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									                               Family Law News
                  A newsletter published by the Section Council of the Section of Family & Juvenile Law


Maryland State Bar Association, Inc.                                                       January 2008




                                   Table Of Contents
                      Chair’s Message                                                          2
                      Message from the Editor                                                  2
                      Legislation Update                                                       3
                      Website of the MOnth                                                     3
                      Paving the Way for the Appellate Path                                    4
                      Carroll County Practice and Procedure                                    5
                      Mark Your Calendars                                                      6
                      New Health Care Cost Provisions                                          9
                      The Birthday List                                                        11
                      Uniform Collaborative Law Statute Being Drafted                          13
                      Tax Free Transer of IRA to Divide Marital Property
                      Revisited: Separation Agreement Must Be Incident
                      To Decree of Divorice                                                    14
                      Collaborative Practice Grows Far and Wide                                17
                      Case Notes- Conaway v. Deane                                             19
                      Case Notes- Taylor v. Mandel                                             20
                      Case Notes- Suter v. Stucky                                              21
                      Case Notes- Whittington v. Whittington                                   23
                      Case Notes- Hearn v. Hearn                                               25


                                           Editor: Walter A. Herbert, Jr.
                                               Chair's Message
        n the last issue of the Family Law News, there was an        Our Legislative Subcommittee has also been hard at work for
        article which reviewed the circumstances under which         several months to prepare for the forthcoming 2008 legislation
        an IRA might be divided. That article caused much            session. Our Section Council has been working with many
        interest and discussion. We thought that the topic           other groups and individuals who are interested in offering a
        deserved an expanded treatment and analysis. We              comprehensive bill regarding custody, which would bring Mary-
recruited Marcia Fidis, Esquire, a partner in the firm of            land in line with the majority of states that have a statutory
Pasternak & Fidis, P.C. to write a detailed analysis. Marcia         basis for how custody cases should be treated and the stan-
has practiced in the area of Estate Planning and Divorce Taxa-       dard court should use in deciding same. Further information
tion for over 30 years. Marcia’s article appears in this issue;      will be provided by Dorothy Fait (chair of the legislative sub-
we have also posted her article on the Family Law Section of         committee) in the next issue of the Family Law News.
MSA website. (As I previously announced in the Chair’s mes-
sage of the last issue of the Family Law News, we have un-           Finally, in an effort to engage and support section members,
dertaken to redesign the website; this is the first step in that     the Section Council has designed an online survey. The pur-
process). I commend the article to all members, and on be-           pose of the survey will be to solicit opinions about section
half of the entire Family Law Section and the Section Coun-          activities such as MICPEL, our
cil, thank Marcia and her firm for providing such an educa-          legislative efforts, etc. This sur-
tional service to all of us.                                         vey will be launched via the
                                                                     listserv in the near future, so
In the Save the Date category, Family Law University is              please keep an eye out.
scheduled for Friday, February 8, 2008. Our MICPEL Sub-
committee under the direction of Erin Gable, has been hard
at work in planning for this event. This is always a very
                                                                     Marc B.Noren, Chair
popular program, and I urge all of you to contact MICPEL             Family Law Section Council
to obtain further information and registration materials.            Baltimore, Md.
This year’s curriculum will focus on the recurring issues            If any Section member has a question, suggestion or comment
that confronts a family law practitioner when litigating a           about the Section or any of our activities, I welcome your con-
custody case.                                                        tact. I can be reached via e-mail at mnoren@adelbergrudow.com.




                            Message from the Editor
           Every year at this time I badger our Legislative Chair for a “preview of coming attractions”, and our current
           Chair, Dorothy Fait, does not disappoint: see her article for information on the topics we expect to see in
           Annapolis this year as well as her primer on tracking bills.

           Do you do appellate work? I don’t, but Cynthia Young does, and her article below highlights a few recurring
           problems and how to fix them.

           Speaking of appeals, our appellate courts have been very busy: we have four Case Notes for your review as
           well as an in-depth look at the Conaway decision.

           Oh, and don’t forget FLU, the MICPEL committee has really assembled a top notch faculty (see announcement
           on page 18), hope to see you there…

                                   Please contact me with thoughts, comments, article ideas, etc.:
                                                        Herbertlaw@att.net
                                                            301.952.0707
                                                     Next Issue: March 2008



2 Section of Family & Juvenile Law                                                                                     January 2008
                                             LEGISLATION UPDATE
                                                             By: Dorothy Fait
It’s the season again and the Maryland Legislature will start the       napolis during the ninety day session, anyone who wishes to
legislative session on January 9,2008. The session will end on          follow these bills or any others can access the progress of the
April 7, 2008. The Family Law Section Council of the Maryland           bill on the legislature’s website located at: www.mlis.state.md.us.
State Bar has been working with groups and individuals inter-           A Bill can be identified by bill number or subject matter and
ested in offering a comprehensive bill on custody which would           easily tracked this way. Bills of interest to the Family Law Sec-
codify existing case law, including Taylor v. Taylor, 306 Md. 290       tion Council, in almost every circumstance, will go before the
(1986) and Montgomery County DSS v. Sanders, 38 Md. App.                judiciary Committee of the House and the Judicial Proceedings
406 (1978). Maryland is one of the very few states that does not        Committee in the Senate. Many legislators help us during the
have the standards for awarding custody codified into a stat-           legislative session, but we especially are grateful to Delegate
ute. Also, in this session there will be several Bills offered in the   Kathleen Dumais, member of the House Judiciary Committee
area of domestic violence, which will address problems that             and Chair of the Family Law Subcommittee of the House Judi-
have been reported in the past. One Bill would provide that it          ciary Committee. Delegate Dumais has been extremely respon-
will be a criminal violation for a defendant to violate a “no con-      sive and receptive to discussions with the Section Council in
tact” provision of a criminal pretrial release contract. Another        attempting to improve family law in Maryland. Interestingly,
Bill would provide that law enforcement may use all reasonable          one of the most important functions of the Legislation Subcom-
and necessary force to return a minor child to a custodial parent       mittee of the Family Law Section Council is to monitor all family
after the award of temporary custody pursuant to a protective           law bills introduced during the legislative session. Many bills
order. Legislation is also being considered which would pro-            that are harmful to the family law practice or are inadvisable for
vide for a temporary protective order in favor of a victim where        a variety of reasons are introduced each session. The Family
the abuser has been arrested. The temporary protective order            Law Section Council works just as hard to stop these bills from
would be automatic and would last under the existing statute            becoming law, as we do to promote bills that will assist our
until a victim could appear in court for a protective order hear-       clients and the practice of family law. It is going to be a busy
ing. Once the Bills have numbers, we will report on their progress      session and we will keep you updated and informed through
in this newsletter. However, because things happen fast in An-          this newsletter.




                                                Website of the Month
                                                                        www.mlis.state.md.us


                                           The Maryland General Assembly homepage…for those who want to know
                                           what our legislators are up to this is the place to be: find that bill hearing
                                           schedule, get your representatives’ contact info, be pro-active!




                                                        DISCLAIMER
           Statements or opinions expressed herein are those of the authors and do not neces-
   sarily reflect those of the Maryland State Bar Association, its officers, Board of Governors,
   the Editorial Board or the Family & Juvenile Law Section Council.
           The FJLSC makes every effort to check the accuracy of the articles submitted, but
   does not warrant accuracy.

January 2008                                                                                       Section of Family & Juvenile Law 3
                            Paving the Way for the Appellate Path
                                               By: Cynthia E. Young, Esquire

