Valko v. Tin

1

ANYSIA VALKO v. ERIC TIN

No. 1622-2022

Court of Special Appeals of Maryland

November 1, 2023

IN THE APPELLATE COURT OF MARYLAND ^[*]

Circuit Court for Montgomery County Case No. 142737FL

Leahy Friedman, Gill Bright, Robin D. (Circuit Judge, Specially Assigned), JJ.

OPINION

Leahy J.

This case returns to us on appeal from the entry of a custody and access order in the Circuit Court for Montgomery County, Maryland, on October 19, 2022, following a five-day custody modification trial. The order gives Eric Tin ("Father") primary physical custody of the parties' minor child, E. The order also delineates child's visitation with Anysia Valko ("Mother") at her home in North Carolina according to a detailed schedule set by the court.

According to the transcript of the proceedings, after concluding that Mother, a former teacher, was voluntarily impoverished, the court imputed income to her based in large part on monthly expenses subsidized by her new spouse. The court further ordered that Mother split evenly with Father all of the child's uninsured medical expenses and pay the entire cost of E.'s extracurricular activities and all expenses related to E.'s travel to and from North Carolina for visitation. The circuit court also ordered Mother to pay $27,050.30 in attorneys' fees to Father.

Mother noted a timely appeal and presents three questions, challenging only the monetary components of the circuit court's order, for our review:

I. "Did the trial court err in its calculation of Mother's income when determining child support?"

II. "Did the trial court abuse its discretion and violate the plain language of the child support statute in its order regarding child-related expenses?"

III. "Did the trial court abuse its discretion in ordering Mother to pay a substantial portion of Father's attorney's fees?"

For the reasons that follow, we shall vacate, in part, the circuit court's order of additional expenses associated with the child's care and the court's award of attorneys' fees. We remand for the circuit court to reconsider these issues in light of the guideposts set forth herein.

BACKGROUND

Divorce Proceedings and First Appeal

Father and Mother are the parents of E., a minor child born during their marriage in 2013. The parties resided in Montgomery County and were divorced in 2017. By consent order incorporated into the final judgment of divorce, they agreed "that the parties shall have joint legal custody of [E.] and that [Mother] shall have primary physical custody with reasonable rights of visitation reserved to [Father]." E.T. v. A.T., No. 2498, Sept. Term 2018, slip op. at 1 (filed Apr. 10, 2019) ("Tin I"). This arrangement, however, "did not provide a structured visitation schedule, thus leaving it to the parties to decide on a visitation schedule themselves." Id. Soon thereafter, the parties were unable to agree on a set schedule regarding overnight visitation during the school week and returned to court to work out a more definite arrangement. Id. In January 2018, Mother filed a motion to enforce the consent order, requesting that the circuit court "mandate a visitation schedule for Father and E., taking into consideration that Mother has primary physical custody and that E. would be entering elementary school in the coming months." Id. Father, in turn, filed "a motion to modify" and requested that the court order joint physical custody "because of a 'material change in circumstances,' citing his move into a three-bedroom home which provides E. with her own bedroom, a separate playroom, and a backyard." Id. at 2.

At the modification hearing, the court "did not find a material change in circumstances sufficient to warrant a modification of the existing custody arrangements" but proceeded to "set out a specific visitation schedule for E. to replace the existing, and disputed, arrangement between the parties." Id. at 2. Specifically, the court found "that neither Father's move to a single-family home nor Mother's living arrangement necessitated custody modification because neither constituted a material change in circumstances affecting E.'s welfare."^[1] Id. at 3. Additionally, the court, in enforcing the prior consent order, clarified "what was 'reasonable' visitation" and ordered that "[d]uring the school year, Father would have visitation with E. Tuesdays and Thursdays until 7:00 p.m., as well as on alternative weekends from Friday after school until E. returned to school on Monday" while the parties would alternate having E. on a weekly basis during the summer. Id. at 5. Father noted a timely appeal and we affirmed the circuit court's decision in an unreported opinion, reasoning that the court did not err or abuse its discretion in resolving the parties' custody and visitation disputes. Id. at 6.

