Mills v. Mills

MELISSA MILLS v. PETER MILLS

No. 400

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

June 24, 2020

Circuit Court for Prince George's County

Case No. CAD17-41098

UNREPORTED

Nazarian, Arthur, Sharer, J., Frederick (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.

This appeal arises from a custody dispute between the parents of three minor children. In 2017, the mother moved from Maryland to Utah, taking the children with her. The father brought a custody claim in the Circuit Court for Prince George's County, seeking to make the former family home in Maryland the primary residence of the children. The mother counterclaimed, seeking to make her new home in Utah the children's primary residence.

After a trial on the competing claims, the circuit court awarded "joint physical custody." Under the court's order, the children would reside with their mother in Utah during the school year, and the father would be entitled to visitation, if he wished, every other weekend in Utah. The children would reside with their father in Maryland throughout the summer and during breaks in the school year. In determining child support, the court used the statutory formula for cases of "shared physical custody" and reduced the father's child support obligation to offset travel expenses that he might incur if he exercised the visitation awarded by the court.

The mother has appealed, raising the following two questions:

I. Did the trial court err and/or abuse its discretion in its visitation schedule to [the father]?

II. Did the trial court err in its child support determination?

The answer to both questions is: Yes. For the reasons discussed in this opinion, we shall reverse the judgment and remand the matter for further proceedings.¹

FACTUAL AND PROCEDURAL BACKGROUND

A. Separation of the Parents

Peter Mills ("Father") and Melissa Mills ("Mother") married one another in 2006. Their first child, a daughter, was born in January 2010. Their next child, another daughter, was born in November 2011. Their youngest child, a son, was born in May 2016.

Before giving birth to the children, Mother worked as a professor of music education. When the children were born, she stopped working full time outside of the home and became the primary caregiver for the children. Father continued to work full time as a tax attorney. Beginning in 2014, the family lived together in an apartment in Prince George's County.

On June 26, 2017, Mother and the three children travelled for a vacation in Utah, where they planned to visit members of Mother's immediate and extended family. Mother told Father that she planned to return in early August. During July, however, Mother informed Father that she intended to keep the children in Utah indefinitely.

Mother and the children began residing in Farmington, Utah, at the home of Mother's sister. Mother enrolled the two older children in Utah public schools for the fall of 2017. Father began flying from Maryland for occasional visits with the children.

B. Competing Claims for Custody

On December 21, 2017, Mother filed for divorce in a Utah trial court. Mother sought a divorce based on irreconcilable differences, equitable division of marital property, and alimony. She requested joint legal custody of the children, sole physicalcustody of the children subject to Father's entitlement to visitation under Utah law, and child support.

Separately, on December 22, 2017, Father filed a complaint in the Circuit Court for Prince George's County, seeking a limited divorce based on the parties' separation. Father requested joint legal custody, primary physical custody, and child support.

In the circuit court, Father moved for an order establishing the court's jurisdiction to make an initial child custody determination.² Mother asked the court to decline to exercise jurisdiction over the custody claims. The court granted Father's motion and denied Mother's motion.

In the circuit court, Mother counterclaimed for joint legal custody, primary physical custody, and child support. Father amended his pleadings, abandoning the claim for divorce, but continuing to pursue his claims for custody and child support. The parties continued to litigate their divorce, property, and alimony claims in Utah, where the court set Father's pendente lite alimony obligation at $1,383 per month.

The parties reached a pendente lite agreement regarding visitation and child support. Under their agreement, the children would visit Father at his parents' home in Idaho for four days over the Thanksgiving holiday and for six days after Christmas. In addition, Father would have access through telephone or a video-chat service while thechildren were living with Mother in Utah. Finally, Father would pay pendente lite child support of $1,877 per month, without prejudice to either party's claims at trial regarding the proper amount of child support.

The circuit court entered a consent order that embodied the terms of the parties' agreement.

C. Trial on Custody, Visitation, and Child Support

In January 2019, the circuit court held a two-day trial on the claims for custody, visitation, and child support. Father desired for the children to reside primarily with him at the former family home in Prince George's County. Mother desired for the children to reside primarily with her at the house that she was renting from her sister in Farmington, Utah.

At the time of trial, the oldest child was nearly nine years old, the middle child was seven years old, and the youngest child was two-and-a-half years old. The two older children were attending a public elementary school in Utah and taking karate lessons and music lessons. The children attended weekly church services. Much of the parents' testimony concerned the medical and educational needs of the three children.

Mother testified that the older daughter has been diagnosed with autism spectrum disorder; anxiety disorder, unspecified; ADHD, combined type; mood disorder, unspecified; and a feeding disorder. Mother said that the older daughter met with a psychiatrist every month and a pediatrician every two months, to monitor her medication usage. Both parents mentioned that the older daughter was significantly underweight. Mother stated that the older daughter was undergoing an eight-week feeding therapyprogram in Utah. Father stated that she was consuming nutritional drinks daily, at the recommendation of her pediatrician.

Mother testified that the older daughter periodically experienced severe tantrums in which she would scream uncontrollably. Mother had completed training in "parent-child interaction therapy," in which Mother learned techniques to use at home for managing some behaviors associated with autism.³ In his testimony, Father characterized the older daughter as "very, very mild on the autism spectrum." Father stated that, in his experience, it was "usually not very difficult" to manage her behaviors "by just maintaining a calm, orderly, tranquil, organized kind of environment." Father said that he does not "observe outbursts or fits or anything from her."

Mother testified that the younger daughter suffers from migraines and stomach aches and has been diagnosed with generalized anxiety disorder and ADHD, combined type. Mother said that the younger daughter was taking three types of medication. Father had recently learned of the ADHD diagnosis through reports from Mother. In his testimony, Father opined that some symptoms that Mother described to him "seem[ed] to be more severe or more pronounced than what [he] observe[d] firsthand." Father observed that, when the younger daughter was in his care, she had "no problem doing things such as sitting through church services which are . . . approximately an hour long[.]"

Mother stated that the older daughter had had an individualized education planwhile she was in school in Maryland and that both daughters had been "flagged for services" at their new school in Utah. The two parents were participating in the process of setting up accommodation plans for both daughters, to address concerns with ADHD. In addition, each daughter was participating in a "social skills group" at school.

Mother testified that she was caring for the youngest child, a two-and-a-half-year-old son, in the home, except for five hours per week when he was with a child-care provider and four hours per week when he was in preschool. According to Mother, the youngest child had recently started to exhibit some behaviors similar to those exhibited by the oldest child. Mother had arranged for him to receive early intervention services, through monthly home visits from a therapist, after a screening indicated that he had a "severe deficit" in "adaptive behaviors." Through Mother's reports, Father had learned that "there was a probability that [the youngest child] might have ADHD."

In her testimony, Mother expressed concern that the children had never been in Father's exclusive care for a significant length of time. Mother stated that, when the family lived in Maryland, she had performed the majority of child care for all three children, including the management of their medical appointments. According to Mother, Father's daily interactions with the children were usually limited to reading them bedtime stories.

Mother called her brother and her cousin to testify about their observations of the parents when the family had lived in Maryland. Mother's brother stated that Father interacted with the children minimally whenever he was at home. Similarly, Mother's cousin stated that Father "never really . . . voluntarily engaged with the children."

Father testified that, during the 18 months since Mother had moved to Utah, he had travelled to visit the children...