Placella v. Placella

MATTHEW PHILLIP PLACELLA v. REBECCA MARTIN PLACELLA

No. 2055

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

April 18, 2019

Circuit Court for Anne Arundel County

Case No. 02-C-14-190469

UNREPORTED

Wright, Graeff, Nazarian, JJ.

Opinion by Graeff, 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 the Judgment of Absolute Divorce issued by the Circuit Court for Anne Arundel County, and the decisions regarding custody of the parties' child, J., and child support.¹ With respect to custody, the court awarded Rebecca Placella, appellee, sole legal custody and primary physical custody of J. and awarded supervised visitation to Matthew Placella, appellant. Supervised visitation, with conditions, would be in place until March 1, 2019, and after that, visitation would be unsupervised.²

On appeal, Mr. Placella presents the following questions for this Court's review, which we have rephrased slightly, as follows:

1. Did the circuit court err by not permitting the parties to conduct discovery after this case was remanded from this Court?

2. Did the circuit court err by not permitting Mr. Placella to amend his complaint?

3. Did the circuit court err by not appointing a best interest attorney for J.?

4. Did the circuit court err by ordering that Mr. Placella have supervised visitation with J.?

5. Did the circuit court err by incorporating a pendente lite order that pre-dated the original Judgment of Absolute Divorce?

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

FACTUAL AND PROCEDURAL BACKGROUND

This is Mr. Placella's second appeal to this Court. For necessary background, we will briefly summarize the events leading up to the previous appeal, what happened on appeal, and the events that led to this current appeal.

I.The History between the Parties³

On April 17, 2004, the Placellas were married. In June 2012, the parties' son was born.

On August 31, 2014, the Placellas separated. On September 8, 2014, Mr. Placella filed a Complaint for Limited Divorce in the Circuit Court for Anne Arundel County.

On December 11, 2014, Ms. Placella filed a counter complaint for an annulment, sole custody of their child, and child support, which she subsequently amended on April 22, 2015, to add an alternative claim for limited divorce. Ms. Placella also requested that the circuit court "[e]stablish a supervised visitation schedule for [Mr. Placella]," and order him "to engage in supervised drug testing."

At a scheduling conference on March 4, 2015, the parties agreed that Mr. Placella would have visitation with J. on Sunday. On May 4, a pendente lite hearing with a magistrate occurred, and the magistrate recommended Sunday visitation. That same day, the magistrate issued a Report, Recommendations and Findings of Fact.

On July 6, 2015, the parties appeared before the circuit court for a hearing on Ms. Placella's exceptions to the magistrate's report. The court ultimately agreed with the magistrate's recommendation regarding visitation, but it found that the magistrate's decision regarding child support was clearly erroneous, and it ordered that Mr. Placella pay child support in the amount of $1,617.00 per month to Ms. Placella "on a pendente lite basis." It ordered "that the child support award of $1,617.00 is retroactive to December 11, 2014," and it found that Mr. Placella owed "child support arrearages in the amount of $6,735.00 from the period from December 11, 2014[,] through May 4, 2015."

II.The First Trial

On March 2, 2016, the morning of the first scheduled day of trial, Ms. Placella and her attorney were present, but Mr. Placella and his counsel were not. The court advised Ms. Placella that it had received emails from Mr. Placella and his attorney that morning. Mr. Placella emailed the court directly, stating that he was self-represented but "unable to attend" the first day of the trial "due to illness." He stated that "this is scheduled as a three-day hearing," and he could be present the next day, March 3, 2016.⁴ Mr. Placella's attorney also sent an email, dated March 1, 2016, stating that Mr. Placella had fired him that day and told him not to attend the trial beginning on March 2.

The court noted that "all matters must be filed properly and the Court cannot consider ex parte communication." When it was determined that no witnesses for Mr. Placella were present, the court stated that no postponement had been granted, and it would proceed on Ms. Placella's amended complaint for absolute divorce.⁵

At the close of Ms. Placella's case, which concluded on March 2, 2016, the same day that the trial began, counsel for Ms. Placella made an oral motion to dismiss Mr. Placella's complaint, which included a request for alimony. The court granted the motion because "the plaintiff has failed to appear and . . . present any testimony."