I once heard a judge remark at a seminar that after trial has       Another frightening “where in the record is it?” question
ended, the function of the appellate court is to “slay the          frequently arises with regard to transcripts. Often there are
survivors.” If you are anticipating appealing I want to help        discussions and rulings in chambers which may be material
make sure your case is not a “victim.”                              to the outcome of the case. Unless you act, such rulings
                                                                    will not be memorialized, and thus will not be reviewed on
Testimony and court proceedings, preserved through tran-            appeal. Most trial judges, upon return to the courtroom,
scripts, and exhibits, are the focus of appellate review of a       will not object to counsel placing a verbal summary of what
family law case. It is trial counsel’s task to create and protect   happened in chambers on the record.
the record for appeal in order to secure review on the merits.
Here are a few of the problems and solutions which may arise.       This leads to another point concerning transcripts and the
                                                                    record. Rule 8-411 directs the appellant to order a transcript
As counsel for the appellant, you confidently step up to the        of the “testimony” and/or “any proceeding relevant to the
podium to begin your oral argument before the Court of Spe-         appeal.” Clearly, you need to articulate your objections and
cial Appeals and the first question from the panel is, “Can         your requests for relief, and have those portions transcribed
you tell us where in the record we can find a copy of the           for the appeal. If you fail to do so your issues presented
Separation Agreement at issue?” If you cannot direct the            most likely will be unaddressed by the Court of Special Ap-
panel to the relevant pages of the record extract, or even          peals, with the directive that you see Rule 8-131(a).
worse, cannot answer the question at all, you have most
likely already lost your case.                                      If you represent appellant, stipulations under Rule 8-411 to
                                                                    transcribe only portions of testimony and proceedings may
This scenario could have been completely avoided, with              work to your detriment. If you plan to contend that “there is
proper preparation of the record at the trial court level. Many     no evidence to support the trial court’s decision,” you will
times, at the conclusion of trial, the courtroom clerk will re-     need a complete transcript. Also, as a practical matter, it
turn the original exhibits to counsel. If the case proceeds to      may not be possible to reach such a stipulation before the
appeal, it is your obligation to deposit these exhibits with the    time of ordering the transcript will expire.
circuit court appeals clerk prior to transmittal of the record to
the appellate court. Has the record already been sent? File a       All of the above may seem quite basic, yet I have repeatedly
motion to correct the record, in the Court of Special Appeals.      seen these problems arise at oral argument. A poorly devel-
See Rule 8-414. Does opposing counsel refuse to surrender           oped record may even result in the dismissal of the appeal.
exhibits, despite your requests to do so, or have the origi-        If you keep some of these potential pitfalls in mind as you
nals somehow disappeared? Submit a copy of the exhibits to          proceed through circuit court, you will have no reason to
the clerk and explain in the motion where the originals are, or     fear the question “Where is it in the record?”
that they cannot be found.
                                                                    Cynthia E. Young began private practice in Maryland in
But what if the trial court refused to admit the exhibit, and       1978 and has concentrated on appeals, as a solo
your issue on appeal is that the trial court erred in failing to    practitioner, since 1981. She has 53 reported decisions;
do so? At trial, frequently the courtroom clerk will offer the      almost half concern family law.
rejected exhibit back to you. At that point you should re-
quest the clerk retain the exhibit with the record – it can be
marked “not admitted” or so designated on the exhibit sheet.
There is nothing more futile than trying to persuade the Court
of Special Appeals that the exhibit is of critical importance to
your case, and it complied with all of the requirements for
admission, when it is missing from the record.

What should you do with those physical exhibits? Not the
posterboard ones, the actual objects. In a transcript I read
recently, the plaintiff brought to court a fencepost, complete
with cement anchor, and dirt. Understandably, the trial court
refused to accept it into evidence, but counsel was ready
with a photograph, which the court did admit, thereby pre-
serving the record.

4 Section of Family & Juvenile Law                                                                                   January 2008
        Carroll County Domestic/Family Law Case Management
                       Policies and Procedures
                                                     By: Leo Keenan, III
On October 1, 2007, the Circuit Court for Carroll County            ing a Best Interest Attorney; Order Appointing a Child
adopted its new Family Law Differentiated Case Management           Advocate; Order Appointing a Child’s Privilege Attor-
Plan, as approved by the Chief Judge of the Court of Appeals,       ney; Order for Family Study; Order for Substance Abuse
with the stated purpose of providing an effective case man-         Assessment; Order for Psychological Evaluation; Order
agement system to assure: protection of the best interests of       for Monitored Transfer and/or Supervised Visitation; Or-
the children; equal treatment and due process of all litigants;     der for Paternity Testing; Order for Mediation; and Or-
timely disposition; public confidence; access to ADR; and           der for Suit Fees. After the Scheduling Conference, re-
assuring that family law cases are given at least the same          quests for such relief will only be considered for good
priority in assignments, hearings and trials as are criminal and    cause shown that did not exist on the date of the Sched-
non-domestic civil cases. Two specific stated goals of the          uling Conference.
Plan are to assure that: 90% of all cases are concluded within
twelve months of filing; and that children’s access to parents      If no agreement as to pendente lite relief has been reached
is established at the earliest practical time.                      at the Scheduling Conference, at that time the parties
                                                                    will agree to a Master’s hearing date on pendente lite
1. Uncontested Divorces: For uncontested divorces, (which           relief which shall occur within thirty days of the Sched-
are not covered by the Plan) upon the filing of an Answer (or       uling Conference.
an Order of Default), the case file is assigned to a Master, and
a hearing date is scheduled. Previously in Carroll County, un-      At the Scheduling Conference, a Recommended Schedul-
contested divorce hearings were heard in the Master’s law           ing Order will be issued setting forth discovery and filing
office; now all uncontested divorce hearings are held in open       deadlines, together with a Notice of Assignment sched-
court. Masters are now State employees, so there is no longer       uling a Pretrial Conference and a Trial Date.
a separate Master’s fee for uncontested divorces.
                                                                    Additionally at the Scheduling Conference, after consid-
2. Postponements: If a postponement of the scheduled hear-          ering the positions of the parties, the Master will make
ing date is needed, all postponements requests must be in           written recommendation to the Court. If the parties agree
writing, and shall only be granted for “good cause”, including      to the Master’s recommendations each party shall sign a
a trial date conflict, conflicting vacation schedule, or witness    proposed Consent Order which will then be forwarded to
unavailability (proper documentation must be included with          the assigned Judge for a ruling. If any party disagrees
the request). The following are not considered “good cause”:        with any recommendation of the Master, the contested
no previous requests for postponement; request for postpone-        issue(s) and the parties will appear immediately before
ment is agreed upon by the parties; request for postponement        the assigned Judge or, in his or her absence, any avail-
made early in case; outstanding motions or discovery at date        able Judge for hearing and ruling.
of hearing or trial; and change of counsel.
                                                                    The parties may request a waiver of a Scheduling Con-
3. Contested Cases: Upon the filing of a responsive pleading,       ference prior thereto only if all of the following require-
the case file is referred to the Family Law Administration for      ments are met: both parties are represented by counsel;
review and preparation of appropriate educational seminar and/      a written waiver signed by both counsel and has been
or Mediation recommendations and proposed Orders.                   granted by the Court prior to the Scheduling Confer-
                                                                    ence (Joint Waiver form attached); the waiver requests
    a. Scheduling Conference: Within ten days of the filing         assignment to the Expedited or Standard Track; neither
    of the Answer, the Assignment Office will promptly set a        of the parties is requesting an Order as listed above
    Scheduling Conference before a Master, which will be            (such as Best Interest Attorney); the parties have all
    held within thirty days of the filing of the Answer. All        pendente lite issues resolved and have submitted a con-
    parties and attorneys must attend the Scheduling Con-           sent order or have a firm, agreed-upon hearing date with
    ference (no Scheduling Conference is held when an Or-           a Master within thirty days of the Scheduling Order to
    der of Default has been entered, or when a Show Cause           resolve pendente lite issues.
    Order has been entered). At least five days prior to the
    Scheduling Conference, counsel shall consult with one           b. Assignment Tracks: At or prior to the Scheduling Con-
    another and advise which types of relief each intends to        ference, the Court will assign all Family Law cases under
    request. The following relief will be considered by the         this Plan to one of the three following tracks:
    Master at the Scheduling Conference: Order Appoint-
                                                                                                       (continued on page 7)
January 2008                                                                             Section of Family & Juvenile Law 5
             MARK YOUR                                           CALENDARS:
    THE PRINCE GEORGE’S COUNTY BAR                               jmerrill@dalnekoffmason.com. A minimum of one meeting
             ASSOCIATION                                         this year will be held in Glen Burnie and advance notice will
 Family Law Commitee                                             be sent out prior to the meeting. Please note there is no
                                                                 meeting scheduled for December 2007*
 Our section meets on the third Wednesday of each month at
 4:45 p.m. in the Circuit Court Law Library. Each meeting in-    All bar members are welcome at the committee meetings. The
 cludes a Guest Speaker . . . all are welcome. Upcoming topics   meetings are well attended by the Bench and provide an ex-
 include:                                                        cellent opportunity for discourse between the Bar and the
                                                                 Judges and Masters.
 January 16: Master Karen Mason: Master’s Rants
                                                                 2007-2008 Officers
 February 20: Direct Examination of a Party in a Custody Case    Jennifer L. Merrill, Chair
                                                                 Timothy Thurtle, Secretary
 March 19: Cross Examination of a Party in a Custody Case        Erin Darner Gable, Assistant Chair
                                                                 Robert Erdmann, Assistant Secretary
 For Information Contact:
 PGCBA, Family Law Committee                                        HOWARD COUNTY BAR ASSOCIATION
 Co-Chair:                   Co-Chair:                           Family Law Committee
 Justin J. Sasser, Esq.      Elveta M. Martin, Esq.
  301.627.4300               301.322.2711                        January 11: Noon Parenting Coordinators

