UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND. No September Term, 2010 MICHELLE PINDELL SHAWN PINDELL

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1 UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 699 September Term, 2010 MICHELLE PINDELL v. SHAWN PINDELL Watts, Berger, Alpert, Paul E., (Retired, Specially Assigned), JJ. Opinion by Berger, J. Filed: January 3, 2013

2 This appeal arises from an order to enforce a settlement agreement placed on the record in the Circuit Court for Howard County. On May 18, 2010, the circuit court ordered appellant Michelle Pindell ( appellant ) to pay appellee Shawn Pindell ( appellee ) the sum of $70, less $10, in child support arrears and $3, for appellee s one-half share of medical and dental expenses. In total, the court ordered appellant to pay appellee $56, This timely appeal followed. Appellant presents nine issues for our review, which we repeat verbatim: 1. Was the order placed on the record by Honorable Judge Lenore Gelfman reflective of the entire terms and understanding of both parties with Honorable Judge Alfred Brennan? 2. Should Mr. Pindell, Appellee, continue to pay the health and dental expenses based on the August 16, 2007 Order and his deceit of the Circuit Court for Howard County? 3. Did the Consent Dec Order allow for the modification and enforcement of the financial terms due to the longstanding efforts to finalize the Consent order and the appeal process? 4. Were the dates considered in the Confessed Judgment Note fair and reasonable? 5. Did the Confessed Judgment Note include the changes to the reimbursement order placed on the record based on the longstanding effort to come to a mutual agreement to the Consent Decree Order? 6. If modified, should the Confessed Judgment Notes include a new commencement date that coincides with the agreed upon Consent Decree Order on record and allow the Appellant thirty (30) days to arrange compliance?

3 7. Were the childcare guidelines administered to change the existing child care order dated August 16, 2007? 8. Based on the inconsistencies, omissions, and conflicting testimonies, should this case be scheduled for a trial hearing with the Circuit Court for Howard County so a new Consent Decree Order can be placed on the record? 9. Should Appellee, Shawn Pindell, be responsible for all court fees, including any and all fees associated with the Circuit Court for Howard County? We conclude that only the first issue was preserved for appellate review. For the reasons set forth below, we affirm the judgment of the Circuit Court for Howard County. FACTS AND PROCEEDINGS On August 20, 2007, the Circuit Court for Howard County awarded appellant sole physical custody, joint legal custody, and unsupervised visitation of the minor children. The court further ordered appellee to pay child support and expenses related to the children s medical and dental care. On February 4, 2008, the court granted the parties an uncontested absolute divorce. At the uncontested divorce hearing, the parties agreed to divide the proceeds that arose from the sale of the marital home equally. In April 2009, the marital property was sold and the proceeds were placed in an account accessible to both parties. Thereafter, appellee filed a petition for contempt alleging that appellant transferred $70, from appellee s personal account without his knowledge or permission. Appellant filed a cross-petition for contempt contending that appellee was not paying child support, was in arrears for several months, and requested a modification of support. On 2

4 October 9, 2009, both parties appeared before the Circuit Court for Howard County for a contempt hearing. At the contempt hearing, both parties, through the assistance of counsel, reached an agreement on the cross-petitions for contempt. All parties, including counsel, contributed to arriving at the agreement and placed the agreement between the parties on the record. As part of the agreement, both parties agreed to withdraw their cross-petitions for contempt. The parties further agreed that appellant would pay appellee $70, minus the amount owed to the appellant for child support arrears and the costs appellant incurred for medical and dental expenses on behalf of the children. Appellant agreed that she would sign a confessed judgment note if she did not qualify for a loan to repay appellee within 30 days. Additionally, the parties agreed to family counseling, and that appellee would have access to the school and medical records of the children. The parties further agreed that appellant would provide appellee with 90 days notice before relocating the children s residence. Before the parties were excused, the court questioned each party as to their understanding of the agreement. Critically, each party stated before the court that they understood the agreement and that they entered the agreement freely and voluntarily. Although the parties exchanged financial information after the hearing, they did not submit a consent order to the court for its approval, as instructed by the court. On November 18, 2009, appellant s counsel forwarded a letter to appellee s counsel including a calculation owed to the appellee of $56,470.18, after offsetting the monies owed for child 3

5 support arrears and health insurance. Appellant s counsel also proposed that the monies owed to appellee be deducted from future child support payments over the next seven years. Appellee contested this proposal because it was never agreed to at the time of the hearing and was not of record. On December 4, 2009, appellee s counsel sent a letter and a confessed judgment note to appellant, stating that appellant had agreed to execute a confessed judgment note if she were unable to obtain a loan within 30 days from the hearing date. On December 16, 2009, appellee filed a petition for contempt for appellant s failure to obtain a loan, her failure to sign a Confessed Judgment Note, her failure to abide by the Order of [the judge], and her attorney s failure to prepare a proper Consent Decree. In opposing the petition for contempt, appellant argued that the matter should be scheduled for trial as there was not a meeting of the minds when the Agreement was reached. After considering appellee s petition for contempt by a Master, the court denied appellee s petition on March 19, On March 24, 2010, appellee filed a motion to enforce settlement on the record. On May 18, 2010, the circuit court granted appellee s motion. This timely appeal followed. 4

