UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND. No September Term, 2011 LAVERNE ANDREA FRENCH TROY CATLETT

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1 UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No September Term, 2011 LAVERNE ANDREA FRENCH V. TROY CATLETT Kehoe, Hotten, Eyler, James R., (Retired, Specially Assigned), JJ. Opinion by Hotten, J. Filed: November 15, 2012

2 On June 16, 2010, appellant, Laverne Andrea French, filed a motion in the Circuit Court of Montgomery County, seeking to compel appellee, Troy Catlett, to pay child support arrears of approximately $4500, and her attorney s fees. The Family Division Master (hereinafter Master ) denied appellant s motion, finding that appellee paid appellant a larger amount of child support than the consent order demanded, which satisfied the outstanding arrears. Furthermore, the Master recommended that appellant pay appellee s attorney s fees of $6500. Appellant filed exceptions to the Master s recommendations, alleging that he erred in (1) crediting appellee with subsequent payments as satisfaction for the child support due and in (2) prohibiting her testimony concerning the purpose of appellee s subsequent payments. During a hearing, the trial court overruled appellant s exceptions, and adopted the Master s recommendations. Appellant noted an appeal, and presents eight questions for our consideration: 1. Where evidence was relevant in determining whether the appellee had made an accord and satisfaction for an unpaid amount of his court-ordered child support obligation and was also relevant to determining the financial status of the parties, did the trial court err in sua sponte using the Parol Evidence Rule, a substantive rule of contract law and not an evidentiary one, to wholly deny the introduction and presentation of that evidence? 2. Where the Master refused to allow exploration of fundamental elements of the merits of the case which had become a satisfaction contracts case and was no longer an arrears case after stipulation of arrears was admitted into evidence at the beginning of the hearing did the Court s trying the case under the improper theory amount to fundamental error. 3. Notwithstanding the Master s extraordinary steps to keep certain facts out of evidence, where a reasonable, rational, and logical person could draw an inference from the Master s own comments and the fact that in the more than twelve years of the parties not ever going back to court, the parties in reality must have made some agreements between themselves, and that at least at

3 some point these must have dealt with financial arrangements for the continued care of the minor child, did the trial court err in granting a directed verdict? 4. Did the trial court Master err by engaging in speculation and supposition instead of facts with regard to his mandatory determination of the Maryland Family Law (b) factors when common sense would dictate that the single mother custodial parent bore essentially all of the increased costs for raising the child, and where he had a full opportunity to appropriately develop the record and make inquisition into the financial information which had been subpoenaed by the appellant? 5. Where the Master had declared that the appellant was justified in bringing her access case to court, and when the amount of outstanding unpaid child support had been stipulated to, and where he declared that even if she had $1 million dollars in expenses for the minor child, it wouldn t matter did the Court err in its failure to apply all of the mandatory Family Law factors in providing the rationale for awarding fees? 6. Even if it could be said that the required considerations were made, was the good cause clause of Maryland Family Law (c) implicated in this case? 7. Whether there was undue influence in this matter, as described and confirmed by an Officer of the Court, Ms. Sunderman, such that the Master s bias was obvious and notorious, affecting the fairness of the proceedings? 8. Was it error for two Chancellors to fail to exercise their independent judgment on the legal issues of: the Parol Evidence Rule, the directed verdict, and , and also fail to provide oral or written explanation, as required under Maryland case law, before overruling the exceptions, ordering fees, and directing a judgment against appellant? We have combined and rephrased appellant s issues for clarity: 1. Whether the trial court erred in granting a directed verdict, when it held that appellee was entitled to apply prior overpayments of child support to subsequent underpayments of child support 2