     ANNE ARUNDEL BAR ASSOCIATION                                February 15: Noon Judge Richard Bernhardt on How to
 Family Law Committee 2007-2008 AGENDA                           Close Your Divorce Case

 January 2008:   Immigration, Passport, & Travel Issues in       March 7: Noon Judge Lenore Gelfman on Tips for Filing
 Family Law Cases                                                and Arguing Exceptions

 February 2008:    Children’s Counsel: The New Rules             Meetings are held on the second Friday of the month in the
                                                                 jury assembly room of the Howard County Circuit Court.
 March 2008: CLE: Marital Property Seminar – Part II             Lunch is available for $6.50 with prior RSVP. RSVPs should
                                                                 be sent to HCFLC@agclaw.com.
 Presentation by the Honorable Michael Loney in conjunc-
 tion with Barbara Taylor, Esquire. Factor analysis and its      Master Mary Kramer
 impact on the distribution of marital property. *Date to be     Circuit Court Howard County
 announced                                                       410-313-4857
                                                                 mary.kramer@courts.state.md.us
 April 2008: Bankruptcy Issues in Family Law Matters
                                                                         Baltimore County Bar Association
 May 2008: Issue Roundup: Contempt (When it is useful &          Family Law Committee
 effective); Granting an award of attorney fees (When it is
 appropriate); Legislative & Case law update.                    January 17, 2008, there will be a brown bag luncheon for
                                                                 the Kaufman alimony guidelines at 12 noon in the Grand
 June 2008: End of year social meeting at Galway Bay and         Jury Room of the Circuit Court for Baltimore County. Tracy
 election of officers for 2008-2009 committee year.              Brown of the Women’s Law Center and Craig Little, Esq.
                                                                 will be the presenters.The cost is free for Baltimore County
 *Unless otherwise noted, all meetings will be held on the       Bar Association members and $15 for non-
 third Tuesday of each month at 5:00 p.m. in the Attorney’s      members. Beverages and dessert will be provided. Please
 Lounge at the Circuit Court. Email reminders for each
 meeting will be sent out monthly. To be added to the
 email list, please send your email address to                                                       (continued on page 10)



6 Section of Family & Juvenile Law                                                                                 January 2008
Carroll County...
(Continued from page 5)

        i. Domestic Expedited Track: This occurs normally                ment is reached, the agreement will be placed on the record
        where the contested complaint does not contain a                 and incorporated into a Temporary Order. A status review
        request for pendente lite relief involving custody, visi-        hearing will be set for thirty days thereafter to ensure that
        tation, support or use and possession of property,               a final Consent Order has been filed with the Court. The
        and contested marital property issues are simple. The            Court may also take uncontested divorce testimony at
        date for trial is approximately ninety days after the            that time if the matter is ripe.
        Scheduling Conference.
                                                                         If an agreement is not reached on any or all of the issues,
        ii. Domestic Standard Track: This includes the major-            an additional Pretrial Conference may be scheduled if
        ity of cases, generally those that do not fall under             would be helpful in resolving the matter. The additional
        the Expedited or Extended Track.. The date for the               conference will not postpone the trial date.
        trial is the later of approximately one hundred fifty
        days after the Scheduling Conference, or sixty days              d. Hearings and Trials: If practical, hearings and trials will
        after the earliest date that any party will be entitled to       proceed on consecutive days until completed, except in
        an absolute divorce. A Pretrial Conference will also             situations of inaccurate time estimates. No evidence shall
        be scheduled approximately sixty days prior to trial.            be received in proffer unless all parties fully agree to its
                                                                         introduction by proffer.
        iii. Domestic Extended Track: Cases assigned on this
        track will generally be set at the Scheduling Confer-            e. Mediation: Mediation is ordered where there are cus-
        ence, as it will involve a very small portion of the             tody and/or visitation issues, and no substantial allega-
        domestic cases. The trial date in this track is ap-              tion of physical or sexual abuse. Also both parties must
        proximately five hundred days after the Scheduling               be living within a reasonable distance from Westminster.
        Conference, with a Pretrial Conference sixty days
        prior to trial.                                                  In such circumstances, the parties will be required to par-
                                                                         ticipate in good faith for up to two 2-hour sessions. The
        iv. Miscellaneous: Please note that the filing of an             parties can agree to have more sessions. Attorneys do
        Amended Complaint, Supplemental Complaint,                       not attend mediation with their clients. If the parties agree
        Counter-Complaint, Cross-Claim, Third-Party Claim                on some or all issues, the mediator will prepare a pro-
        and/or the joinder of additional parties shall not               posed Consent Order for unrepresented parties and/or
        change a Scheduling Order, except upon motion and                the only issues are custody/visitation, or a Memorandum
        for good cause shown. Additionally, every Schedul-               of Points of Agreement if it covers more issues than cus-
        ing Order issued shall be issued with a Notice of As-            tody/visitation and at least one of the parties is repre-
        signment setting forth the trial date and, if applicable,        sented. The fully executed agreement must be returned to
        a Pretrial Conference date.                                      the Court by the mediator or one of the attorney/self-
                                                                         represented parties.
    c. Pretrial Conferences: A Pretrial Conference is a non-
    binding effort to facilitate a resolution of the case, and       4. Ex Parte Orders: Generally, all motions for ex parte relief
    will be conducted by a Settlement Officer appointed by           shall follow the rules for ex parte hearings, including the affi-
    the Court. All attorneys and parties are required to at-         davit requirement of Rule 1-304, and the notice requirement of
    tend. All discovery must be completed prior thereto.             Rule 1-351(b). Motion for ex parte relief must be filed in writ-
                                                                     ing, with a proposed order, and will be reviewed by the Family
    Five days prior to the Pretrial Conference, the following        Law Administrator and the Law Clerk of the Judge assigned to
    documents must be filed with the Court, with copies to           the case, to determine whether they meet the notice require-
    the assigned Settlement Officer and opposing counsel/            ments, as well as the standards for ex parte relief.
    unrepresented party: a statement addressing matters set
    forth in Maryland Rule 2-504.2(b); Joint Statement of Prop-      A motion for ex parte relief will be denied unless there is suffi-
    erty; current Financial Statement; income information and        cient showing:
    documentation verifying that income; and child support
    guidelines worksheet, if applicable.                                 a. Of an imminent risk of immediate physical harm to a
                                                                         party or minor child;
    The Settlement Officer will meet with parties and the at-
    torneys to attempt to facilitate a settlement. If an agree-                                               (continued on page 8)


January 2008                                                                                   Section of Family & Juvenile Law 7
Carroll County...
(Continued from page 7)
    b. That a prejudicial relocation of a minor child from a       Judges:
    stable environment has occurred;
    c. That a serious and continuing breach of an existing         Michael M. Galloway, Administrative Judge       410-386-2650
    order for custody or visitation has taken place; or            J. Barry Hughes, Associate Judge                410-386-2616
                                                                   Thomas F. Stansfield, Associate Judge           410-386-2092
    d. Of a serious and continuing denial of access to a child.
                                                                   Juvenile and Standing Masters:
Motions for the immediate payment of child support and/or
alimony do not meet the standard for ex parte relief.              Peter M. Tabatsko                               410-386-2652
                                                                   Kathryn Brewer Poole                            410-386-2380
5. Constructive Civil Contempt Petitions and Show Cause
Orders: The Circuit Court follows the rules set out for civil      Standing Equity Masters
contempt filings in Maryland Rule 15-206. Hearings are sched-
uled on the filing of a contempt petition and show cause order.    John S. Constantinides                          410-386-2595
The hearing date is to be within sixty days of the filing of the   Ralph T. Uebersax                               410-386-2595
petition. Petitions must expressly state whether or not incar-
ceration is sought and must comply with Rule 15-206(c).            Family Law Administration                       410-386-2751

With the implementation of the new Case Management Plan,           Administrator, Powel Welliver                   410-386-2401
family law cases in Carroll County will no longer take two         Custody Evaluator, Gloria Barr                  410-386-2401
years or more to finalize. The onus is on the attorneys to         Mediation Coordinator, Isadora Cipolletta       410-386-2736
actively manage their case load, as well as the judges to issue    Domestic Violence Services Coordinator          410-386-2440
their opinions within the twelve month timeframe. Special          Visitation Services Coordinator                 410-386-2935
thanks go to the Judges, Masters, Settlement Conference Co-
ordinator, Court Administrator, Family Law Administrator, Clerk    If you are counsel in an upcoming domestic violence hearing
of the Court, and the Family Law Committee of the Carroll          for either party, the Family Law Administration requests that
County Bar Association for their work on the Plan.                 you advise them of your involvement in the case prior to the
                                                                   final hearing, in an effort to put counsel in touch with each
Courthouse located at:                                             other prior to the hearing, rather than waiting until the morn-
55 North Court Street                                              ing of the hearing. You can reach Ms. Welliver at
Westminster, Maryland 21157.                                       pwelliver@ccg.carr.org

There is both a Courthouse Annex (55 North Court Street),
which contains most of the courtrooms, as well as the file
rooms and most of the court offices. Across the street is the      Leo J. Keenan, III is an attorney in Carroll County special-
Historic Courthouse, which contains the Masters courtrooms,        izing in family law, and is a Councilman on the Sykesville
and the ceremonial courtroom.                                      Town Council.




