Livingston v. Jones

ANDRE L. LIVINGSTON v. SIMONA M. JONES

No. 2255

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

July 21, 2017

Circuit Court for Howard County

Case No. 13-C-16-106920

UNREPORTED

Nazarian, Shaw Geter, Eyler, James R. (Senior Judge, Specially Assigned), JJ.

Opinion by Nazarian, 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.

Andre Livingston ("Father") and Simona Jones ("Mother") married, had one child, and divorced, all while they lived in Connecticut. In 2007, Mother and child moved to Maryland and Father stopped paying child support. Several years later, Mother filed a Petition for Contempt and Motion [to] Enforce Judgment and a Complaint for Modification of Child Support in the Circuit Court for Howard County, and Father responded with a Petition for Contempt for Failure to Compl[]y with the Parties Judgment of Absolute Divorce and a Counter-Complaint to Modify Child Support. After a hearing, a magistrate judge issued a Report and Recommendation (the "Report") that recalculated Father's child support obligation, calculated arrears due since 2007, ordered Father to pay a portion of Mother's attorney's fees, and denied Father's counter-complaint and both parties' contempt petitions. Father filed Exceptions to the Report (the "Exceptions"), but the circuit court dismissed them for two procedural reasons—untimeliness and failure to order a transcript—and adopted the Report. Father filed a Motion to Reconsider, Alter or Amend Judgment (the "Motion"), which the court denied. Father appeals the denial of the Motion, and we affirm.

I. BACKGROUND

Mother and Father married on September 16, 2000 and divorced about four years later. During the marriage, they had one child. A 2004 Connecticut order, which incorporated the parties' Separation Agreement, required Father to pay Mother $172 per week for child support and provided that the parents would share equally the costs of child's daycare and extracurricular activities. Father paid this amount until August 2007—the same time that Mother and the child moved to Maryland¹—and Father alleges that the parties later agreed that he would pay Mother $31 or $41 per week for child support depending on whether he or Mother claimed the child dependency tax credit for that year. But this alleged agreement was never reduced to an order, nor is there any evidence that the 2004 Connecticut order was ever modified to reflect it. Regardless, Father did not pay Mother any child support after 2007,² except in January 2016, when he made two payments of $250.

As a result of Father's nonpayment of child support, Mother filed a Petition for Contempt and Motion [to] Enforce Judgment and a Complaint for Modification of Child Support in the circuit court on March 21, 2016.³ After Mother filed suit, Father promptly resumed paying Mother $172 per week (the amount in the 2004 Connecticut order, not the reduced amount in the alleged oral agreement). Father responded to Mother's petition and answered her complaint, then filed his own contempt petition, in which he alleged that Mother had failed to pay childcare and extracurricular expenses while deducting for the child on her tax returns in violation of the Connecticut order. Father also filed a Counter-Complaint to Modify Child Support because his "income ha[d] substantially decreased and the minor child's needs ha[d] increased."⁴

The magistrate held a hearing on the parties' contempt petitions, Mother's complaint, and Father's counter-complaint.⁵ On September 21, 2016, the magistrate issued the Report, which recalibrated Father's ongoing child support obligation, calculated Father's child support arrears, and ordered Father to pay $5,000 toward Mother's attorney's fees. The Report also determined that the 2004 Connecticut order had never been modified, and denied Father's counter-complaint, as well as both parties' petitions for contempt.

Father filed his Exceptions to the Report on October 4, 2016. On November 2, 2016, through two separate orders, the circuit court dismissed Father's Exceptions as untimely, vacated the hearing, and adopted the Report. In the Motion, which he filed on November 10, 2016, Father contended that he had filed his Exceptions on time and asked the court to consider them on the merits (in one paragraph, he incorporated his merits arguments by reference). Mother responded to the Motion on November 22, 2016, and on December 29, 2016, Father filed a supplement. The court entered an order denying the Motion on December 2, 2016, and Father filed a timely appeal. We will discuss additional facts below, as necessary.

II. DISCUSSION

The circuit court dismissed Father's Exceptions as untimely, then stated that "[e]ven if [it] were to consider [Father]'s Exceptions as timely filed, they are still deficient" because Father failed to comply with Maryland Rule 9-208(g). Father asks us on appeal to review both the court's decision to dismiss his Exceptions and his challenges to the Report itself.⁶ But because he appealed only from the circuit court's order denying his Motion, which upheld the decision to dismiss the Exceptions on procedural grounds, we review only the circuit court's procedural conclusion and will not consider, for the first time, Father's substantive challenges to the Report. See Green v. Green, 188 Md. App. 661, 674 (2009). We review the court's decision not to revisit the Report's recommendations for abuse of discretion, see Lebac v. Lebac, 109 Md. App. 396, 401-02 (1996), a highly deferential standard:

"Abuse of discretion" is one of those very general, amorphous terms that appellate courts use and apply with great frequencybut which they have defined in many different ways. It has been said to occur where no reasonable person would take the view adopted by the circuit court, or when the court acts without reference to any guiding rules or principles. It has also been said to exist when the ruling under consideration appears to have been made on untenable grounds, when the ruling is clearly against the logic and effect of facts and inferences before the court, when the ruling is clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result, when the ruling is violative of fact and logic, or when it constitutes an untenable judicial act that defies reason and works an injustice.

North v. North, 102 Md. App. 1, 13-14 (1994) (internal quotations and citations omitted).

Father argues first that the court erred in concluding that he filed his Exceptions late because it failed to account for the time allotted for mailing, see Maryland Rule 1-203(c), when it found that exceptions were due by October 3, 2016. In this one regard, he's right. Maryland Rule 9-208(f) requires that "[w]ithin ten days after recommendations are placed on the record or served pursuant to section (e) of this Rule, a party may file exceptions with the clerk." The magistrate filed its Report on September 21, 2016, and ten days after that day was October 1.⁷ Adding three days for mailing extended the due date to October 4, 2016. See Bush v. Pub. Serv. Comm'n of Md., 212 Md. App. 127, 133 (2013) (stating that Rule 1-203(c), which affords parties an extra three days beyond the applicable period, is triggered when a party receives service of process by mail and has a right or obligation to act within a specific time after being served by mail). Accordingly, Father's Exceptionswere not due October 3, as the circuit court determined, but on the following day, when Father filed them.

We disagree with Father's next contention, though. He argues that the court erred in dismissing his Exceptions for non-compliance with Maryland Rule 9-208(g), which requires a party filing exceptions to do one of the following at the time that the party files exceptions:

(1) order a transcript of so much of the testimony as is necessary to rule on the exceptions, make an agreement for payment to ensure preparation of the transcript, and file a certificate of compliance stating that the transcript has been ordered and the agreement has been made; (2) file a certification that no transcript is necessary to rule on the exceptions; (3) file an agreed statement of facts in lieu of the transcript; or (4) file an affidavit of indigency and motion requesting that the court accept an electronic recording of the proceedings as the transcript. . . . The transcript shall be filed within 30 days after compliance with subsection (g) (1) or within such longer time, not exceeding 60 days after the exceptions are filed, as the magistrate may allow. For good cause shown, the court may shorten or extend the time for the filing of the transcript. . . . The court may dismiss the exceptions of a party who has not complied with this

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