Martin v. Meyer

MARIA MARTIN v. PETER MEYER

No. 1796

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

June 20, 2016

UNREPORTED

Eyler, Deborah S., Berger, Reed, JJ.

Opinion by Reed, 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 a custody modification case, following an acrimonious divorce, in which Maria Martin ("Mother") alleges—and, indeed, steadfastly maintains—that Peter Meyer ("Father"), exposed their four children to pornographic materials, which, perhaps not coincidentally, depict the same subject matter as the lurid "secret life" led by Father that (at least in part) caused Mother to file for divorce in the first place. The dispute centered on the children's behavior which, depending on who you ask, was either: (A) benign collateral damage of a terribly contentious parental conflict, or (B) highly-sexualized behavior that can only be explained by the children's direct exposure to Father's preferred type of pornography.

Following the divorce, Father was to have the children for six overnights in a two week period, as per the terms of a custody agreement. In June 2014, following a mental health evaluation of their eldest child, Mother filed her Defendant/Counter-Plaintiff's Combined Emergency Motion for Immediate Stay of Custody Order and Motion for Expedited Review of Custody Order in the Circuit Court for Montgomery County, and the trial court set the matter in for a four-day custody trial that ultimately took place a year later in June 2015.

After receiving dozens of exhibits and hearing testimony from 22 witnesses, including several mental health professionals and numerous fact witnesses, the trial court issued an oral ruling in September of that year, and found that: (1) no material change in circumstances occurred; (2) any change in the children's behavior was due to the parental conflict, not exposure to pornographic images; (3) Mother was substantially justified in bringing the litigation; and (4) Mother was not entitled to reimbursement of any of her fees.

Feeling aggrieved by several decisions of the trial court, Mother appealed, and presents the following questions for our review:

1. Did the trial court err in allowing the undisclosed expert testimony of Emily Jones?

2. Did the trial court err in excluding testimony concerning the children's usage of atypical bondage terminology on the grounds that such testimony constitutes hearsay?

3. Did the trial court err in finding that credible expert testimony supported the conclusion that the children's sexualized behaviors could be explained by parental conflict alone?

4. Did the trial court err i[n] failing to award Mother attorney's fees?

Perceiving no error, we answer all four questions in the negative, and accordingly, we affirm the judgments of the trial court.

FACTUAL AND PROCEDURAL HISTORY

Mother and Father were married in 1999 and have four children together: S.M., born August 2004; M.M., born November 2005; L.M., born June 2008; and W.M., born July 2009. The parties lived and parented together, each taking an active role in their children's lives, until August 2012, when Mother learned—as the trial court put it—that Father "had been living another secret life in addition to the one he lived with her and their children." After initially denying it, Father eventually confessed to Mother that, since 2009, he had sought and found multiple sex partners on an online dating website that caters to affluent men. Father explained that he was a masochist (a fact previously unbeknownst to Mother), and he had used the website to seek relationships with women who were willing to interactwith him accordingly. On top of that, Father also confessed to concealing significant financial issues from her; issues that stemmed directly from his extramarital infidelities.¹

Mother, concerned about the effect of Father's sexual preferences on the children, began restricting Father's contact with them, limiting it to only supervised visits. The parties agreed that Father needed professional help, and in September 2012, Father entered a six-week program for sexual addiction treatment at a rehabilitation clinic in Boca Raton, Florida. Prior to discharge, Mother advised Father that she did not want him returning to the marital home, and the parties have lived separately ever since.

Upon his return to Maryland, the parties came to an agreement regarding custody, where Father would have limited access to the children that was always supervised by a third party, usually Mother. Father sought to increase his time with the children, but Mother—whose fears ranged all the way from potential inadvertent exposure to images on Father's electronics to Father's direct sexual abuse of the children—resisted. In an effort to resolve these issues out of court, the parties jointly retained Dr. William Zuckerman, a licensed clinical psychologist, to evaluate the children and each parent, and to render findings and recommendations regarding an appropriate custodial arrangement as a part of their cooperative divorce process. After an exhaustive evaluation, Dr. Zuckerman found that Father was not a danger to the children, and recommended shared custody. Despite that recommendation, Mother continued to restrict Father's access to the children.