8 Section of Family & Juvenile Law                                                                                   January 2008
                                 New Health Care Cost Provisions
                                                       By: Kevin L. Beard
On October 1, 2007, Chapter 36, Acts of 2007 (House Bill 265)        greater. Without any health insurance cost, the basic child
went into effect. House Bill 265 was developed by the Family &       support would be $560.30. Under the old provision, the child
Juvenile Law Section Council of the MSBA and                                    support would be $507.44. A reduction of 9.5%.
sponsored by Delegate Kathleen Dumais. The                                      Under the new provision, child support would be
premise of the bill is that when you are calculating                            $460.31. A reduction of 17.9%.
child support, the cost of health insurance cover-
age for a child must be divided by the parents in                               The difference is even more significant when the
proportion to their adjusted actual incomes. Yes,                               parties incomes are equal. Assume that each party
this is a change from current practice.                                         makes $48,000.00 and that all other factors are the
                                                                                same. In a sole custody calculation, the Father,
Section 12-204 (h) of the Family Law Article                                    without any health insurance, would pay $720.50
now states:                                                                     per month in child support. Deducting the cost of
        Any actual cost of providing health insur-                              health insurance from his actual income (“above
        ance coverage for a child for whom the                                  the line”), would require him to pay $678.47, per
        parents are jointly and severally respon-                               month in child support. A 5.9% reduction. Under
        sible shall be added to the basic child sup-                            the new provision (“below the line”), he would
        port obligation and shall be divided by the                             pay $570.50 per month in child support which is a
        parents in proportion to their adjusted actual incomes.      20.9% reduction and a difference of 15%.

 Basically, health insurance coverage for a child, or children, is   In a shared custody situation, the child support, without health
now a “below the line” expense to be divided proportionally by       insurance, would be $310.83 per month. Deducting the health
the parents. Prior to the enactment of House Bill 265, the cost      insurance from the Father’s income, (“above the line”), Father
of providing health insurance coverage for a minor child, or         would pay $263.27 per month in child support. A 15.4% reduc-
children, was an “above the line” adjustment to the actual in-       tion. Under the new statute, Father’s child support would be
come of the parent that actually paid the premium.                   $160.83, per month which would be a 48.3% reduction. A differ-
                                                                     ence of 32.9%.
Moving the cost of health insurance coverage to “below the
line” is a significant change to the calculation of child support.   The passage of House Bill 265 has also increased the situations
The cost of health insurance is now treated the same as the          where a custodial parent could be required to pay the non-
cost of work related child care expenses, extraordinary medical      custodial parent support. In this situation the non-custodial
expenses and the additional expenses as set forth in Section         parent would be providing the health insurance coverage. For
12-204 (i) when one calculates child support.                        example, if the Mother is the custodial parent and earns
                                                                     $75,000.00 per year and the Father earns $20,000.00 per year,
For example, assume that Mother’s income is $24,000.00 per           and if the actual cost of health insurance for the children which
year and Father’s income is $48,000.00 per year. The parties         is being provided by the Father is $400.00 per month, then the
have two children that reside primarily with the Mother and the      recommended support would be for the custodial parent,
Father has only 100 overnight visitations with the children.         Mother, to pay the non-custodial parent, Father $13.52.
The cost of health insurance is $300.00 per month which is paid      Whereas, this writer recognizes that this would be a unusual
by the Father. Without the cost of health insurance in the           situation, it is a situation that can more readily occur due to the
calculation of support, Father would be paying the Mother            passage of House Bill 265.
$802.05 per month for child support. Prior to House Bill 265, if
one deducted the cost of health insurance from Father’s in-          As you can see, the sharing of health insurance on a propor-
come (“above the line”), he would pay $749.71 per month for          tional basis significantly effects the amount of child support to
child support. A reduction of 6.6%. Under the new provision          be paid. Given the numerous non-traditionional family dynam-
(“below the line”), the Father will now pay $702.05 for child        ics that exist today (remarriage with stepchildren, split custody,
support. The Father is getting a $100.00 credit towards his          etc.), it is imperative that we, as practitioners, attempt to obtain
child support as $100.00 is one-third of the cost of the health      and ascertain the exact cost of health insurance coverage for
insurance which is the Mother’s proportionate share of the           the child(ren) due to the impact on the amount of child supportto
health insurance cost for the child. Father’s support obligation     be paid and the amount of child support to be received by our
is now reduced by 12.5%.                                             respective clients. In order to determine the “actual cost” of

Using the same facts, but now having a shared custody situa-
tion where the Father has 130 overnights, the reduction is even                                               (continued on page 11)
January 2008                                                                                    Section of Family & Juvenile Law 9
Mark your Calendars...
(continued from page 6)

contact Doris Barnes at 410-337-9103 or e-mail her at              January 24th: Children Held Hostage: Parental Alienation
doris@bcba.org to register.
                                                                   February 21st: Divorce Merits (Ricketts and Tracing Non-
January 30, 2008, there will be a brown bag luncheon for           Marital Funds)
deeds of transfer incident to divorce at 12 noon in the Grand
Jury Room of the Circuit Court for Baltimore County. Doug          March 20th: Wine & Cheese honoring Judge Sundt’s retirement
Burgess, Esq. will be the presenter. The cost is free for Balti-
more County Bar Association members and $15 for non-               April 17th: Post-Judgment/Financial Planning
members. Beverages and dessert will be provided. Please con-
tact Doris Barnes at 410-337-9103 or e-mail her at                 May 2nd: Law Day: Domestic Partnership Agreements
doris@bcba.org to register.
                                                                   SPRING CLE PROGRAMS
February 27, 2008, there will be a dinner at the Towson Golf
and Country Club featuring a skit on Best Interest Attor-          Breakfast CLE’s are held at 7:45 a.m. and evening CLE’s
neys with Judge Plitt of Harford County and Judge Martin           are held at 5:30 p.m. in the Bar CLE Classroom.
of Baltimore County, Chris Nicholson, Esq., Ferrier Stillman,
Esq. and Rebecca Fleming, Esq. with a cash bar at 6 p.m.           January 31st: Breakfast: PL Hearing (Master Ryon)
and dinner at 6:45 p.m. The cost is $40.00. Please contact
Doris Barnes at 410-337-9103 or e-mail her at                      March 27th: Breakfast: Financial Statements/9-207 (Mas-
doris@bcba.org to register.                                        ter Salant)

Kristine K. Howanski, Esquire                                      April 9th: Evening: Trial of a Domestic Violence Case
Law Offices of Kristine K. Howanski, LLC
401 Washington Avenue, Suite 803                                   Section Co-Chairs:
Towson, Maryland 21204
(O) (410) 296-8166, ext. 102                                       Vicki Viramontes-LaFree, Esquire
(F) (410) 296-4527                                                 Pasternak & Fidis, PC
                                                                   7735 Old Georgetown Road, Suite 1100
                                                                   Bethesda, Maryland 20814-6183
          MONTGOMERY COUNTY BAR                                    Tel (301) 656-8850; Fax (301) 656-3053
                                                                   vlafree@pasternakfidis.com
               ASSOCIATION
Family Law Section
                                                                   Stuart Muntzing Skok, Esquire
SECTION MEETINGS & PROGRAMS                                        Gimmel, Weiman, Ersek, Blomberg & Skok, P.A.
                                                                   4 Professional Drive, Suite 145
         Regular Section meetings are held on the third (3rd)      Gaithersburg, Maryland 20879
Thursday of the month at 5:30 p.m. in the Bar CLE Classroom        Tel (301) 840-8565; Fax (301) 590-9784
unless otherwise indicated.                                        sskok@gweblaw.com




10 Section of Family & Juvenile Law                                                                                   January 2008
       December:
                                   Birthdays
       Edward Bunker: Mr. Blue in Tarantino’s crime drama Reservoir Dogs : “I like her early
       stuff. You know, “Lucky Star”, “Borderline”-but once she got into her “Papa Don’t
       Preach” phase, I don’t know, I tuned out”. Actually, he wasn’t acting: Edward Bunker
       was the youngest convict ever sent to San Quentin, he later wrote the novel No Beast So
       Fierce and the film Runaway Train. Quite a turnaround, and an impressive artist…

       Francis Bacon: Legal Scholar, Scientist, Politician: “Law must acknowledge the facts,
       but law must also act for the betterment of mankind.” As Lord Chancellor he was the
       highest legal officer in England; as a scientist he settled the long-running debate as to
       the number of teeth in a horse’s mouth…by looking in a horse’s mouth.

