Wildstein v. Davis

MICHELLE R. WILDSTEIN v. ALAN DAVIS

No. 2422

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

November 4, 2016

UNREPORTED

Arthur, Beachley, Kenney, James A., III (Senior Judge, Specially Assigned), JJ.

Opinion by Kenney, 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.

Appellant, Michelle R. Wildstein ("Mother"), appeals the Circuit Court for Montgomery County's grant of appellee Alan Davis's ("Father's") motion in limine to exclude certain evidence and strike the testimony of the court-appointed custody evaluator Jeanine Bensadon. Three questions are raised on appeal, as ordered for our review; the first is presented by Father in his responsive brief and the second and third by Mother:

[Did Mother present an] Interlocutory Appeal [that] is Permissible Pursuant to § 12-303 of the Annotated Code of Maryland's Court & Judicial Proceedings Article . . . ?

Did [Mother] violate Section 7-302 of the Criminal Law Article by copying a family computer (a) to which she had unlimited access during the marriage, (b) on which she had her own administrator profile and (c) in the absence of any notice that her authority had been restricted?

Did the trial court abuse its discretion by granting, without any factual record, the appellee's motion in limine and striking the testimony of the court-appointed custody evaluator?

For the reasons that follow, we answer the first question in the affirmative and the second and third in the negative.

Factual and Procedural Background

Sometime in the summer of 2006, Father and Mother began a romantic relationship. At that time, Father was separated from his second wife and going through a divorce. In the beginning of 2007, they moved in together and were married on April 18, 2009. Their first child, J.D., was born shortly after in September 2010. Following J.D.'s birth, Father and Mother hired a full-time nanny. Mother was unhappy with the way that Father acted towards the new family and felt like Father "withdrew" and "the more [she]asked him to do and be there for [her], the less he did." His long work hours appear to have exacerbated these issues.¹

According to Mother, the marriage began to fail in May 2012 following an incident in which Father allegedly "tried to choke [her] while she was holding [J.D.] in [her] arms." Their second child, L.D., was born in July 2012. Following L.D.'s birth, the housekeeper took on some childcare responsibilities to help ease Mother's burden.

The marriage continued to deteriorate, and on December 13, 2013, reached a breaking point following an incident in which Mother and her father alleged that Father violated Maryland Code (1984, 2012 Repl. Vol.), § 4-501 of the Family Law Article ("FL § 4-501")² and Maryland Code (2002, 2012 Repl. Vol.), §3-201 of the Criminal Law Article ("CL § 3-201").³ On that date, Mother filed for an interim protective order against Father and her father filed for an interim peace order. The charges resulted in Father being removed from the marital home.

A hearing on Mother's protective order was held in Montgomery County District Court on December 17. The court ruled that there was not "sufficient evidence of prohibitive conduct towards [Mother] that warrants the entry of an order." A hearing on Mother's father's peace order was held in District Court on December 27, 2013, and again, the court ruled in favor of Father, finding that the alleged incident was "to some extent . . . a common[af]fray" and concluding that an order was not "necessary to curb future conduct."

Following the December 13, 2013 incident, Mother hired a bodyguard/private investigator named Devin Tullis⁴ who "followed" Father and "tracked" his oldest daughter by placing a GPS tracking device on her car.⁵ Mr. Tullis also referred Mother to "a computer technician" so that she could copy Father's MacBook Pro computer, which he had purchased before their marriage, but was kept in the home, and to which Mother had some access. Mother provided the technician with the computer in January of 2014, prior to when Father was permitted to return to the marital home, and she later "picked up the family computer and the drive that he created from [his] office in Sterling, Virginia." A January 15, 2014, message on the hard drive, which was deleted but later recovered by Father's computer expert, stated:

Both user folders completly ripped from OSX Operating Drive

This External HDD is formatted FAT. RjWmay be slow!

For Web History, you need to search the Cookie PLIST file located:

\ alan davis \ Library \ Cookies

Other Folders are self explainitory

Temp account "tadmin" was created to gain administrator rights and copy the files.

Account has been deleted. Main account password was not touched.

Michelle Account was not used and password changed to "password90" in case access

is needed to laptop at later time without using singleuser mode. Both accounts on the

MAC are administrator accounts.

