Head, Catherine E.

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Recent Developments: McCready v. McCready and Domingues v. Johnson: Court of Appeals Reviews Standard for Modifying Custody Orders

University of Baltimore School of Law

University of Baltimore Law ForumVolume 22Number 3 Spring, 1992 Article 141992Recent Developments: McCready v. McCreadyand Domingues v. Johnson: Court of AppealsReviews Standard for Modifying Custody OrdersCatherine E. HeadFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, pleasecontact snolan@ubalt.edu.Recommended CitationHead, Catherine E. (1992) "Recent Developments: McCready v. McCready and Domingues v. Johnson: Court of Appeals ReviewsStandard for Modifying Custody Orders," University of Baltimore Law Forum: Vol. 22 : No. 3 , Article 14.Available at: http://scholarworks.law.ubalt.edu/lf/vol22/iss3/14McCready v. McCready and Domingues v. Johnson: COURT OF APPEALS REVIEWS STANDARD FOR MODIFYING CUSTODY OR-DERS. Cutting a path through an over-grown garden of intennediary appel-late court precedent, the Court of Ap-peals of Maryland clarified the law regarding changes in custody in McCreadyv. McCready, 593 A2d 1128 (Md. 1991) and Domingues v. John-son, 593 A.2d 1133 (Md. 1991). The court held that when a change in cus-tody is sought, a trial court should not wait for an adverse effect on the child to occur but should instead decide whether the change in circumstances might in the future prove harmful to the child. In McCready, the parties had agreed to joint legal and physical custody of their daughter, Erin. The agreement specified a schedule for the shared physical custody. Several months af-ter the order confinning the agreement was entered, the mother, Barbara McCready, filed a complaint for di-vorce and pennanent custody of Erin. Mrs. McCready claimed a change in custody was necessary because her employment schedule had changed from weekends to weekdays and that joint physical custody was causing the child to experience stress and confu-sion. In his answer, the father, Timo-thy McCready, admitted that the joint physical custody had not proven ben-eficial to the child, but stated that it would be in Erin's best interests to have primary custody granted to him. The trial judge agreed with the father and granted him primary physical cus-tody. On appeal, the mother presented two arguments, the most important being that the ''best interest of the child" standard should be replaced by an inquiry into whether evidence ex-isted showing a material change in circumstances affecting the welfare of the child. The court ofappeals granted certiorari on its own motion from the mother's appeal to the Court of Special Appeals of Maryland. The Court of Appeals of Maryland used McCready to explain that the interaction between the concepts of ''best interest ofthe child" and "mate-rial change in circumstances." In any change of custody dispute, proof of a change in circumstances is ordinarily required. McCready, 593 A2dat 1130. The requirement of proof serves to prohibit parents from relitigating ques-tions of custody and to afford finality in custody orders. Id. The court noted that there will frequently be some evi-dence of changes which have occurred since the earlier custody detennination was made. Id. at 1131. Detennining whether those changes warrant a change in cUstody "necessarily requires a con-sideration of the best interest of the child." Id. The court resolved the confusion between the two concepts by categorizing the question of "changed circumstances" as a thresh-old question to the "best interest" de-tennination. Id. The court next considered the mother's second argument that the chancellor's decision to modify physi-cal custody was erroneous. Id. The court stated that it "will not set aside factual findings made by the chancel-lor unless clearly erroneous, and we will not interfere with a decision re-garding custody that is founded upon sound legal principles unless there is a clearshowingthatthe chancellor abused his discretion." Id. The court reviewed the chancellor' s findings and concluded that he had not abused his broad discre-tion. Id. at 1132. In an opinion decided the same day as McCready, the Court of Appeals of Maryland reviewed a similar case, Domingues v. Johnson, 593 A,2d 1133 (Md. 1991). In Domingues, the parties had joint legal custody but the mother had primary physical custody. The mother remarried and wished to relo-cate to Texas with the parties' children. She petitioned the court for a change in the father's visitation schedule which had been set forth in a prior court order. The father cross-petitioned for sole custody. After an extensive hearing, a domestic relations master found changes in circumstances, including: 1) the remarriage ofthe mother and her removal with the children to Texas; 2) interference with the relationship be-tween the father and his children by the mother's new husband; 3) the failure ofthe mother to communicate with the father with respect to the children; and 4) the failure of the mother to encour-age an appropriate relationship between the father and his children. Id. at 1135. Accordingly, the master awarded pri-mary custody to the father. The mother'S exceptions to the master's finding were heard by a chan-cellor, but no additional testimony was taken. Satisfied with the master's find-ing, the chancellor overruled the ex-ceptions and entered an order imple-menting the recommendations made by the master. On appeal, the court of special ap-peals reversed, holding that the chan-cellor improperly applied the ''best in-terests ofthe child" standard when he should have instead determined whether there was sufficient evidence of a change in circumstances affecting the welfare ofthe children. Id. at 1134. The intennediate appellate court deter-mined that the mother's remarriage and move to Texas constituted changes in circumstances, but because neither of those circumstances had any de-monstrable adverse effect on the chil-dren as ofthe hearing date, they could not be considered changes in circum-stances affecting the welfare of the children. Id. at 1138. Therefore, the court decided, the mother should have been granted custody. Id. The Court of Appeals of