       Douglas A. Preston: Noted member of the Wyoming Bar, he represented Butch Cassidy
       on several horse-theft charges in the 1880’s, later attempted to negotiate an
       amnesty…don’t think I saw him in the movie.

       January:

       Charles Nelson Reilly: Tony Award-winning actor for How to Succeed in Business Without
       Really Trying, but aging boomers know him as Mr. Gregg from The Ghost and Mrs. Muir.




       New Health Care ..
       (Continued from page 9)
the health insurance for the children, one should obtain from      UPDATE: On December 4, 2007, The Court of Appeals of
the employer, or health insurance provider, the cost of health     Maryland’s Standing Committee on Rules of Practice and Pro-
insurance for individual member coverage, parent and child         cedure adopted amendments to Maryland Rule 9-206 regarding
coverage, and family coverage. Many practitioners believe that     the Child Support Guidelines in accordance with the statutory
you should simply deduct the cost of the individual coverage       changes of House Bill 265. The changes can be found at http:/
premium from the cost of the family coverage premium, or           /www.courts.state.md.us/rules/ruleschanges.html.
parent and child coverage premium to arrive at the “actual”
cost of health insurance for the child. Other practitioners        Kevin L. Beard, Esquire, is a member of the Family & Juvenile
argue that the “actual” cost is the cost of the family coverage    Law Section Council and practices in Catonsville, Maryland.
itself without any deduction for the individual coverage pre-
mium. There is no current Maryland case law addressing this
issue or how to handle the non-traditional family situations. At
this point in time, we must use our individual methods of nego-
tiation and persuasion to reach the “correct” answer when dis-
cussing the issue with opposing counsel, or when stating one’s
position to the trier of fact.



January 2008                                                                               Section of Family & Juvenile Law 11
                  Beverly Groner Family Law Award
               The Family Law Section Council of the Maryland State Bar Association announces
               the opening of nominations for the sixth annual Beverly Groner Family Law Award.
               The Award will be presented at the MSBA Annual Convention in Ocean City, Mary-
               land in June, 2008.
               The Award recognizes:
               An Attorney who has served the Maryland legal community through his or her dedica-
               tion to the practice of family law, exemplifying the highest professional standards dur-
               ing a distinguished career.

                                               PRIOR RECIPIENTS:

               The Honorable Kathleen O’Ferrall Friedman The Honorable John F. Fader II
               Senator Sharon Grosfeld                   The Honorable Julia Weatherly
               The Honorable Ann Sundt                   Roger A. Perkins, Esquire


                       The Beverly Groner Family Law Award was created to provide a vehicle for
               highlighting the importance of family law to our community, and to celebrate those who
               improve family law practice in our state. It is named in honor of the late Beverly Ann
               Groner, the Maryland family law practitioner whose long, distinguished career fea-
               tured chairing the state commission which researched and drafted the present Marital
               Property Act and Alimony law.
                                        Please send your nomination form on Page 13 to:

                                      Beverly Groner Family Law Award Committee
                                               c/o Justin J. Sasser, Esquire
                                                         Box 130
                                            Upper Marlboro, Maryland 20772
                                      jsasser@chesapeake.net or Fax: 301.627.9084




12 Section of Family & Juvenile Law                                                                       January 2008
               Uniform Collaborative Law Statute Being Drafted
                                                 By: Mary S. Pence


Collaborative Law will receive a boost around the country when a uniform statute being promulgated by the National
Conference of Commissioners on Uniform State Laws (“NCCUSL”) is sent to the states for enactment. NCCUSL is
the same body which drafted the UCCJA and the UCCJEA, as well as the Uniform Mediation Act and the Uniform
Arbitration Act.

The NCCUSL Drafting Committee for a Uniform Collaborative Law Act (“UCLA”) has met twice, and will meet again
in the spring of 2008. The UCLA will have a first reading on the floor of the Conference in July of 2008, and a final
reading in July of 2009, at which time, if approved, it will be sent to the states for enactment.

The UCLA in its present draft form requires that the parties and counsel sign a written agreement committing counsel
to both parties to withdraw if the collaborative case is unsuccessful and the matter heads into litigation.* It also, inter
alia, creates a privilege for a “Collaborative Law Communication,” and exempts collaborative law cases from judicial
case management. The text of the draft UCLA may be reviewed at law.hofstra.edu/ucla.

Mary S. Pence is a family law practitioner and collaborative law attorney in Montgomery County, Maryland and in
the District of Columbia, and is an Observor to the work of the NCCUSL Drafting Committee for a Uniform
Collaborative Law Act.

* Although the advisory Colorado Ethics Opinion 115 adopted February 24, 2006 concluded that it is unethical
for a collaborative law attorney to enter into an agreement with the opposing party requiring the attorney
to withdraw in the event that the process is unsuccessful, the ABA’s Standing Committee on Ethics and
Professional Responsibility has issued Formal Opinion 07-447, dated August 9, 2007, which squarely
disagrees with the Colorado ethics opinion. The ABA opinion holds that the four-way agreement between
parties and counsel is a permissible limited scope representation provided that the limitation is reasonable
and the client provides informed consent to participation in the collaborative law process.



                    Beverly Groner Family Law Award
     Name of Nominee: _______________________________________________________________________

     Address of Nominee: _____________________________________________________________________

                            ______________________________________________________________________

     Name of person making nomination: __________________________________________________________

     Telephone/Email _________________________________________________________________________

     Address:_______________________________________________________________________________

     ______________________________________________________________________________________

     Signature: _____________________________________________________________________________




January 2008                                                                           Section of Family & Juvenile Law 13
  Tax Free Transfer of IRA to Divide Marital Property Revisited:
  Separation Agreement Must Be Incident To Decree of Divorce
                                                         By:Marcia C. Fidis
Individual Retirement Accounts, some of which are of quite             tenance of the other spouse”, IRC § 71(b)(2)(C). Significantly,
substantial value, are marital property to the extent acquired         the Section 408, authorizing the nontaxable transfer of an IRA,
during the marriage. Accordingly, they are subject to equitable        specifically refers only to subparagraph (A) of paragraph
distribution at divorce. Generally, it will be in the best interests   71(b)(2) (“written instrument incident to such a decree”). The
of the account owner that he or she incur no tax liability as a        statute does not refer to subparagraph (B) (“a written separa-
result of a transfer to carry out a property division and that the     tion agreement”) or subparagraph (C) (“a decree other than
transferee spouse receive the future tax liability for the portion     the one described in (A) requiring a spouse to make payments
of the account that will go to him or her. When the spouse             for support or maintenance of the other spouse”) which are
receives the transfer into his or her own IRA, the assets will         the other two subparagraphs of Section 71(b)(2). Thus, the
continue to grow tax-deferred until the spouse is ready to retire.     plain meaning of Section 408(d)(6) appears to preclude a non-
This is generally the result parties intend. The Internal Rev-         taxable IRA transfer based merely on a separation agreement
enue Code dictates the tax consequences of a transfer of some          that is not incident to a decree.
or all of an IRA from the account owner to the spouse to carry
out a division of marital property as part of a divorce.1 This         What Is an Agreement “Incident to Decree of Divorce?”
article addresses how to carry out such a transfer to obtain the
correct tax consequences.                                              Agreement Incorporated in Judgment of Divorce

Basic Rule for IRA Transfer as Part of Marital Prop-                   A marital settlement agreement that has been incorporated in a
erty Settlement                                                        judgment of divorce is a “written instrument incident to such a
                                                                       decree” under IRC § 71(b)(2)(A). Therefore, upon entry of the
IRC § 408 (Individual Retirement Accounts) governs the trans-          judgment, the IRA owner can direct the financial institution to
fer of an interest in an IRA between spouses to carry out a            carry out the IRA transfer to the spouse’s IRA. Under IRC §
marital property division or to provide support for a spouse.          408(d)(6), the transfer will be nontaxable.