6 DISCUSSION I. Appellant s first contention is that the circuit court erred in granting appellee s motion to enforce the settlement agreement because it did not include all of the findings and recommendations from the hearing held on October 9, We disagree. We review a trial court s decision to grant a motion to enforce settlement on the record under an abuse of discretion standard. Pearlstein v. Maryland Deposit Ins. Fund, 78 Md. App. 8, 15 (1989) ( It is now well established that the trial court has power to summarily enforce on motion a settlement agreement entered into by the litigants. ). The ultimate decision, assuming the application of correct principles of law in the balancing process, is a discretionary one with the trial court..., we look to see whether the court applied correct legal principles and, if so, whether its ruling constituted a fair exercise of its discretion. Neustadter v. Holy Cross Hospital, 418 Md. 231 (2011) (internal citations omitted) (quoting Edwards v. State, 350 Md. 433, (1998)). It is well settled that [a]n abuse of discretion occurs where no reasonable person would take the view adopted by the court or if the court acts without reference to any guiding rules or principles. Serio v. Baystate Props., LLC, 203 Md. App. 581, 590 (2012) (internal quotations omitted) (quoting North v. North, 102 Md. App. 1, 13 (1994) (in banc)). Appellate courts do not defer to discretionary rulings of the trial judge, however, when the 5

7 judge has resolved the issue on unreasonable or untenable grounds. The Court of Appeals has stated, however, that: We have defined abuse of discretion as discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. Jenkins v. City of College Park, 379 Md. 142, 165 (2003) (emphasis not included); see also Garg v. Garg, 393 Md. 225, 238 (2006) ( The abuse of discretion standard requires a trial judge to use his or her discretion soundly and the record must reflect the exercise of that discretion. Abuse occurs when a trial judge exercises discretion in an arbitrary or capricious manner or when he or she acts beyond the letter or reason of the law. ) (quoting Jenkins v. State, 375 Md. 284, (2003)). Neustadter, supra, 418 Md. at 242 (quoting Touzeau v. Deffinbaugh, 394 Md. 654, 669 (2006)). In exercising discretion, the trial court must apply the correct legal standard in rendering its decision: [W]here the record so reveals, a failure to consider the proper legal standard in reaching a decision constitutes an abuse of discretion. Neustadter, supra, 418 Md. at 242. The abuse of discretion standard of review is premised, at least in part, on the concept that matters within the discretion of the trial court are much better decided by the trial judges than by appellate courts and so long as the Circuit Court applies the proper legal standards and reaches a reasonable conclusion based on the facts before it, an appellate court should not reverse a decision vested in the trial court s discretion merely because the appellate court reaches a different conclusion. Id. (quoting Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405, 433, 436 (2007)). 6

8 In the instant case, at the time the trial court granted appellee s motion, a consent order (requested by the trial judge) had been drafted, but not signed and executed by the court. Nevertheless, the draft consent order outlined the precise terms that were agreed upon during the settlement agreement reached on October 9, Further, upon a review of the trial transcript from the October 9, 2009 hearing, as well as the order dated May 18, 2010, the trial court exercised appropriate discretion in granting appellee s motion to enforce settlement on the record. Indeed, the findings and terms agreed to by the parties are identical. Prior to the parties respective counsel qualifying appellant and appellee as to their understanding of the agreement through voir dire, the following colloquy ensued: [PLAINTIFF COUNSEL]: The equation is 70,000 minus THE COURT: Minus. [PLAINTIFF COUNSEL]: what he owes for child support arrears, minus the health insurance cost that she has incurred from [DEFENSE COUNSEL]: On behalf [PLAINTIFF COUNSEL]: the children. [DEFENSE COUNSEL]: of the children. [PLAINTIFF COUNSEL]: Right. THE COURT: On behalf of the children. [PLAINTIFF COUNSEL]: That s the equation. THE COURT: Okay. Less whatever he can show that he s paid? 7

9 [PLAINTIFF COUNSEL]: Correct. [DEFENSE COUNSEL]: [PLAINTIFF]: THE COURT: And less what she can show that she paid for the child s the children s health insurance. Yeah. Okay. So, that s all a loan. * * * [DEFENSE COUNSEL]: THE COURT: It s not a definite figure, Your Honor. I know that. However, but you ve got to put those figures together [PLAINTIFF COUNSEL]: Right. THE COURT: in order to make your subtractions. [DEFENSE COUNSEL]: Correct. [PLAINTIFF COUNSEL]: Right. * * * THE COURT: Alright. Now, prepare an order to this effect, send it to [appellee s counsel], and then once it s been agreed, signed by you and you, then send it to [the judge] and she ll send it to me, I m over I m just filling in today and I ll sign that order. 8