Mother's Move to Washington and Corresponding Motions

While the parties' first appeal was pending, Mother filed a motion styled as "Motion to Modify Access[.]" In the motion, Mother asserted that "[m]aterial circumstances have occurred since entry of the 2018 Custody Order, which impact the best interest of the child and warrant a change to [Father's] access schedule." Specially, Mother explained that her new spouse was set to take a new position in Seattle Washington, and that Mother would be moving with him. Mother requested that "the parties' Consent Order be modified to allow [E.] to move with [Mother] to Washington State and to allow [Father] liberal and significant visitation during summer, holidays, and school breaks." Father filed an "Answer" to Mother's Motion, in which he urged the court that E. "should remain in Montgomery County, Maryland, the only place where she has ever lived, and where she has strong connections with her school, friends, family, community, and most importantly, her father."

Following a brief scheduling hearing, the circuit court set a hearing on Mother's motion to commence on February 2, 2020, and ordered the parties to participate in a visitation evaluation. Shortly thereafter, Father counter-moved for a modification of custody, arguing that Mother's proposed move to Seattle constituted a material change in circumstances that justified awarding him primary physical custody of E. In his motion, Father again emphasized the fact that E. had only ever lived in Montgomery County and that her friends, school, and extended family were all located in the area, and, therefore, it was in E's best interests to remain with Father. Although a hearing on the matter was set for February 2, 2020, Mother then moved for an interim order permitting her to take E. to Washington with her for the start of the upcoming school year pending further order of the court. That motion was denied by written order entered on August 30, 2019.

Unfortunately, in 2020, a confluence of events prevented the parties' scheduled modification hearing from going forward as planned. First, on January 29, 2020, the parties filed a joint motion to postpone the hearing until March 2, 2020, to build in time for a possible third day of testimony and because Father's counsel was experiencing a family emergency. That motion was granted by written order entered on the docket on February 11, 2020. The hearing was pushed once again to commence March 23, 2020. Then, of course, in mid-March 2020, access to the courts became extremely limited with the onset of the COVID-19 pandemic, thereby pushing the hearing yet again to commence on May 18, 2020. Finally, the May 18 hearing date was postponed to March 1, 2021, due to the backlog created during the peak of the pandemic.

In the meantime, as her move to Washington was approaching, Mother sought temporary resolution of E.'s status. On June 30, 2020, she filed an "Emergency Motion For an Interim Order Modifying [Father's] Access Due to Relocation" notifying the court that she was relocating to Seattle, Washington, "on or before July 24, 2020." Before the court ruled on Mother's motion, however, Mother unilaterally completed her move to Seattle on July 24, 2020, taking E. with her and enrolling her in school there.

Father filed an Emergency Motion on July 27, 2020, asserting that Mother had "willfully absconded out-of-state with [E.]" and was in violation of the parties' then-operative custody order, which provided for a rotating two-week schedule between the parties in the summers. Father requested that he be given temporary physical and legal custody of E. and that Mother be ordered to return E. to Montgomery County. On August 11, 2020, the circuit court ordered, inter alia, that "the parties shall have alternating two-week period of access" with E. to take place "in the Washington, D.C. metropolitan area" except that "as long as the child's schooling is to be conducted virtually, [Mother's] access with the minor child may occur in Seattle, Washington for every third two-week visitation period she has[.]" Then on September 9, 2020, the court ordered that Father have the final authority to decide where E. would be enrolled in school for the 2020-21 academic year. All other matters relating to the parties' requests for modification were deferred until the merits hearing scheduled for March 1, 2021.

2021 Consent Order and Mother's Withholding of Access to E.

Prior to the merits hearing scheduled for March 2021, the parties reached an agreement and entered in to a "Custody Consent Order" on February 11, 2021. Pursuant to the order, the parties agreed that Father "shall have primary residential custody of [E.]" and that Mother will enjoy liberal visitation during school breaks and holidays as set forth in detail in the order. The parties further agreed to split, with Father paying 75% and Mother paying 25%, the costs of therapy for E. as well as any medical...