Velasquez v. Fuentes

318 A.3d 18

262 Md.App. 215

Esau Antonio Orellana VELASQUEZ

v.Cecilia Del Carmen Carranza FUENTES

No. 1547, Sept. Term, 2023

Appellate Court of Maryland.

June 26, 2024

Circuit Court for Prince George’s County, Case No. CAD21-10484, Peter K. Killough J, Judge

Argued by Diana C. Valle, The Valle Law Firm, LLC of Bethesda, MD, on brief, for Appellant.

Argued by Matthew B. Hand, Salvado, Salvado & Salvado, PC of Rockville, MD (Carlos J.R. Salvado, Salvado, Salvado & Salvado, PC of Rockville, MD, on brief), for Appellee.

Wells, C.J., Beachley, Alexander Wright, Jr., (Senior Judge, Specially Assigned), JJ.

Wells, C.J.

This appeal arises from a custody dispute between appellant, Esau Antonio Orellana Velasquez ("Father"), and appellee, Cecilia Del Carmen Carranza Fuentes ("Mother"), regarding their minor child, G.C. Father filed a complaint for custody in the Circuit Court for Prince George’s County, but Mother did not file an answer. At the father’s request, the court entered an order of default. Later, after a hearing, the court enrolled a custody order.

Mother did not appeal that judgment, but instead moved to modify custody. A magistrate denied Mother’s motion, finding she had not proven a threshold material change in circumstances. Mother filed exceptions. After a hearing, the circuit court sustained Mother’s exceptions and, without notice to either party, the court sua sponte vacated the custody order. Weeks later, Mother moved to set aside the order of default, which the circuit court granted.

Father timely appealed and presents two questions for review, which we have reordered and slightly rephrased:¹

1. Did the circuit court err when it vacated the default judgment and the custody order?

2. Did the circuit court err when it granted Mother’s exceptions to the magistrate’s recommendations?

For the reasons that we discuss, we conclude the circuit court erred as to both issues and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Mother and Father are the biological parents of G.C., born on November 8, 2018. Mother and Father were never married. Before these proceedings, the parties did not have a custody order from any court. Mother lived in Texas with G.C. and Father lived in Maryland.

At some point, G.C. came to live with Father, and Father filed a complaint for custody in the Circuit Court for Prince George’s County on September 21, 2021. Mother was properly served but did not answer. As a result, Father requested an order of default. Subsequently, the court entered a default against Mother on February 15, 2022.

Thereafter, on March 21, 2022, the court held a hearing before a magistrate on Father’s complaint for custody. Mother did not appear at the hearing, even though she received notice and later admitted that she knew that the hearing was taking place. After the hearing, the magistrate recommended Father be awarded joint legal custody and primary physical custody of G.C. Mother was to be granted access with G.C. under a schedule outlined in a proposed order. The court ratified the magistrate's recommendations and issued an order dated April 7, 2022. Mother never appealed the entry of the custody order.

More than ninety days later, on July 18, 2022, Mother moved to modify custody, alleging, as a material change, that Mother was moving her primary residence from Texas to Maryland. A magistrate conducted a hearing on the motion on November 1, 2022, with both parties present with counsel. Mother and Father testified.

At the start of the hearing, the magistrate told the parties that Mother was required to show a material change in circumstances had occurred, since the custody order was entered before the magistrate could determine what custody arrangement was in G.C.’s best interests. Because the magistrate was concerned with what changes had occurred since the custody order was established, the magistrate prohibited Mother from presenting evidence regarding the circumstances surrounding the default judgment and events that occurred before the custody order was enrolled.

Mother testified that she lived in Maryland with her parents, brother, two aunts, and her six-month old baby, .G.C.’s younger brother. She testified that she and G.C. were always together and very happy until Father had "taken" G.C. away from her. However, Mother testified that Father had done well taking care of G.C. Mother said she had "the intention" to stay in Maryland but said she frequently returned to Texas to take her infant son to the pediatrician. She also mentioned having "second thoughts" about remaining in Maryland because she had "a stable home to go back to in Texas, where [she] can raise [her] children." Mother confirmed that she resided in Texas "on and off" for two years. On one occasion, Mother canceled visitation with G.C. to return to Texas to take her son to his doctor. Mother testified that Father told her his wife takes care of G.C. while Father works, and that sometimes Father’s sister in-law provided care because Father’s wife began working again. Mother testified that she planned to watch G.C. until G.C. started school.

