Magnas v. Perlman

LISA MAGNAS v. DANIEL PERLMAN

No. 01324

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

December 13, 2018

Circuit Court for Montgomery County

Case No. 121273

CHILD ACCESS

UNREPORTED

Leahy, Shaw Geter, Salmon, (Senior Judge, Specially Assigned), JJ.

Opinion by Leahy, 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 Lisa Magnas appeals from an order entered in the underlying case in the Circuit Court for Montgomery County, which resolved a motion for contempt and a motion to modify a visitation order filed by Appellee Daniel Perlman. In the order dated July 26, 2017, the trial court found Ms. Magnas to be in constructive civil contempt for failing to comply with the provisions of the amended custody and visitation order ("Amended Custody Order") that the court entered on May 7, 2015. As a result, the court imposed a sentence of 15 days' incarceration that was suspended upon Ms. Magnas' compliance with the modified visitation schedule. The trial court found, further, that there had been a material change in circumstances since the original entry of the order warranting a modification of the visitation schedule. As relevant to this appeal, the court subsequently granted Mr. Perlman access to the children on the first night of Rosh Hashana and the first night of Sukkot in 2017 and every year thereafter.¹

Before this Court, Ms. Magnas presents eleven questions, some of which we have rephrased, reordered, and consolidated as follows:²

1. Did the trial court abuse its discretion in refusing to continue the hearing and proceeding in the absence of Ms. Magnas?

2. Did the trial court err in "conduct[ing] three Show Cause hearings and a Motion for Modification of Visitation, without any delineation among the different issues"?

3. Did the court commit reversible error in finding [Ms. Magnas] in contempt of a court order?

4. Did the trial court err in excluding expert testimony from Rabbi Rosenbaum?

5. "Did the trial court commit reversible error in its so-called 'purge' provision?"

6. "Did the trial court commit reversible error in fashioning a visitation modification against the best interests of the children and which impinges on [Ms. Magnas'] right to practice her religion?"

We affirm the circuit court's decision to modify the visitation order. We also affirm the circuit court's finding that Ms. Magnas was in constructive civil contempt of the visitation order. For the reasons stated below, however, we vacate the circuit court's contempt sanction and remand to the circuit court to issue a written order that specifies the sanction imposed for the contempt and an appropriate purge provision.

BACKGROUND

A. The Relationship of the Parties

Ms. Magnas and Mr. Perlman have three children together: Ad., born in 2008, and twins, born in 2009. The parties were never married and never lived together; since birth, the children have lived with Ms. Magnas at her home in Silver Spring, Maryland. Mr. Perlman lives in Fort Lee, New Jersey. Ms. Magnas practices Orthodox Judaism, and Mr. Perlman, while also a member of the Jewish faith, is non-Orthodox.

On July 24, 2014, Mr. Perlman filed a complaint for visitation before the Circuit Court for Montgomery County, requesting visitation every "2nd and 4th week of the month[;]" "rotating holidays, birthdays, [and] summer vacations;" and for inclusion in eachof the boys' bar mitzvahs. Ms. Magnas opposed Mr. Perlman's requested visitation schedule, alleging that Mr. Perlman's location out-of-state would make visitation a hardship and would "put unhealthy demands" on the children contrary to their best interests due to the children's strict observance of the Jewish religion. On December 7, 2014, Ms. Magnas filed a pro se counterclaim for sole physical and legal custody of the children. Later that month, the circuit court entered an Order of Referral, granting Mr. Perlman supervised visitation, which provided for six visits, lasting two hours each, to take place within the following three months. The Order set a review hearing for March 21, 2015. Meanwhile, Mr. Perlman filed a pro se counterclaim for joint legal custody and an amended complaint for visitation. A flurry of motions and court proceedings followed Mr. Perlman's request for visitation. We will only address those procedural facts that are relevant to the issues before this Court.

B. The Custody and Visitation Order

On April 13, 2015, the parties appeared before Judge Sharon Burrell for a two-day trial on the merits. In an order entered on May 1, 2015, Judge Burrell granted sole physical and legal custody of the children to Ms. Magnas, and a right of regular visitation to Mr. Perlman. Judge Burrell's order ("the Custody Order") included the following provisions relevant to the case on appeal:

A. Regular Visitation

1. Beginning on May 2, 2015, [Mr. Perlman] shall have visitation with the Minor Children every other weekend on Saturday and Sunday. On Saturday, the visits shall be from 5:30 p.m. until 8:30 p.m. The next day, Sunday, the visits shall be from 8:30 a.m. to 2:00 p.m.2. Beginning on August 1, 2015, the visits shall be overnight, from 5:30 p.m. on Saturday until 5:30 p.m. on Sunday. The visits shall be in Maryland.