4 2. Whether the trial court erred in prohibiting appellant from testifying regarding the reason why appellee overpaid child support from January 2004 through June For the reasons that follow, we affirm the judgment of the trial court. We need not resolve whether the court erred in awarding attorney s fees under MD. FAM. LAW. CODE ANN because the court granted appellant s motion to stay the payment of appellee s attorney s fees. PROCEDURAL BACKGROUND The procedural history of this matter is extensive, so we will present an overview for purposes of the instant appeal. Appellant and appellee are the biological parents of minor child, Lauren Aleya French (hereinafter Lauren ), born October 19, On October 1, 1997, appellant filed a complaint for custody, requesting that the court (1) order appellee to pay child support and (2) deny appellee visitation rights. On October 3, 1997, appellee filed a complaint for visitation, requesting that the court grant him two weekends per month, four weeks during the summer, and several holidays throughout the year. On November 18, 1997, appellant filed an answer to appellee s complaint, asserting that his request was unreasonable and implored the court to establish a visitation schedule. On December 17, 1997, the court 1 entered a consent order, in which appellee was granted alternate weekend visitation and ordered appellee to pay appellant $849 per month for child support beginning and accounting from October 1, This occurred on December 18,

5 On July 23, 2008, appellee filed a complaint for modification of child custody, 2 averring that (1) Lauren lacked stability because she resided in several different homes and enrolled in various schools; (2) Lauren indicated her desire to reside in appellee s New Jersey residence; and (3) appellee desired to participate in decisions concerning Lauren s wellbeing. On August 26, 2008, appellant filed a response, asserting that (1) her career adjustments resulted in the residential changes; (2) Lauren lived in Montgomery County throughout her life; and (3) appellee was consistently engaged in decisions concerning Lauren s upbringing. On May 12 and 13, 2009, the parties appeared for trial regarding appellee s complaint for modification of child custody. On May 30, 2009, the Honorable D. Warren Donohue considered testimony from the parties and character witnesses, in addition to documents that were admitted into evidence, and entered a custody order, in which he awarded appellee primary physical and sole legal custody of the minor child, and granted appellant visitation. 3 On August 11, 2009, appellee filed a motion for child support and attorney s fees, requesting that the court (1) award him a reasonable amount of child support and (2) award him reasonable attorney s fees and costs. On September 16, 2009, appellant filed a motion to dismiss appellee s motion, avowing that appellee failed to comply with Md. Rule 9-202(f), 2 On April 16, 2009, appellee filed an amended complaint for modification of custody, which the court denied on May 6, On September 9, 2009, Judge Donohue amended the custody order on grounds not pertinent here. 4

6 which required that a financial statement accompany a motion for modification. The court denied appellant s motion. On November 4, 2009, appellant opposed appellee s motion, and filed her motion for attorney s fees, alleging that (1) she obtained significant debt by financing most of Lauren s expenses; (2) appellee had a significant net worth; and (3) appellee s failure to provide his relevant financial documents prolonged the litigation. On November 30, 2009, appellant filed (1) a motion to dismiss appellee s motion for child support; (2) a motion for sanctions; and (3) a motion to compel discovery requests. On December 28, 2009, appellee filed a response in opposition of the motion, avowing that appellee provided appellant with the requested discovery, and that the remainder of appellant s motion was irrelevant because the court would address the merits during the hearing. The court denied appellant s motion, and on January 7, 2010, the court ordered that appellant pay appellee $450 per month for child support beginning and accounting from January 1, On June 16, 2010, appellant filed a motion to modify the child s access arrangements, alleging that appellee deviated from the parties customary practice of appellee transporting Lauren between New Jersey and Maryland. Appellant also alleged that appellee only paid $725 per month during 2001 through 2003, instead of the court-ordered $849, which resulted in an arrears of approximately $4500. On September 30, 2010, appellee filed a motion to 4 The court deviated from the child support guidelines because of appellant s support obligations to her other children, as well as the transportation expenses concerning Lauren s relocation to New Jersey. 5