Father testified he lived with his wife, mother-in-law, brother-in-law, sister-in-law, and aunt. He works for an electrical company, and sometimes returned home by 6:00 p.m., which is why his wife and his sister-in-law looked after G.C. However, his normal hours were 7:00 a.m. to 3:00 p.m. After he testified, Father moved to dismiss because Mother had failed to establish a material change in circumstances. Mother opposed, arguing G.C. and Mother’s infant child had developed a close relationship.

The magistrate noted that Mother failed to appeal the custody order but instead filed the motion to modify ninety days later. The magistrate concluded that the motion to modify was "basically just reiterat[ing] the language from the prior order." The magistrate explained that the fact that G.C. was living in Maryland was not a material change in circumstances. Further, the magistrate concluded that Mother’s claim about moving to Maryland was dubious because Mother admitted to having strong ties to Texas and concluded that it was unlikely, given those ties, that Mother would relocate to Maryland. Having found that nothing had changed since the custody order was established, the magistrate granted Father’s motion to dismiss.

Mother timely filed exceptions to the recommendations on November 11, 2022, arguing in her papers that (1) the magistrate declined to hear evidence regarding G.C.’s life before the custody order, and (2) that under Rule 2-208(i)(1) testimony was required for a best interest of the child analysis. In his pleadings, Father argued that Mother had no meritorious argument, as she did not describe what evidence she wished the court to consider. Further, he argued Mother never asked the court to set aside the custody order by moving for a new trial or for the court to alter or amend the judgment. Father argued the principles of res judicata should prevail and that it was proper for the magistrate to refuse evidence regarding circumstances from before the custody order.

The court held a hearing on Mother’s exceptions almost one year later, October 6, 2023. Both parties argued what was set forth in their written pleadings. At the hearing, the court asked Mother’s counsel if the magistrate did a best interests analysis using the so-called Taylor factors.² Counsel answered in the negative. The circuit court asked counsel what findings were made at the custody hearing and noted that the custody order used "boiler- plate language." The court continued, explaining that, because the custody order was entered by way of a default, there was "no baseline" against which to measure a material change in circumstances. The court also considered whether the default judgment was irrelevant. The circuit court ultimately determined the magistrate should have considered what was in G.C.’s best interest and performed a Taylor factor analysis. The court concluded that because the magistrate "didn’t make a determination as to what’s in the best interest of the child, then I’m going to send it back so the magistrate can do that." The circuit court further expounded on its rationale, emphasizing the importance of the magistrate doing the Taylor factor analysis because determining what was in G.C.’s best interest was critical in considering a material change in circumstances.

In a written order dated October 13, 2023 the circuit court sustained Mother’s exceptions. Even though Mother had not requested it, and without notice to either Mother or Father, the court vacated the custody order and set a hearing before a magistrate to redetermine custody. Five days later Father appealed.

On January 12, 2024, Mother moved to vacate the February 15, 2022 order of default. Before Father could respond, six days later, on January 18, 2024, the circuit court granted Mother’s motion and set aside the default judgment. We will supply additional facts in our analysis when necessary.

DISCUSSION

I. Standard of Review

[1] In evaluating custody determinations, this Court "utilize[es] three interrelated standards of review." Gillespie v. Gillespie, 206 Md. App. 146, 170, 47 A.3d 1018 (2012). First, "[w]hen reviewing a [magistrate’s] report, both a trial court and an appellate court defer to the [magistrate’s] first-level findings (regarding credibility and the like) unless they are clearly erroneous." McAllister v. McAllister, 218 Md. App. 386, 407, 97 A.3d 227 (2014); see also Montgomery Cnty. Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406, 419, 381 A.2d 1154 (1977). Second, "[i]f it appears that the [circuit court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless." In re Yve S., 373 Md. 551, 586, 819 A.2d 1030 (2003) (internal citations omitted).

[2] Finally, "when the appellate court views the ultimate conclusion of the [court] founded upon sound legal...