Maryland, reiterating its holding in McCready, reversed the court of special appeals. The court detennined "[t ] hat the (court of special appeals') view of'change' is unduly restrictive" and that proofthat change has already caused identifiable harm to the children is not necessary before a custody order can be modi-fied. Id. Instead, the court found ''that it is sufficient if the chancellor finds _____________________________ 22.3lThe Law Forum - 31 that changes have occurred which, when considered with all other rel-evant circumstances, required that a change in custody be made to accom-modate the future best interest of the children" Id. at 1139. The court ac-knowledged that "[a] determination of custody requires an element ofpredic-tion" and that it is "neither necessary nor desirable" to wait until a child is harmed to make a custody change. Id. The court also examined the rela-tionship between a master's recom-mendations and a chancellor's judge-ment. In particular, the court was troubled by the chancellor's failure to exercise independent judgment after subjecting the master's fact-finding to a clearly erroneous test. The court called the burden on chancellors "sub-stantial," and the court emphasized that while consideration may and should be given to a master's recom-mendations, the final decision must be that of the chancellor's. Id. at 1135, 1138. ''That the conclusions ... ofthe master are well supported by the evi-dence is not dispositive ifthe indepen-dent exercise of judgment by the chan-cellor on those issues would produce a different result," explained the court. Id. at 1135. The McCready and Domingues opinions should provide fresh guid-ance for change-in-custody cases. The decisions affirmed that the standard for modification of custody orders is the ''best interests ofthe child." Addition-ally, the Court of Appeals of Maryland clearly stated that a child need not have been adversely affected before a chance in custody can occur. Finally, the court's emphasis on the chancellor's duty to exercise independent judgment forces trial judges to take procedural steps to avoid the appearance of rub-ber-stamping the recommendations of masters. - Catherine E. Head 32 - The Law Foruml22.3 Murphyv. Edmonds: MARYLAND'S STATUTORY CAPON NONECO-NOMIC DAMAGES IN PER-SONAL INJURY CASES IS CON-STITUTIONAL AND NEITHER VIOLATES DUE PROCESS NOR DENIES RIGHT TO A JURY TRIAL. In Murphy v. Edmonds, 601 A.2d 102 (Md. 1992), the Court of Appeals of Maryland upheld the State's statu-tory cap on noneconomic damages in personal injury cases as constitutional. Using the least burdensome test in analyzing the Courts & Judicial Pro-ceedings article, section 11-108 ofthe Maryland Code, the court found that the law was rationally related to the State's purpose and did not violate the equal protection clause of the constitu-tion. The court's ruling also means that limiting a jury's award with a noneconomic damages cap does not violate an individual's constitutional right to a jury trial. In justifying it's position, the court proclaimed its def-erence to the legislature in removing the issue from the judiciary and enact-ing the cap with legislation. Sarah Murphy was involved in an automobile accident while driving on 1-83 in Baltimore. The defendants' tire blew out and his truck ran across the median striking Ms. Murphy, causing her serious injuries. Ms. Murphy and her husband filed a complaint in Balti-more County Circuit Court for com-pensatory and punitive damages. The jury awarded the Murphys $510,000 in noneconomic damages. The defen-dants filed post trial motions request-ing that the noneconomic damages be reduced to the statutory amount of $350,000 as provided in section 11-108. The plaintiffs, however, argued that section 11-108 violated the equal pro-tection guarantee embodied in the Due Process Clause found in article 24 of the Maryland Declaration of Rights. The trial court ruled that the statute limited an important right, and there-fore, the statute would have to pass the heightened scrutiny test. Id. at 106. The judge found the statute failed heightened scrutiny and therefore up-held the jury award. The court of special appeals re-versed the trial court's holding in Edmonds v. Murphy, 573 A.2d 853 (Md. Ct. Spec. App. 1990). There, the court found that there was no impor-tant right which the statute was limit-ing and, determined that as such, sec-tion 11-108 was rationally related to the State's goal of economic regula-tion and thus constitutional. . The plaintiffs appealed to the court of appeals on two issues: 1) that the classification created by section Il-108 violated the equal protection guar-antee of article 24 of the Maryland Declaration of Rights, and 2) that sec-tion 11-108 infringes upon the right to ajurytrial under articles 5and23 ofthe Maryland Declaration of Rights. The court began its analysis on the premise that equal protection as ad-dressed in Fourteenth Amendment of the United States Constitution and ar-ticle 24 of the Maryland Declaration of Rights was the same concept for ana-lytical purposes. Opinions of the United States Supreme Court dealing with the Equal Protection Clause ofthe Fourteenth Amendment were there-fore viewed by the court of appeals as ''practically direct authorities." Id. at 1 08 (citing Attorney General v. Waldron, 426 A.2d 929 (1981». The plaintiffs argued that section 11-108 created two classes of people when damages were awarded under this statute. One group, composed of those who were less seriously injured, got to keep the entire jury award, while the other group, those who were more seriously injured, did not. Such classi-fication, the plaintiffs argued, was in violation ofthe equal protection guar-antee of the Maryland Declaration of Rights. In addressing the plaintiffs' claim, the court discussed the three different standards of review for classifications chaJlenged under the equal protection guarantees. The least restrictive stan-dard of review was the rational basis 

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Recent Developments: McCready v. McCready and Domingues v. Johnson: Court of Appeals Reviews Standard for Modifying Custody Orders

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