7 dismiss appellant s motion, asserting that (1) appellant answered that no arrears were owed during her March 27, 2009 deposition and (2) appellant inappropriately requested that the court retroactively adjust appellee s child support obligation. During the hearing on December 22, 2010, the parties reached a settlement on appellant s request for a modification of access. Regarding the arrears, appellee conceded that he decreased his payments to $725 per month during September 2001 through August However, he resumed the $849 payments, then voluntarily increased his payments to 5 $950 per month, and eventually to $1100 per month. The Honorable Clark E. Wisor, III, acting as the Master, presented oral recommendations, finding that: Appellee s increased payments more than satisfie[d] the outstanding arrears. I have a court order from that period of time. That court order was never modified. I have no additional evidence before me that that [sic] should, that that [sic] money should have gone to any other obligation. None. Ms. Sunderman, [appellant s counsel,] in all candor, you rested. You didn t put any evidence on that it was due for a health insurance payment, or for any other bill. I have no evidence before me. 5 According to the record, on December 22, 2010, the trial court determined: It [was] undisputed from the testimony of... [appellee] that... from January 2004 until August of 2008, he paid an extra $101 per month, which [was] 20 months, which equal[ed] $2,020. Then effective August the 8th, 2005 through June of 2009, by my math, that [was] an extra 46 months, at the rate of $251 over and above the $849 order, for a total of $11,546. Added together, that equate[d] to $13,566, minus the 2976 that was stipulated to for nonpayment between those times, leav[ing] a balance of $10,590 by my math. 6

8 Thereafter, Master Wisor ruled in favor of appellee. Furthermore, Master Wisor found that he could not establish the requisite and necessary findings under Md. Code (Repl. Vol ), (b) of the Family Law Article because appellant only submitted a retainer agreement, as opposed to her bills for legal services or evidence regarding her ability to pay the fees. Hence, the Master recommended that appellant s request for attorney s fees be denied; however, he determined that appellee s bills were fair and reasonable, and recommended that appellant pay $6500 of appellee s attorney s fees. On January 3, 2011, appellant filed exceptions to Master Wisor s recommendations, averring that he erred in (1) crediting appellee with subsequent payments as satisfaction for the child support due and (2) denying her the opportunity to testify to the purpose of the subsequent payments. On February 23, 2011, appellee filed a response in opposition to appellant s exceptions. On March 2, 2011, appellant struck the appearance of her counsel, and proceeded pro se before the Honorable David A. Boynton. Here, appellant alleged that 6 Md. Code (Repl. Vol. 2006), (b) of the Family Law Article states: Required considerations. Before a court may award costs and counsel fees under this section, the court shall consider: (1) the financial status of each party; (2) the needs of each party; and (3) whether there was substantial justification for bringing, maintaining, or defending the proceeding. 7

9 appellee s subsequent child support payments were not for the outstanding arrears, but rather for Lauren s health insurance expenses. Judge Boynton found that:... [T]he purpose of the hearing in large measure determine[d] what [was] relevant to the hearing or not relevant to the hearing. And so the fact that [appellant wasn t] there on a modification mean[t] that Master Wisor was not going to listen to evidence that was going to, that was relevant to going back in time and retroactively modifying the child support, which was what appeared to be the purpose for bringing all of these expenses, that it was to show that I had all of these additional expenses in the past years and therefore, I m not sure what because it wasn t really relevant to the hearing that was going on that day. That was the reason why he sustained the objection going into all of the expenses, because expenses [were] not relevant unless it... [was] to deal with an issue of modification, which wasn t before the court that day. On April 18, 2011, Judge Boynton overruled appellant s exceptions, and adopted Master Wisor s recommendations. On May 2, 2011, the Honorable Joseph A. Dugan, Jr. issued an order, which also denied appellant s claim for arrears and her attorney s fees, but granted appellee s attorney s fees in the amount of $ There was confusion regarding the reason why two different judges ruled on appellant s exceptions, as Judge Boynton overruled the exceptions and Judge Dugan signed the proposed order concerning Master Wisor s recommendations. 8