The court then ruled from the bench. The court granted Ms. Placella an absolute divorce, noting that the parties had been separated since August 31, 2014, which entitled Ms. Placella to a divorce based upon one year of separation. After a lengthy discussion of the factors relevant to custody, the court found "that it is in the best interest of the minor child that the mother be awarded sole legal and sole physical custody of the minor child."It granted Mr. Placella supervised "visitation with the minor child from Sunday at 10:00 a.m. to 8:00 p.m.," stating that "the child may not leave the State of Maryland with the father," and the "visitation shall be suspended until the father has complied with any urine tests which have been ordered and will be ordered by the court. Or, it shall remain suspended unless the mother approves visitation." The court ordered Mr. Placella to pay child support in the amount of $1,957 per month. The court also awarded Ms. Placella $16,838.25 in counsel fees.

III.The First Appeal to this Court

Mr. Placella appealed, raising several issues. We agreed with Mr. Placella on the first issue, i.e., that the circuit court erred in conducting the trial in his absence and the absence of his attorney.

We explained that, the general rule is that the determination whether to grant a motion for a continuance generally is within the trial court's discretion. Touzeau v. Deffinbaugh, 394 Md. 654, 670 (2006). In "exceptional situations," however, it is an abuse of discretion to deny a request for a continuance. Id. at 671. Accord Neustadter v. Holy Cross Hosp. of Silver Spring, Inc., 418 Md. 231, 250 (2011).

We concluded in an unreported opinion issued on May 22, 2017, that this was a case where the refusal to grant a continuance constituted an abuse of discretion. Accordingly, we vacated the judgment of the circuit court and remanded the case for further proceedings. Placella, slip op. at 14.

IV.Motions on Remand

Mr. Placella filed several motions. As discussed, infra, he filed a Motion to Appoint a Best Interest Attorney, a Motion to Extend the Discovery Deadline, and a Motion for Leave to File Amended Complaint. The court denied these motions.

V.The Trial after Remand

A.Testimony

On December 5, 2017, the second trial began.⁶ Mr. Placella testified that he had been employed by Citibank North America, but he lost his job on March 15, 2016. Since that time, he had made "considerable efforts to try and to find employment," including applying to "over 30 banks," as well as jobs in other industries, including retail. According to his W-2s, he earned $73,000 in 2011, $74,000 in 2012, $79,000 in 2013, and $83,000 in 2014. In 2015, Mr. Placella earned in excess of $90,000, and although he was fired March 15, 2016, his earnings for 2016 totaled close to $42,000. Mr. Placella testified that he had not paid child support since he lost his job in March 2016.

Mr. Placella also testified regarding his mental health. From approximately October 2007 until "the turn of" 2016, he had received treatment for depression and bipolardisorder. Although medications prescribed for these conditions initially helped him, there came a time when he felt they no longer helped him. He stopped taking his medications in March 2016, and he testified that he felt "fine" and in "good mental health" as of the date of the trial. No doctor had told him that it was appropriate to stop taking his medication.

Mr. Placella stated that, as of the date of trial, he was not taking illegal substances, though he had smoked crack cocaine between December 2011 and July 2014. He had been taking regular drugs tests, but between June 2015 and May 2016 he did not take any tests because he could not afford them and there was not a facility where he could get the test done within the time allotted "for a lunch or a break during the business day." Mr. Placella stated that he had not used illegal drugs since July 3, 2014.

Mr. Placella's supervised visitation with J. occurred on Sundays from 10:00 a.m. to 8:00 p.m. When he spent time with J., they would do various activities, such as playing with Legos and fishing. He testified that he was unable to call his son, and had not spoken on the phone with J. since his fourth birthday. He stated that he would like to have visitation that allowed for overnight stays, vacation, certain holidays, the ability to take J. to museums in Washington, D.C., and the ability for him to take J. to see family in Florida. When asked what custody arrangement he felt would be in J.'s best interest, Mr. Placellastated that "some level of" joint legal and physical custody would be appropriate. He stated that he would be willing to cooperate with Ms. Placella to make decisions for J.⁷

Mr. Placella did not have "concerns about [Ms.] Placella as a parent per se," as she was "a very loving person" and "a good mother" to J. Prior to their separation, however, their "norm" was "daily...