit court.

BACKGROUND

Appellant, Tammy Holloway, ("Mother") and appellee, Stephen Holloway, ("Father") were married on January 19, 2014 and are parents of the minor child, T.H., born in 2014. The parties separated in January 2017 and Mother filed a Complaint for Absolute Divorce on March 16, 2017. As part of the divorce proceedings, the court ordered a Custody and Visitation Evaluation which was placed on the record at a status hearing onAugust 25, 2017. The evaluation noted, inter alia, that there had been incidents of domestic violence between the parties. The evaluator recommended that Mother be awarded primary physical custody and sole legal custody of T.H., and that Mother inform Father of any legal custody decisions made regarding T.H.

On November 6, 2017, the parties entered into an agreement, which was placed on the record. The agreement provided that Mother would have primary physical custody of T.H. The parties also agreed to give 90 days' notice if either party intended to move more than 30 miles from the Washington, D.C. metropolitan area. Following a hearing on the issues of legal custody and child support, the court, on November 20, 2017, granted sole legal custody to Mother and entered an order incorporating the parties' agreement.

In July 2018, Mother, an attorney, requested a position at her employer's Grand Prairie, Texas office. Mother said she requested the transfer because:

[She's] from Texas. [She] grew up there. All of [her] family is there. All of [her] siblings are there. All of [her] nieces and nephews are there. All of [T.H.]'s cousins are there. There's [sic] no state taxes in Texas. The cost of living is way lower. So, [her] paycheck was way higher and it also gave [her] promotion potential since [she] was the only person that volunteered to go down there when the other attorneys left that office. There were no attorneys there.

After being awarded the transfer, Mother notified Father of her intent to move to Texas via email and certified letter on September 24, 2018. Mother, in her notice, included a proposed modified access schedule that would give Father a total of twenty-five to thirty days with T.H., whereas he had 146 scheduled overnights under their original access agreement.

Father filed a Motion for Modification of Custody on October 22, 2018, seekingsole physical and legal custody of T.H. On Christmas Day 2018, without notification to Father, Mother moved to Texas, taking T.H. with her. Father filed an Ex-Parte Emergency Petition for Custody and Request for a Hearing on December 31, 2018. Mother filed an Answer to Father's Motion for Modification of Custody, a Counter-Motion for Modification of Access, and a Motion for Modification of Child Support. Mother also filed an Amended Motion for Modification of Access and an Amended Motion for Modification of Child Support. Father filed an opposition, addressing both motions. Following a pendente lite hearing on June 10, 2019, the parties entered into an agreement, which they placed on the record. Father received temporary summer access with T.H. for, for 3 weeks in July 2019.

Mother then filed an Answer and Response to Father's Ex-Parte Emergency Petition for Custody and a motion in opposition. On July 3, 2019, a hearing was held on Father's Ex-Parte Emergency Petition for Custody, and the court granted his petition. On July 19, 2019, Father filed an Amended Complaint for Modification of Custody and Mother filed a respective answer. Mother filed a Motion to Transfer Jurisdiction and a Request for a Hearing on August 1, 2019, challenging the court's subject matter jurisdiction and arguing that Maryland was an inconvenient forum. Mother's motion was denied without a hearing.

A hearing on the issues of modification of custody, access, and child support was held on December 23, 2019 and January 2, 2020, and both parties testified. During the hearing, Mother seemed to contend that T.H. might not be safe in Father's care. The following colloquy, in relevant part, occurred:

[FATHER'S COUNSEL]: Did you have any reason to believe that [T.H.]wasn't safe while he was with Mr. Holloway in 2019?

[MOTHER]: Yes. Yes, and no.

[FATHER'S COUNSEL]: What does that mean, Ms. Holloway?

[MOTHER]: I believe that given the contentious background of Mr. Holloway and I, and the various, the various trials that we've had of over the past three years, and the different orders that have been granted, that I never feel that he would intentionally hurt [T.H.] just because, but I feel like he would do things to hurt me.

[FATHER'S COUNSEL]: Has Mr. Holloway ever hurt [T.H.]?

[MOTHER]: No.

[FATHER'S COUNSEL]: So, why do you feel that Mr. Holloway would suddenly hurt [T.H.] while he was with [T.H.] for three weeks this year?

[MOTHER]: Because Mr. Holloway was physically abusive to me and it didn't start, it didn't start from day one.

[FATHER'S COUNSEL]: Has there been any indication at all that Mr. Holloway has ever been physically abusive to [T.H.]?

[MOTHER]: No.

[FATHER'S COUNSEL]: All right. Do you think it's important for [T.H.] to maintain a relationship with his father?

[MOTHER]: Yes.

[FATHER'S COUNSEL]: And do you think it's important that he has physical contact with his father?

[MOTHER]: Yes.

[FATHER'S COUNSEL]: How important do you think that is?

[MOTHER]: I think it's very important. I think it's in [T.H.'s] best interest to spend time with his father.

[FATHER'S COUNSEL]: Do you think that [T.H.] spending time with Mr.Holloway helps [T.H.'s] growth?

[MOTHER]: Yes.

[FATHER'S COUNSEL]: Do you believe that Mr. Holloway loves [T.H.]?

[MOTHER]: Yes.

[FATHER'S COUNSEL]: Do you believe that Mr. Holloway would ever hurt [T.H.]?

[MOTHER]: Again—

[FATHER'S COUNSEL]: Not excluding anything regarding you, do you believe that he would ever hurt [T.H.] as a person?

[MOTHER]: That's a very complicated question for me, just given the background, I would hope not. I don't think so, but—

[FATHER'S COUNSEL]: Uh-huh.

[MOTHER]: —there is always the slight possibility.

* * *

THE COURT: My question to her was the last time, because she testified that she was afraid for her safety, so I wanted to know, and I think it's relevant, the last time. So, whatever happened before she got married and in the early years, that's not—

[MOTHER'S COUNSEL]: All right.

THE COURT: —that's not something I'm going to consider.

[MOTHER'S COUNSEL]: Oh, well, I'm going to ask the [c]ourt to look at the custody evaluation in this case.

[FATHER'S COUNSEL]: And I —

THE COURT: I'm not going to look at the custody evaluation. I mean she, the custody evaluation to me would only be relevant if she felt that her son wasn't safe with Mr. Holloway and she's not saying that.

[MOTHER'S COUNSEL]: Well, it goes into detail, as I understand. I'm not [sic], the abuse by Mr. Holloway against her [sic], and then certainly that was read by Judge Salant, I presume, when making his findings in this case, which is very relevant from her overall issue and as early as '17 stating that she felt the need at some point in time when things got settled with this divorce situation, she needed to get out of this area, and that is all relevant for the [c]ourt to consider when determining initially what her motive is and what her reasons were for moving out of the area.

THE COURT: If the last time he assaulted her was January of 2017, I don't find that to be relevant that she left in December of 2018. I just don't.

* * *

(emphasis added). At the conclusion of the hearing, the court took the matter under advisement. On May 21, 2020, the court issued its memorandum opinion and order, granting in part and denying in part Mother's Amended Motion for Modification of Access and Child Support, and granting Father's Amended Complaint for Modification of Custody. The court awarded primary physical custody of T.H. to Father and joint legal custody to the parties, with final tie-breaking authority to Father.

STANDARD OF REVIEW

"When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence." Md. Rule 8-131. An appellate...