10 8 On May 24, 2011, appellant filed a notice of appeal to our Court. On June 9, 2011, appellant filed a motion for a stay of enforcement of the court s orders. During a hearing on September 9, 2011, appellant appeared pro se, asserting that the attorney s fees should have been denied because:... [T]he evidence was presented that I m in pretty dire financial straits. It [has] been about $80,000 to $100,000 that I ve spent in opposing, you know, two fathers that have been going after me for going on over five years now. This, the judicial determinations in this case were so egregious that I think that it warrant[ed] such a stay, because the issues were involving children. And because of my financial situation, I had to pay my own $7,000 in fees to fight against numerous mountains of discovery, things like that, that I didn t even depose the other side, I didn t even ask for much discovery.... Thereafter, the Honorable Katherine D. Savage granted the motion to stay the payment of appellee s attorney s fees. DISCUSSION I. Whether the Trial Court Erred in Granting a Directed Verdict, When It Held That Appellee Was Entitled to Apply Prior Overpayments of Child Support to Subsequent Underpayments of Child Support? The trial court may exercise its discretion in retroactively applying overpayments to past due underpayments that are in violation of a court order. See Fantle v. Fantle, 140 Md. 8 On March 6, 2012, appellant filed a brief with this Court. Md. Rule 8-502(a)(2) provides that [w]ithin 30 days after the filing of the appellant s brief, the appellee shall file a brief [....] According to Md. Rule 8-502(d), [a]n appellant who fails to file a brief within the time prescribed by this Rule may not present argument except with permission of the appellate court. On March 15, 2012 and July 16, 2012, appellee filed a motion for extension of time to file a reply brief, which our Court granted. Appellee s brief was required to be filed no later than September 1, Despite the fact that appellee failed to file a reply brief, we note that the outcome of this appeal would not have been different. 9

11 App. 678, (2001). Thus, we must be satisfied that the court properly exercised its discretion, and did not abuse it. Langston v. Langston, 136 Md. App. 203, (2000), aff d, 366 Md. 490 (2001). In Fantle, 140 Md. App. at 680, our Court was asked to resolve the issue of whether voluntary overpayments of alimony could be applied to subsequent underpayments that were in violation of the parties property settlement agreement and a court order. The parties were separated in 1990 and were divorced in 1994, in which their agreement was incorporated, but not merged. Id. at 681. Beginning in September 1995, the court reduced the plaintiff s payments from $2,500 to $2,000 per month to his former wife, the defendant. Id. Despite the reduction, the plaintiff continued to pay the defendant $2,500 per month because [she] needed the money, and... he was making enough money during that time. Id. at 682. However, in August 1998, the plaintiff reduced the payments from $2,000 to $1,000 per month when he experienced financial hardships. Id. The plaintiff filed a petition to modify alimony, and the defendant countered by filing a motion to hold the plaintiff in contempt for the underpayments. Id. at The trial court held that the plaintiff could not lawfully apply his overpayments to his subsequent arrearages of $16,400 because there had been no formal court order or agreement modifying the parties agreement to satisfy a reduction of the plaintiff s arrearage. Id. at 680. We remanded the case because the trial court erroneously held that it had no discretion to retroactively modify the plaintiff s alimony obligation. Id. at

12 Although remanded, we still addressed the issue and determined that the court had evidence from which it could have found an implied agreement to modify the alimony obligation. See Fantle, 140 Md. App. at Even though the parties did not make expressed statements, they may have had a tacit understanding that each would assist the other by either increasing or decreasing payments as circumstances warranted. Id. at 688. Additionally, the parties may have had an expressed agreement, as evidenced in the parties 9 oral communications and a letter that the defendant wrote to the plaintiff. Id. Md. Code (Repl. Vol. 2006), (b) of the Family Law Article states that [t]he court may not retroactively modify a child support award prior to the date of the filing of the motion for modification. There are strong policy considerations in favor of prohibiting retroactive modification of child support to a date prior to the actual modification request. Langston, 136 Md. App. at 234. In 1988, the limitations on retrospective modification were enacted by the General Assembly in response to a federal stimulus to the States concerning their enforcement of child support awards. Harvey v. Marshall, 389 Md. 243, 264 (2005) (citing 1988 Md. Laws, Chap. 338). States were not eligible for federal funds unless they adopted specific rules and procedures governing the enforcement of child support orders. Reuter, 102 Md. App. at 240. State Senator Ida G. Ruben was the sponsor of the bill that eventually became the enacted legislation. Marshall, 389 Md. at 264. On March 10, 1988, 9 In the letter, the defendant explained that she agreed to accept the reduced alimony payments to accommodate the plaintiff because he aided her during a financial hardship. Fantle, 140 Md. App. at