In order for the transfer of an IRA from one spouse to the other       Status of Agreement Before Entry of Judgment of Divorce
to be nontaxable, Section 408(d)(6) requires that the transfer be
under “a decree of divorce or separate maintenance or a written        Can an IRA be transferred tax free prior to divorce? The answer
instrument incident to such a decree.”2 Specifically, Section          turns on whether a separation agreement can be considered
408(d)(6) provides:                                                    incident to divorce (or incident to a decree) before the divorce
                                                                       actually occurs.3 It seems clear from the plain language of the
         The transfer of an individual’s interest in an                statute and the regulations that a separation agreement that is
         individual retirement account . . . to his                    not “incident” to a decree of divorce is not sufficient to make
         spouse or former spouse under a divorce or                    the IRA transfer nontaxable.4 Section 408, and the regulations
         separation instrument described in subpara-                   under Section 408, offer no specific guidance on the question
         graph (A) of section 71(b)(2) is not to be con-               of the timing of the transfer.
         sidered a taxable transfer made by such indi-
         vidual . . . and such interest at the time of the                      IRC § 1041 governs the nontaxable transfer of other
         transfer is to be treated as an individual re-                types of assets (but not IRA accounts). 5 A transfer under this
         tirement account of such spouse . . . .                       section is incident to divorce if the transfer is “related to the
                                                                       cessation of the marriage.”6 However, it is difficult to rely on
IRC § 408(d)(6) (emphasis added).                                      Section 1041 for guidance to the application of Section 408 to
                                                                       IRA transfers for two reasons. First, regulations under IRC §
What Is a Divorce or Separation Instrument?                            1041 define the required instrument to include both a decree of
                                                                       divorce or separate maintenance or a written instrument incident
Section 71(b)(2) defines the term “divorce or separation in-           to such a decree, IRC § 71 (b)(2)(A), and a written separation
strument” as “a decree of divorce or separate maintenance or           agreement, IRC § Section 71(b)(2)(B). Section 408, on the other
a written instrument incident to such a decree,” IRC §                 hand, specifically refers only to Subparagraph (A) (decree of
71(b)(2)(A), or “a written separation agreement” IRC §                 divorce or separate maintenance or written instrument incident
71(b)(2)(B), or “a decree (not described in subparagraph (A))          to such a decree).
requiring a spouse to make payments for the support or main-                                                   (continued on page 15)


14 Section of Family & Juvenile Law                                                                                       January 2008
Tax Free Transfer...
(Continued from page 14)

Second, all outright transfers of Section 1041 property before      deny the parties the favorable tax treatment afforded transfer of
divorce are nontaxable for income tax purposes. By contrast,        an IRA incident to a decree.
Section 408 refers to a more limited group of transfers by
referencing only subparagraph (A) of section 71(b)(2) and not       Tax Consequences of Nontaxable Transfer.
subparagraph (B). Therefore Section 1041 doesn’t provide any
clear guidance that can be applied to transfers of IRAs before      What are the tax consequences to the parties if nontaxable
the end of the marriage.7                                           treatment is not available for the IRA transfer? The IRA trans-
                                                                    fer will be treated as a distribution to the IRA owner who will
                                                                    have to report the amount transferred as taxable income and
Uncertainties and Risks in Pre-Divorce IRA Transfer                 pay taxes.10 Moreover, if the IRA owner is under age 59 and a
                                                                    half, there may be penalties on the amount withdrawn.11 Fur-
Until the IRS provides more specific guidance, the determina-       ther, the transferee spouse will receive the entire proceeds free
tion of whether a marital settlement agreement is “incident to      of tax but will not be entitled to transfer the proceeds to an IRA
the decree” for purposes of a pre-divorce transfer of an IRA        in his/her own name, thus losing the benefit of tax deferred
under Section 408(d)(6) is likely to be one of facts and circum-    growth. If the transferee spouse does receive the transfer di-
stances.8 Any time a determination of tax liability is based on     rectly into his/her own IRA, and fails to withdraw the taxable
facts and circumstances, there is a risk the determination could    amount prior to the due date of the tax return for the year of the
go against the taxpayer. If the transfer of an IRA to a former      transfer, the transferee spouse’s IRA account will be subject to
spouse occurs after a written separation agreement that pro-        penalties for “excess contributions” to an IRA for each taxable
vides for the transfer and before a divorce decree, and the par-    year that the excess contribution remains in the account.12
ties do subsequently divorce within a year or two, then the IRS
should deem the separation agreement to be incident to a de-        Can Parties to a Marital Settlement Agreement Carry Out an
cree so that the transfer is nontaxable. However, there is less     IRA Transfer Before Entry of a Judgment of Divorce.
certainty in the following scenarios.
                                                                    A number of readers requested clarification of the premise of an
         1) What if the parties execute a separation agreement      article in a prior issue of this newsletter entitled “Can You Get
         but never intend to divorce? It seems hard to argue        Your Client A Piece of That IRA before Final Divorce?” The
         that the transfer of an IRA pursuant to an agreement       thrust of the article is that under the applicable statute, IRC §
         where there will be no divorce meets the requirement       408(d)(6), a spouse may make a nontaxable transfer of an IRA to
         of being incident to a decree. In fact, the IRS has held   the other spouse after a separation agreement is signed and
         that where the facts and circumstances show that a         before the divorce occurs. That may be correct in some circum-
         divorce is not contemplated, the transfer of an IRA is     stances, but the limitations and risks discussed above should
         taxable even though the parties had executed a sepa-       be considered.
         ration agreement.
                                                                    Because of the significant adverse tax consequences if the trans-
         2) What if the parties execute a separation agree-         fer is taxable, the parties may wish to avoid the risk, however
         ment intending to divorce, transfer the IRA from one       small, by postponing the transfer until after divorce. If the trans-
         spouse to the other and then one party dies or the         feree spouse intends to keep the IRA tax deferred anyway, there
         parties reconcile before divorce? Can the separa-          is less reason for an immediate transfer. If the spouse who is to
         tion agreement meet the requirement that it be “inci-      receive the IRA really needs to withdraw and use the funds
         dent to a decree” if the parties intended to divorce       prior to divorce, there is an alternative. The separation agree-
         but did not?                                               ment could provide that the IRA owner will withdraw the funds,
                                                                    pay the taxes, plus any premature withdrawal penalty, and make
         3) What if the parties execute a separation agree-         a nontaxable transfer of the net proceeds to the transferee
         ment intending to divorce, but years pass and there        spouse. The tax consequences of this transaction are known
         is no divorce?                                             and avoid the uncertainty of a pre-divorce transfer of an IRA.

There have been no IRS rulings or court decisions that answer       Unless and until the IRS clarifies the uncertainties discussed
the questions in (2) and (3). As a result, a party who transfers    above, attorneys should advise clients of the risks inherent in
an IRA after signing a separation agreement but before a di-        transferring an IRA before divorce.
vorce decree takes a risk that a reconciliation or death before
divorce, or that an unintended delay in obtaining a divorce, will                                            (continued on page 16)


January 2008                                                                                   Section of Family & Juvenile Law 15
Tax Free Transfer...
(Continued from page 15)