10 It is clear from the record that the only issue left to be decided between the parties was the exact figure to be deducted from the $70, owed to appellee. Following the hearing, the parties agreed that appellee owed $10, in child support arrears and $3, for his one-half share of medical and dental expenses. Indeed, appellant s counsel included the exact amount in the draft consent order. As a result, the parties agreed that appellant owed appellee a net amount of $56, The record demonstrates that neither parties disputed this amount. The draft consent order included all of the terms, findings, and recommendations agreed to by the parties at the hearing. In particular, the draft consent order provided that: (1) appellant owes appellee $56,470.18; (2) the child support order is not modified; (3) all child support arrears and medical/dental expenses have been satisfied; (4) appellant shall continue to pay health and dental insurance benefits for the minor children; (5) the parties shall participate in family counseling; (6) appellee shall have access to the school and medical records of the minor children; (7) appellee shall sign the necessary documents for the children to obtain passports; (8) appellant shall give appellee at least 90 days notice if she moves the children s residence; and (9) in the event that appellant seeks employment outside the United States, the parties shall petition the court for a review of the issuance of passports of the minor children. These terms are the exact terms that were discussed and agreed to by the parties at the October 9, 2009 hearing. 9

11 Similarly, the order granting appellee s motion to enforce settlement on the record is identical to the terms agreed upon at the October 9, 2009 hearing. Further, the order reflects all of the terms in the consent decree drafted by appellant s counsel. Although the trial court included a paragraph ordering appellant to pay appellee $1, in attorney s fees, it is of no consequence to the validity of the order enforcing the settlement agreement. Under the circumstances, it seems appropriate that appellant should bear some of the burden for appellee s fees, since it was, in part, her failure to adhere to the trial judge s order not only to acquire a loan to repay appellee, but also her failure to sign a confessed judgment note if she was unable to acquire such loan within 30 days of the date of the hearing that necessitated the fees. Further, summary enforcement of settlement agreements is most appropriate where there is no factual dispute and no legal defense to enforcement. Pearlstein, supra, 78 Md. App. at 16 (internal quotations omitted). Here, both parties were represented by legal counsel at the October 9, 2009 hearing. Upon a thorough review of the record, both parties clearly agreed that they understood the agreement and that they were entering the agreement freely and voluntarily. According to the transcript, both parties were active along side their legal counsel in setting forth the agreement on the record, further suggesting that they entered the agreement freely and voluntarily. The transcript from the hearing also demonstrates that there was no factual or legal dispute remaining between the parties, except for the exact 10

12 dollar amount to be subtracted from the $70, owed to appellee. Thereafter, the final amount owed to appellee has since been resolved. The record further reflects that the trial judge used her discretion soundly in granting appellee s motion. Garg, supra, 393 Md. at 238 (quoting Jenkins, supra, 375 Md. at ). Moreover, the record is devoid of any evidence that the trial judge s discretion was exercised in an arbitrary or capricious manner, or beyond the letter or reason of the law. Id. Accordingly, the trial court did not abuse its discretion in granting appellee s motion to enforce settlement on the record. II. In this case, we do not have a proper record with respect to the remaining issues raised 1 by appellant. In particular, the trial court did not consider whether appellee would be responsible for all court fees, including any and all fees associated with the Circuit Court for Howard County. The record before this court stems solely from the settlement agreement addressed at the October 9, 2009 hearing, which is what we are limited to review in this appeal. Under Md. Rule 8-131(a), the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court. 1 Appellee filed a Motion to Stay Proceedings in this Court. Appellee argues that there are pending cross petitions for contempt in the trial court, and therefore, this Court should stay the proceedings. Appellee s motion to stay is denied because this Court must address the enforcement of the settlement agreement before the remaining issues may be addressed by the trial court. 11

13 Appellate courts may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal, but this discretion is rarely exercised because it is preferred that there be a proper record with respect to the challenge, and that the parties and trial judge are given an opportunity to consider and respond to the challenge. See Kelly v. State, 195 Md. App. 403, (2010), (quoting Chaney v. State, 397 Md. 460, 468 (2007)), cert. denied, 417 Md. 502, cert. denied, 131 S. Ct (2011). Therefore, the remaining issues (questions 2-9) presented by the appellant are not preserved for appellate review. As such, those issues must be initiated at the trial level. For the reasons set forth above, we affirm the judgment of the Circuit Court for Howard County. JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT. 12