13 she testified before the Senate Judiciary Proceedings Committee, explicating the underlying issues and policy implications concerning Maryland s child support implementation: Id. As it stands now, a person owing back-child support payments usually has to go back to court and promises to be more timely in the future. Then the judge usually wipes out the previous debt and allows the payor to start anew with child support payments. The result is that thousands of dollars owed to children and their families are lost forever. S.B. 691 [codified ultimately as ] would end that practice by not allowing the court to retroactively modify a standing decree for child support. Children and their families would be able to get back payments they are owed. In the case sub judice, the following colloquy ensued during the March 2, 2011 hearing between Judge Boynton and appellant s counsel: THE COURT: So, so your, your position is that, if a person falls behind in child support, they can t unilaterally make greater payments to make up for it? That s your position? I don t understand that. [APPELLANT S COUNSEL]: They can but that s not what he did in this particular case. THE COURT: Oh, I thought that s what the [M]aster found that he did. I thought the [M]aster found [APPELLANT S COUNSEL]: Because he didn t THE COURT: that he fell behind [APPELLANT S COUNSEL]: Right. THE COURT: and then he made greater payments to catch up. * * * 12

14 THE COURT: The person who owed money paid additional money, and therefore he was credited for paying that money. What s I don t understand the error that you re claiming there.... Similar to Fantle, 140 Md. App. at 688, there was no clause in the consent order that determined how the parties would satisfy a reduction in appellee s arrears. However, the record indicated evidence from which the court could have found an implied agreement. During appellant s deposition, the following colloquy ensued: [APPELLEE S ATTORNEY]: Under the order that s currently enforced that requires [appellee] to pay you $849 a month, do you believe that he owes you any money [APPELLANT]: No. [APPELLEE S ATTORNEY]: under that order? [APPELLANT]: I haven t made that contention. [APPELLEE S ATTORNEY]: I m not asking you if you made a contention, ma am. I m asking you if you believe that he owes you any money under the terms of the current order. * * * [APPELLEE S ATTORNEY]: Do you believe that Mr. Catlett owes you any money for child support under the current order? [APPELLANT]: No. Appellant s deposition could have indicated that they impliedly modified the child support obligation by their inferred understanding that if appellee failed to make the courtordered payments, he would increase payments as circumstances warranted. This is logical, as it is well settled that our trial courts order a defaulted parent to make additional monthly 13

15 payments until the arrearage has been paid in full. See Reuter v. Reuter, 102 Md. App. 212, 220 (1994). Hence, the court did not abuse its discretion in determining that appellee s voluntary overpayments of child support applied to the subsequent underpayments. II. Whether the Trial Court Erred in Prohibiting Appellant From Testifying Regarding Why Appellee Overpaid Child Support From January 2004 through June 2009? Upon a proper motion to modify a decree for child support, it has been held that a court of equity may modify a court order at any time if there has been shown a material change in circumstances. Reese v. Huebschman, 50 Md. App. 709, 712 (1982) (citations omitted). It is equally well settled that the decision regarding modification of the original order is left to the sound discretion of the court and will not be disturbed unless that discretion was arbitrary or the judgment was clearly incorrect. Id. (citation and emphasis omitted). Furthermore, whether to admit lay opinion testimony is vested within the sound discretion of the trial court. Bey v. State, 140 Md. App. 607, 623 (2001) (citing Rosenberg v. State, 129 Md. App. 221, (1999)). If a court excludes such evidence, the court will not be reversed in the absence of a clear abuse of discretion. Thomas v. State, 397 Md. 557, 579 (2007). The court s ruling may be reversed if founded on an error of law or some serious mistake[.] Burris v. State, 206 Md. App. 89, 114 (2012) (citing Raithel v. State, 280 Md. 291, 301 (1977)). We will only reverse upon finding that the trial judge s 14