How To Avoid Adverse Tax Consequences in Transfer of                be a divorce decree or a written instrument “incident to a decree
An IRA                                                              of divorce”. All section references in this article refer to the
                                                                    Internal Revenue Code of 1986 as amended.
         ·    Include specific language in the separation           2
                                                                      See IRC § 408(d)(6) referring to IRC § 71(b)(2)(A).
              agreement or divorce decree: W will transfer fifty    3
                                                                      For purposes of this article, “incident to divorce” and “incident
              percent of her —————(name of institution)             to a decree” are used interchangeably. See, Treas.Reg. § 1.408-
              IRA Account # ___________ to H in a trustee to        4(g)(1) (The transfer of an individual’s interest in an IRA to
              trustee IRA transfer which the parties intend to      former spouse “under a valid divorce decree or a written
              be a nontaxable transfer under IRC § 408. For         instrument incident to such divorce” is nontaxable).
              purposes of this transfer, the account shall be       4
                                                                      The IRS has so concluded in PLR 9344027 (August 9, 1993).
              valued as of _______________ and H’s share            Also, see Technical Advice Memorandum 199935055 (July 6,
              of the account shall include earnings and losses      1999). Written determinations (including private letter rulings
              on such amount from the valuation date until          and technical advice memoranda) cannot be cited as precedent
              the transfer to an IRA in H’s name.                   (IRC § 6110(k)) but indicate the IRS positions on tax issues.
         ·    The divorce decree should contain language            5
                                                                       IRC § 1041 does not apply to transfer of IRAs. PLR 9422060
              requiring the transfer or the decree should           (March 14, 1994).
              incorporate the separation agreement requiring        6
                                                                      IRC § 1041(c); Treas. Reg. § 1.1041-1T Q&A 6.
              the transfer.                                         7
                                                                       IRC § 2516 in the estate and gift tax subtitle of the Internal
         ·    The transferee spouse, should open a new IRA          Revenue Code provides that an agreement executed within
              account, or identify an existing IRA, to receive      a three year window beginning two years before divorce
              the transferred IRA and provide this information      and concluding one year after divorce will cause a property
              to the other spouse.                                  transfer between spouses or former spouses to be deemed
         ·    After divorce, the IRA account owner should           for full and adequate consideration and not a taxable gift.
              provide a copy of the written instrument and/or       The purpose of this gift tax section is to make certain that
              the divorce decree to the financial institution       an agreement to transfer property between spouses or
              maintaining the IRA and request the transfer,         former spouses is actually related to divorce and thus
              providing the name of the institution and             presumably obtained through arms-length bargaining and
              account number that will receive the IRA transfer     not a gift. By analogy, it could be argued that a separation
              as well as the transferee spouse’s name and social    agreement executed no more than two years before divorce
              security number.                                      should be “incident to divorce” if the divorce actually
                                                                    occurs. Even here the parallel is not without question since
Marcia Fidis is a partner in the Bethesda law firm, Pasternak       Section 2516 is an estate and gift tax section, not an income
& Fidis, P.C. She has practiced in the area of estate plan-         tax section as is Section 408 which governs transfers of
ning and divorce taxation for over thirty years. She received       IRAs. At least one court has held that the income and gift
her J.D. degree from the Washington College of Law, the             tax rules of the Internal Revenue Code are not to be
American University in 1976, and her LLM in Taxation from           construed in pari materia. The court held that gift tax
the Georgetown University Law Center in 1985. She has               limitations should not be imported into the income tax rules
lectured frequently on the subject of divorce taxation. For         without an act of Congress.
over twenty years she has been a part of the faculty of the         Farid-Es-Sultaneh           v.
Divorce Tax Workshop sponsored by MICPEL, and presented             Commissioner, 160 F.2d
every 3 to 5 years.                                                 812(2d Cir. 1947).
                                                                    8
                                                                      See n.5 above.
The author wishes to thank her partners, Linda J. Ravdin and        9
                                                                      See n. 5 above.
Anne Walker (Jan) White for their contributions to this article     10
                                                                       IRC § 408(d)(1)
from a family law attorney’s perspective.                           11
                                                                        IRC § 72(t) imposes a
                                                                    10% penalty on amounts
Footnotes                                                           distributed before age
1
  IRC § 408(d)(6). An IRA transfer could also be used to meet a     591/2       unless        the
support obligation - not just a division of marital property - so   distribution falls within
long as the transfer meets the requirements of this section,        listed certain exceptions.
including that the instrument requiring the transfer for support    12
                                                                       IRC § 4973; IRC § 408(d)(4)


16 Section of Family & Juvenile Law                                                                                      January 2008
                     Collaborative Practice Grows Far and Wide!!!
                                                        By: Darcey Shoop
Now that the ABA Ethics Committee settled the issue of             Howard County Collaborative Professionals (HCCP)
whether Collaborative Practice is ethical with a resounding        www.hococollaborativeprofessionals.com
“YES,” more and more legal, mental health and financial pro-       Practice Group – Howard County and surrounding areas – 40
fessionals are becoming collaboratively trained. The number        members*
of trainings is on the rise and each training ends up full to      Contact Person:
capacity. Collaborative professionals in Maryland, the Dis-        Jolie G. Weinberg, Esquire – jgw@wssfamilylaw.com
trict of Columbia and Virginia have united in an effort to pro-    (410) 997-0203
mote greater public awareness of Collaborative Practice as a
viable means of resolving disputes. The National Conference        Maryland Collaborative Law Association (MCLA)
of Commissioners on Uniform State Laws is working on a uni-        Practice Group - Baltimore and surrounding area – 39 members*
form Collaborative Law statute. Collaborative Practice has         www.marylandcollaborativelawassociation.com
reached critical mass in the larger Maryland counties and is       Contact Person:
expanding its reach into other jurisdictions.                      Nancy L. Weller nlw@nancyweller.com, (410) 263-3660

Talk to any Collaborative Professional to learn more about how     Collaborative Professionals of Southern Maryland
you can join us!                                                   Practice Group - Prince George’s, Charles, Calvert, St. Mary’s
                                                                   Counties – 23 members*
Maryland Collaborative Practice Council (MCPC)                     Contact Person:
Statewide umbrella organization for Collaborative Practice – 100   Ronald B. Bergman, Esquire – rbb@houlonberman.com (301)
members and growing*                                               459-8200
www.marylandcollaborativepractice.com
Contact Person: Darcy A. Shoop –                                   * Number of members approximate and subject to change due
dshoop@steinsperling.com                                           to organization growth.

Association of Collaborative Professionals                         UPCOMING EVENTS!! Sign Up Now!
Practice Group – Frederick – 20 members*
Contact Person:                                                    March 14 & 15, 2008…….. Two-Day Basic Training, Turf Valley
Elizabeth Stup, Esquire– elizabethstup@aol.com (301) 663-          Resort, Ellicott City.
7893                                                               Contact: Alice Dansker Doyle- adoylelaw@aol.com
                                                                   (443) 520-9690
Carroll County Collaborative Practice Group (CCCPG)
www.carrollcollaborativelaw.com                                    April 15 to 19, 2008……… Mediation Theory, Process & Skills
Practice Group – Carroll, Howard, and Baltimore Counties – 22      for the Collaborative Professional, Turf Valley Resort
members*                                                           Contact: Alice Dansker Doyle
Contact Person: Alice Dansker Doyle, Esquire –
adoylelaw@aol.com (443) 520-9690                                   May 8, 9 & 10, 2008……… Interdisciplinary Team Training,
                                                                   Gaithersburg Holiday Inn
Collaborative Dispute Resolution Professionals (CDRP)              Contact:
Practice Group – Suburban Maryland and District of Columbia        Karen Robbins Familylawmd@aol.com (301) 260-0223
- 70 members*
www.collablawmaryland.org                                          June 6, 2008…. First Annual Collaborative Practice Symposium
Contact Person: Karen Robbins, Esquire -                           Anyone interested in Collaborative Practice should attend!
familylawmd@aol.com, (301) 260-0223                                Turf Valley Resort
                                                                   Contact: Jolie Weinberg; jgw@wssfamilylaw.com
Collaborative Divorce Association (CDA)                            (410) 997-0203
www.collaborativedivorcemd.com
Practice Group - Montgomery County – 32 members*                   Ms. Shoop is a Principal with Stein, Sperling, Bennett, De
Contact Persons:                                                   Jong, Driscoll & Greenfeig, P.C. in Rockville, Maryland.
Stacy B. Talbott, Esquire - stalbott@stacytalbottlaw.com, (301)    She is the founding President of the Maryland Collabora-
424-7799                                                           tive Practice Council, founding President of the Collabo-
Karen P. Freed, LCSW-C, BCD - kpfreed@hotmail.com                  rative Divorce Association and has a successful collabora-
(301) 816-0978                                                     tive practice.

January 2008                                                                                Section of Family & Juvenile Law 17
  The Time has come to Catch the FLU because the Family
                 Law University is BACK!
       Family Law University                                                                 Adoptions
         Winter Term 2008                                                    Jennifer Fairfax, Esq.    Sherry L. Leichman, Esq.
         Friday, February 8, 2008                                                                John Greene, Esq.
           8:45 a.m. – 3:45 p.m.
         Sheraton Columbia Hotel                                                             1:45 p.m. – 2:00 p.m. - Break
          10207 Wincopin Circle
           Columbia, Maryland                                                        2:00 p.m. – 2:45 p.m. - Break out Session II

A tradition of excellence on continuing legal                                      Grandparent Visitation/Third Party Custody
education returns on February 8, 2008 as                                           Justin J. Sasser, Esq.   Susan Wyckoff, Esq.
MICPEL and MSBA’s Section of Family &                                                         Stacy LeBow Siegel, Esq.
Juvenile Law present the 2008 Winter Term
of Family Law University.                                                              The Role of Best Interest Attorneys
                                                                                   Stephanie L. Fink, Esq.          Barbara R.
The Family Law University offers both critically important “core                            Trader, Esq.
courses” that all family law practitioners should attend, plus a                   Karen P. Freed, LSCW-C, BCD
wide selection of “elective courses” that allow you to craft
your own curriculum choosing the subjects that interest you                          2:45 p.m. – 3:00 p.m. - Break
the most. This year’s curriculum will focus on the recurring
issues that address a family law practitioner when litigating a             3:00 p.m. – 3:45 p.m. - Break out Session III
custody case.
                                                                             Child Support and Health Insurance
                           AGENDA                                   Master Charles J. Muskin          Nancy W. Smith, Esq.
                                                                                   Master M. Elaine Patrick
               8:45 a.m. – 9:00 a.m.-WELCOME
                                                                                     Collaborative Attorneys
                    9:00 a.m. – 10:15 a.m.                         Risa Garon, LCSW-C, BCD, CFLE          Darcy A. Shoop, Esq.
   Plenary Session I – Mental Health Professionals and               Jennifer Merrill, Esq.        Jolie Beth Weinberg, Esq.
                  Evaluations of Children
     Jeanne F. Allegra, Ph.D.       Paul Berman, Ph.D.                                    3:45 p.m. Adjourn
 Patricia Cummings, LCSW-C           Kathleen Killeen, Ph.D.
               Kate Scharff, LCSW-C, LICSW                         In addition the Family Law University, MICPEL and MSBA Sec-
                                                                   tion on Family & Juvenile Law will be presenting a seminar in
             10:15 a.m. – 10:30a.m. -Coffee Break                  March of 2008 on the legal issues affecting unmarried couples.
                                                                   In the spring, the Section will once again be hosting a 6 week
                 10:30 a.m. – 12:00 p.m.                           evening series with topics to include discovery, trial strategies
            Plenary Session II – Mock Trial                        and ethical concerns. Then in May of 2008, the long awaited
    The Hon. Diane O. Leasure        Craig Little, Esq.            Qualified Domestic Relation Workshop which is a must for any
 The Hon. Cathy Hollenberg-Serrette      Paula Price, Esq.         family law practitioner.