* * *

B. Holidays

1. [Ms. Magnas] is to notify [Mr. Perlman] no later than one month in advance of Sukkot as to the dates that he can participate with her and the Minor Children.

* * *

3. Each year [Mr. Perlman] shall have access to the Minor Children on one night of Chanukah and one Seder of Passover. The parties shall agree on the dates and times. If the parties are unable to agree, [Ms. Magnas] shall choose.

* * *

ORDERED, that [Mr. Perlman] shall have access to the Minor Children for at least 2 hours on their birthdays. If the Minor Children are out of town on their birthdays, [Mr. Perlman] shall have access for at least 2 hours on a day close to the birthdays; and it is further

ORDERED, that [Mr. Perlman] and [Ms. Magnas] shall meet that the Wheaton Police Station, or other mutually agreeable location, for the drop off and pick up of the Minor Children for visitation; and it is further

* * *

ORDERED, that a parent shall notify the other parent immediately if any of the Minor Children has a medical emergency[.]

C. The Amended Custody and Visitation Order

On the same day, May 1, Ms. Magnas filed an emergency motion for reconsideration, asking the court to revise the visitation order to accommodate the observance of the Sabbath. She averred that the children could not travel during the court-ordered pick-up time of 5:30 p.m. on Saturday, which was when the Sabbath began. May 7, 2015, Judge Burrell issued the Amended Custody Order, changing, in relevant part, Mr. Perlman's access with regard to the visits beginning on August 1, 2015:

A. Regular Visitation

1. Beginning on Sunday, May 3, 2016, and until Summer break commences for the schools of all of the Minor Children, [Mr.Perlman] shall have visitation with the Minor Children every other weekend on Sunday from 8:30 a.m. to 8:30 p.m.

2. On the first Sunday after the Summer break commences for the schools for all of the Minor Children until August 1, 2015, [Mr. Perlman] shall have visitation with the Minor Children every other weekend on Sunday from 10:30 p.m. to 4:00 p.m. and on Monday from 10:30 a.m. to 1:30 p.m. Counsel for [Ms. Magnas] shall provide notice to [Mr. Perlman] and to the Court of the date(s) that the Summer breaks commence.

3. Beginning on August 1, 2015, the visits shall be overnight, from one hour and twenty minutes after sundown on Saturday until twenty four (24) hours later on the following Sunday. Pursuant to the calendar presented in Court by Defendant's counsel, the first visit on August 1, 2015, shall commence at 9:20 p.m. (which is slightly less than one hour and twenty minutes for this visit only). The visits shall be in Maryland.

4. Beginning on the first visit in January 2016, the overnight visits may be out of the State of Maryland. [Mr. Perlman] must inform [Ms. Magnas] where each visit will occur and must promptly answer the phone if she calls. The weekend visits out of the State of Maryland shall be from one hour and twenty minutes after sundown on Saturday until twenty four (24) hours later on the following Sunday.

5. Summer access. Beginning in 2016, [Mr. Perlman] shall have one week of summer access with the Minor Children, from Sunday at 12:00 p.m. until the following Sunday at 12:00 p.m. [Mr. Perlman] shall notify [Ms. Magnas] by April 1 of each year as to the week desired.

* * *

ORDERED, that [Ms. Magnas] shall promptly and regularly provide [Mr. Perlman] with calendars, or copies of calendars, indicating the daily times for sundown[.]

(Emphasis added).³

D. Prior Contempt Proceedings

On March 29, 2016, Mr. Perlman filed a motion for contempt (in a series of contempt motions filed by the parties against each other),⁴ as well as an emergency motion for access, alleging that Ms. Magnas denied him access to the children during the Seder of Passover on March 29, 2016, contrary to the Amended Custody Order. Ms. Magnas opposed Mr. Perlman's petition and filed a motion to reconsider the Custody Order, arguing that, as a follower of an Orthodox Jewish tradition, she wanted the children to participate on the actual day of the Seder with her, but because Mr. Perlman "does not adhere to this strict consideration," he would be fine to have the children on any day near the Seder. The court denied Mr. Perlman's motion for contempt without a hearing. In an order entered April 13, 2016, however, Judge Dugan ordered Ms. Magnas to allow Mr. Perlman to have access to the children for one of the two nights of the Seder Passover, either April 22 or April 23, 2016.⁵ On April 22, 2016, Judge Dugan entered another orderdenying Ms. Magnas' motion to reconsider without a...