16 determination was both manifestly wrong and substantially injurious. Wantz v. Afzal, 197 Md. App. 675, 682, cert. denied 420 Md. 463 (2011) (citations omitted). Appellant asserts that the court erred in using the parol evidence rule because the consent order was not integrated, and her evidence, concerning the medical expenses and Lauren s additional costs, would not have contradicted or refuted anything in the writing. In 28 WILLISTON ON CONTRACTS at (4th ed. Richard A. Lord), the commentator notes the meaning of the parol evidence rule: Where the written contract purports to cover the entire agreement of the parties, and there is no proof that anything was omitted or included by fraud, accident, or mistake, all prior and contemporaneous negotiations, representations, and verbal agreements are superseded by the written agreement, and extrinsic, parol evidence is inadmissible to alter, contradict, vary, add to, subtract from, modify, or supersede the written contract. Hearn v. Hearn, 177 Md. App. 525, 540 (2007). In Fantle, 140 Md. App. at , supra, our Court concluded that the trial court erred in prohibiting the plaintiff from explaining the reasons for his overpaid alimony payments, as reflected in the following testimonial colloquy: [PLAINTIFF S COUNSEL]: And what was the purpose of the additional payment? [PLAINTIFF]: [The defendant] needed the money. [PLAINTIFF S COUNSEL]: Okay. And what was your intent with that - in paying her this additional money? [DEFENDANT S COUNSEL]: Objection. THE COURT: Sustained. 15

17 Our Court surmised, that had the plaintiff been permitted to testify, he might have presented sufficient evidence upon which the court could have concluded that the defendant agreed to, acquiesced in, or waived the difference between the reduced and court ordered payments. Id. In the case sub judice, appellant desired to present evidence concerning Lauren s medical expenses and additional costs that the parties had allegedly agreed upon for Lauren s additional support. The following colloquy between the Master and appellant s counsel is informative: [APPELLANT S COUNSEL]: What was your understanding of the reason for the increase in child, in the payments that were made? [APPELLEE S COUNSEL]: Objection. [APPELLANT]: (Unintelligible) [THE MASTER]: Sustained. Here s my problem, and I ll lay my cards on the table right now. You better give me some authority that I can consider parol evidence here, because that s where you re going. Okay?... * * * [APPELLANT S COUNSEL]: Okay. [THE MASTER]: Okay? Do you have any? [APPELLANT S COUNSEL]: No. [THE MASTER]: Then I suggest you move on to another line of questioning. Sustained. 16

18 [APPELLANT S COUNSEL]: Okay. What were Lauren s additional expenses during the period of 2004 to the time the order was, to the time the most recent order was entered? [APPELLEE S COUNSEL]: Objection. [THE MASTER]: Sustained. Pause the record, please. Pause the record. Judge Boynton adopted the Master s finding and determined that the additional expenses were irrelevant because the hearing was not for purposes of modification. The judge stated: Now, something that might have been relevant would [have] be[en], Okay, here s a copy of an order, obliging [appellee] to pay medical insurance, here s a copy of the premium for the medical insurance cost, here s a copy of an e- mail where we discussed this and he agreed to increase the monthly payments to cover the cost of that, here s a copy of the check to show that that amount increased; therefore, our argument is that the increased payments were directly related to the insurance premiums. Now, that would have been relevant but none of that happened. Unlike our case, in Fantle, 140 Md. App. at , if the plaintiff would have been permitted testify, his evidence would not have retroactively modified the terms of the parties agreement. Instead, the plaintiff was merely testifying regarding whether the defendant agreed to or waived the difference between the reduced and court ordered payments. In our case, however, if the court would have allowed the evidence, it would have violated Md. Code (Repl. Vol. 2006), (b) of the Family Law Article because it would have altered, varied, and/or modified the consent order. Appellant s motion to modify the child s access arrangements only asserted that (1) appellee deviated from the parties customary practice of appellee transporting Lauren 17

19 between New Jersey and Maryland and that (2) appellee only paid $725 per month during the years of 2001 through 2003, instead of the court-ordered $849, which resulted in an arrears. There was nothing in appellant s pleading concerning Lauren s medical insurance expenses or any other additional expenses. And so when the [M]aster had to rule, the [M]aster ruled on the evidence that was before him, not what [appellant] might have known. The court was not permitted to allow appellant s testimony, since the parties were not seeking to modify the consent order. Appellant asserts that the matter was a satisfaction contracts case, which is incorrect. Instead, the issue concerned a math problem regarding [h]ow much did [appellee] owe [appellant] and how much did he pay [appellant]. Hence, the court neither exhibited biased behavior nor abused its discretion in prohibiting appellant from testifying regarding why appellee overpaid child support. JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY IS AFFIRMED. COSTS TO BE PAID BY APPELLANT. 18