Gillespie v. Gillespie
206 Md. App. 146
| Md. Ct. Spec. App. | 2012Background
- Marriage in 1993; three children; parties executed a Voluntary Separation and Property Settlement Agreement (Aug. 24, 2009) providing joint legal and physical custody with alternating weekly schedule.
- Divorce granted Oct. 5, 2009; Agreement incorporated but not merged; custody continued as joint legal and shared physical custody.
- June 9, 2010, Father filed motion to modify custody; custody modification trial held Apr. 19–22, 2011; court issued bench decision Apr. 22, 2011 and written order May 5, 2011.
- Court modified physical custody to Father as primary custodian and gave Father tie-breaking authority on legal custody in case of impasse.
- Mother sought post-trial relief; court awarded fees to the court-appointed evaluator (Dr. Snyder) and best-interest attorney (Winters); Father cross-appealed.
- This appeal challenges (1) admissibility of the Lish Report, (2) the material-change-in-circumstances finding, and (3) the fee awards; court affirms custody modification and vacates remand regarding fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of the Lish Report | Mother argues the Lish Report is inadmissible substantive evidence. | Father argues the Lish Report may be used by the expert to illuminate Dr. Snyder’s opinions. | Lish Report admissible for limited purpose to evaluate expert opinion (not substantive proof) and harmless if excluded. |
| Material change in circumstances justification for custody modification | Mother contends no material change since original order. | Father contends deterioration in Mother's mental health constitutes material change. | There was a material change in circumstances and custody modification is supported. |
| Fees for best-interest attorney and court-appointed evaluator | Father argues court failed to evaluate financial resources and needs before awarding fees. | Mother argues fees were warranted due to custody proceedings and needs. | Remand for proper findings on fees in accordance with statute; remand limited to fee determinations. |
Key Cases Cited
- In re Yve S., 373 Md. 551 (Md. 2003) (three-part standard of review for custody rulings; best interests focus)
- Wagner v. Wagner, 109 Md.App. 1 (Md. 1996) (material change analysis in custody modification)
- McMahon v. Piazze, 162 Md.App. 588 (Md. 2005) (two-step approach to material change and best interests)
- Meyr v. Meyr, 195 Md.App. 524 (Md. 2010) (agency fees; use of §12-103(b) factors for best-interest attorney fees)
- Ledvinka v. Ledvinka, 154 Md.App. 420 (Md. 2003) (need for explicit findings to review attorney fee awards)
- Hutton v. State, 339 Md. 480 (Md. 1995) (trustworthiness and admissibility of hearsay used by experts)