Thanks

Between January 25 and January 27 of 2014, Mother moved out of the marital residence; Father returned on January 28, 2014. On January 27, 2014, Mother filed a Complaint for Absolute Divorce, or in the Alternative Limited Divorce, Custody, and Other Appropriate Relief requesting sole legal custody and sole physical custody "pendent lite and permanently, with reasonable access to [Father]." Father responded on February 27, 2014, and filed a Counterclaim for Absolute Divorce, or in the Alternative Limited Divorce, and Other Relief. Mother responded on April 11, 2014, requesting that the counter-claim be dismissed.

On March 20, 2014, as part of the proceedings, the circuit court issued an Order for Custody/Visitation Evaluation, which provides in relevant part:

ORDERED, that all parties involved in this case, participate in an investigative and evaluative process to assist the Court in resolving issues of custody and visitation; and it is further, . . .

ORDERED, that the Evaluator shall have a right to terminate this referral if the Evaluator deems the referral inappropriate or if the parties fail to cooperate; termination shall be made by written notice of circumstances to the court and to the parties; and it is further,

ORDERED, that the case is referred to the Family Division Evaluators to conduct an investigation of the parties, their child(ren), theirhistories and their living situations, in accordance with established guidelines, and to prepare a written report with evaluation and recommendations by the date scheduled for hearing on the merits of the case;

In addition, on May 8, 2014, the parties signed an agreement to begin working with Marcy Chell, a clinical social worker with the Capital Region Children's Center.⁶ She first met with Father on April 12, 2014, and she spent about an hour and a half with Father, J.D., and L.D. on that date. On several subsequent visits she continued to observe "how he interacted with the children in the community." Ms. Chell first met with Mother on May 15, 2014, and they discussed the children's schedules. Ms. Chell observed Mother pick up the children from Father's home. During the transition, L.D., who was not wearing a diaper, wet herself and, according to Ms. Chell, Mother became "very angry, almost irate" and demanded to know why Father did not put a diaper on her. Ms. Chell attempted to "deescalate" the situation, and Mother eventually changed L.D. in the car and left with the children. After that incident, Ms. Chell suggested that "there should be somebody else doing the drop off and pick up," and from that point forward the nanny Lagaya Cuba handled the transitions.

Ms. Chell spoke with Mother on several other occasions,⁷ and met with her counsel on June 5, 2014 about obtaining medical records of Father's adult daughter. Thecontact between Ms. Chell and Mother ended shortly thereafter because, in Mother's view, she failed to meet her obligation to obtain the requested medical records.

On June 18, 2014, a Consent Pendente Lite Custody order, signed by the court on June 11, was entered. The order temporarily resolved access issues and stated:

CONSENT PENDENTE LITE CUSTODY ORDER

Upon the Consent of the parties, as evidenced by their signatures below, it is hereby ORDERED:

1. The minor children of the parties, [J.D. and L.D.], will reside primarily with Plaintiff, [Mother], pendente lite and spend time with Defendant, [Father], as follows:

• Every Thursday from 5-7:30 p.m.

• Saturday, May 10, 2014, from 9 a.m. to 2 p.m.

• Saturday, May 17, from 9 a.m. to 4 p.m.

• Sunday, May 25, and alternating Sundays thereafter (i.e. June 8, June 22, July 6, and so on) from 9 a.m. to 6 p.m.

• Saturday, June 1, and alternating Saturdays thereafter (i.e. June 14, June 28, July 12, and so on) from 9 a.m. to 6 p.m.

2. The parties shall immediately begin working with Marcy Chell, LCSW to do the following: establish consistency across households regarding discipline, meals, night time routines, handling behavior issues, night time waking, etc.; establish ground rules for the pendente lite access schedule; monitoring the children's adjustment to the pendente lite schedule; and to assist the parties in resolving any other child-related issues that arise during the course of the pendente lite period.

3. The fact that the above schedule does not provide for [Father] to have overnight visits with the children is not due to his ability or fitness to have such visits but is due to other factors. If those factors disappear or are addressed to the parties' satisfaction, overnights visits may commence subject only to Marcy Chell's recommendation as to the actual schedule.

4. The parties will reconvene with Marcy Chell and Ann N. Sundt on June 23, 2014 for the purpose of receiving a neutral evaluation which shall include a recommendation as to a custody/access schedule, which recommendation

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