In response, Father filed a Complaint for Custody and Other Relief on July 15, 2013, in the circuit court. After the matter came before the court for two days of hearings, on September 19, and October 16, 2013, the court granted Father's Motion for Appointment of Best Interests Attorney for the children (a move opposed by Mother), and granted Father unsupervised access pendite lite. After the first of three planned days for the custody merits trial, the parties agreed to share custody on an almost equal basis, and the agreement was placed on the record and incorporated into an order by the trial court on January 29, 2014. An order of absolute divorce was entered on April 24, 2014.

As part of the January 2014 custody agreement, the parties agreed to have the oldest child, S.M, undergo a psychological evaluation.² The parties eventually agreed on a neutral expert, Dr. Alicia Meyer,³ to perform the evaluation.⁴ According to Mother, after "[Dr. Meyer's] evaluations identified a much broader range of concerning sexualized behaviors than had been presented to the court in October 2013," she filed her "Defendant/Counter-Plaintiff's Combined Emergency Motion for Immediate Stay of Custody Order and Motionfor Expedited Review of Custody Order" ("Mother's Motion"). Mother's Motion led to a four-day custody modification trial involving all four children, that was held from June 1-4, 2015, where the court heard from numerous mental health experts, teachers, former and current nannies, and the parents themselves.

On September 21, 2015, the trial court issued an oral ruling on Mother's Motion, in favor of Father. After rejecting Mother's allegations by carefully outlining and applying the evidence that was presented at trial, the trial court explained its rationale:

The issues before me are virtually identical in theme as those that were before the [c]ourt at the [pendete lite] hearing and before the [c]ourt at the time the January, 2014 [sic] custody order was entered. That [Mother] alleges now as she alleged then that [Father] is sexually abusing the children or exposing them to sexually explicit material. And [Mother]'s evidence does not support such a finding.

This [c]ourt is concerned about the mental health of these children. Had the [c]ourt found that their statements and behaviors constituted a material change in circumstance, the [c]ourt opines now that their best interest[s] still would not be served by modifying custody as requested by [Mother]. As already noted, there has been no credible evidence presented which would link the children's concerning behaviors to any conduct of [Father] or to any exposure to inappropriate material while in [Father]'s care.

In contrast to the allegations made by [Mother], the evidence presented would support a finding that [Father] is a loving and attentive father and a fit parent who has been dedicated to treating his sexual addiction.

That being said, given the concerns presented in this case, the [c]ourt will order that [Father] be prohibited from using any electronic device that he shares with his children to access pornography. I would strongly urge [Father] to keep any personal computers stored in a manner that is completely inaccessible to the children.

The evidence and testimony presented gives the [c]ourt great concern regarding [Mother]'s acceptance of reality; her interference with [Father]'s legal and physical custodial rights; and the effects of her actions on the children.

In Dr. Meyer's addendum, she noted that [Mother]'s attempt to gather evidence to support her hypothesis that her children have histories involving sexual abuse, she may be unintentionally distorting or inappropriately interpreting events in her children's lives.

The court also ordered that there would be no changes in the children's therapists without consent of both parties. With regard to Mother's request for attorney's fees, the court ruled that both parties were substantially justified in maintaining the action, but that Mother was not entitled to fees. The court entered its written order reflecting those rulings on October 2, 2015, and Mother noted timely appeal.

Additional facts will be included as needed.⁵

DISCUSSION

I. EXPERT TESTIMONY OF EMILY JONES

The majority of Mother's appeal centers on the trial court's decision to allow Emily Jones, one of S.M.'s former therapists, to testify over Mother's objection. On the third day of trial, Mother rested her case. As Father's counsel began to call Ms. Jones as their first witness, Mother's...