                12:00 p.m. – 1:00 p.m.- LUNCH                      I hope to see your there and do not forget to mark your
                                                                   calendars.
                      Afternoon Session
                                                                   Erin Darner Gable, is an associate of Dalnekoff &
          1:00 p.m. – 1:45 p.m. - Break out Session I              Mason, P.A. in Annapolis where she has practiced do-
                                                                   mestic law for almost ten years and is a current mem-
                    Parent Coordination                            ber of the Maryland State Bar Association, Family Law
                  Cynthia Callahan, Esq.                           Section Council and currently is the Chair of the
                Patricia Cummings, LCSW-C                          MICPEL Subcommittee.




18 Section of Family & Juvenile Law                                                                                   January 2008
                                         Case Notes-
                              Conaway v. Deane 401 Md. 219 2007
                                                       By Jennifer Muskus
In Conaway v. Deane, the Court of Appeals upheld the consti-         prohibits equally both men and women from the same con-
tutionality of Md. Code Ann, Fam. Law Art. §2-201, which de-         duct…..”
fines a valid marriage as being only between a man and a woman.
                                                                     The Court wrote that while there was a history of unfair dis-
The Appellants were the County Clerks of Baltimore City, Prince      crimination of homosexuals, and that “it is clear that homo-
George’s County, St. Mary’s County, Washington County and            sexual persons, at least in terms of contemporary history, have
Dorchester County, in their official capacity as County Clerks.      been a disfavored group in both public and private spheres of
The Appellees were 1 gay individual and 9 lesbian and gay            our society, the group as a whole is not politically powerless.”
couples who have entered into committed relationships and            Opinion at 59. “Our task, therefore, is to determine whether the
sought to protect themselves and their children by availing          right to same-sex marriage is so deeply embedded in the his-
themselves of marriage. The Appellees sought a determination         tory, tradition, and culture of this State and Nation that it should
that §2-201 “violates the most basic constitutional guarantees       be deemed fundamental. We hold that it is not.” Opinion page
of equality and liberty for all Marylanders.”                        87. Declining to extend to sexual orientation a suspect classifi-
                                                                     cation, the Court cited other jurisdictions who had declined to
The Appellee couples applied for civil marriage licenses under       extend the classification, and wrote “we shall join those courts
§2-405 of the Family Law Article in their respective counties of     and hold that sexual orientation has not come of age as a sus-
residence. All of the applications were denied by the Clerks of      pect or quasi-suspect classification.” Opinion at 54-55. Con-
each county, under §2-405(e); the applicants, the Appellees          cluding there was “a sufficient link between an interest in fos-
herein, were denied licenses under §2-201, because they were         tering a stable environment for procreation and the means at
same-sex couples.                                                    hand used to further that goal, i.e., an implicit restriction on
                                                                     those who wish to avail themselves of State-sanctioned mar-
On January 20th, 2006, the Circuit Court for Baltimore County,       riage”, the Court found Maryland statue constitutional. Opin-
upon application by the Appellees for declaratory and injunc-        ion page 99.
tive relief, declared Family Law §2-201 unconstitutional. The
trial Court (Judge Murdock) issued an opinion that the exclu-        Judge Raker filed an opinion concurring in part and dissenting
sion of same sex individuals from marriage classifies based on       in part. Concurring that the rational basis review was the ap-
sex without constitutionally sufficient justification, burdening     propriate standard to be used, but dissenting to the result, Judge
the fundamental right to marry without constitutionally suffi-       Raker wrote, “It cannot be argued that same-sex couples are
cient justification in violation of Article 46 of the Maryland       not denied significant benefits accorded to heterosexual
Declaration of Rights. This ruling was stayed pending the timely     couples.” …. “Thus, under Maryland’s current laws, commit-
noting of the State’s Appeal.                                        ted same-sex couples and their children are not afforded the
                                                                     benefits and protections available to heterosexual households.”
The Court of Appeals held that §2-201 does not discriminate on       Dissent page 26. Judge Raker concluded by opining that “It is
the basis of gender. The Court split 4 -3. The Majority opinion,     up to the General Assembly to meet the equal protection guar-
written by Judge Harrell, wrote: “Because Family Law §2-201          antee of Article 24 of the Maryland Declaration of Rights.
does not abridge the fundamental right to marriage (as we un-
derstand that right), does not discriminate on the basis of sex in   Judge Battaglia also wrote a dissenting opinion, in which Chief
violation of Article 46, and does not otherwise implicate a sus-     Judge Bell joined: . . . “the majority offers no principled basis
pect or quasi-suspect class, the marriage statute is subject to      for applying equal protection analysis to couples rather than to
rational review. As such, it carries a strong presumption of         individuals . . . the majority breathes life into the corpse of
constitutionality.” Opinion at 108. Judge Harrell was joined in      separate but equal that this Court laid to rest in Burning Tree
the majority by Judges Greene, Cathell (now retired) and Wilner      II.” Dissenting Opinion pages 52-53. Chief Judge Bell wrote:
(now retired).     In finding that §2-201 does not discriminate      “It is clear to me that the majority misapprehends the nature of
based upon gender, the Court wrote, “. . . The limitations on        liberty at issue in this case. It is not whether a same-sex mar-
marriage effected by Family Law Article, §9-201, do not sepa-        riage, with all the pejorative emotions that evokes, is a funda-
rate men and women into discrete classes for purposes of grant-      mental right; the real issue in this case, when properly framed,
ing to one class of persons benefits at the expense of the other     is whether marriage is a fundamental right.”
class. Nor does the statute, facially or in its application, place
men and women on an uneven playing field. Rather the statute                                                  (continued on page 26)



January 2008                                                                                    Section of Family & Juvenile Law 19
          Case Notes- Best Interest Attorney Fees & Grandparent
                            Custody/Visitation
                               TAYLOR v. MANDEL, 398 Md. 314; 920 A.2d 1059 (2007)
                                            By: Justin J. Sasser, Esq.
As this is our Holidays/New Years issue, and with thoughts of        HOLDING:
rivers, hills and Grandmother’s house abound, I thought I would
take the liberty to regale you with a recent tale of grandparents,       1)        Yes. There is no statutory authority authorizing
children, and angels (i.e. a Best Interest Attorney). Now that I                   imposition of guardian ad litem fees against Tay-
have placated my nod to nostalgia, I give you . . .                                lor, the maternal grandmother of the children, and
                                                                                   she did not waive her objection to the guardian
                                                                                   ad litem fees by requesting the guardian ad litem
TAYLOR v. MANDEL, 398 Md. 314; 920 A.2d 1059 (2007)
                                                                                   appointment or by depositing $ 1,000.00 into her
                                                                                   attorney’s escrow account.
ISSUES ON APPEAL:
                                                                     The Court of Appeals held that a circuit court does not possess
1) Did the Court Err in assessing Guardian Ad Litem’s (GAL)          the authority to assess guardian ad litem fees against a grand-
Counsel Fees against Petitioner, the maternal grandmother of         mother under Md. Code Ann., Fam. Law § 1-202 because the
the children?                                                        use of the term “parent” only permits the court to assess the
                                                                     fees on a mother or a father. Furthermore, Md. Code Ann., Fam.
                                                                     Law § 12-103(a) does not encompass awards of guardian ad
BACKGROUND/ PROCEDURAL POSTURE:                                      litem fees. Md. Code Ann., Fam. Law § 12-103(a) allows the
                                                                     court, at its discretion, to award counsel fees to either party of
This action was initiated by Taylor, the petitioner and mater-       a domestic case where issues of child support, custody, or visi-
nal grandmother of the children, seeking custody of or visita-       tation are involved. Section 12-103(a), though, does not con-
tion with her grandchildren. During the course of the custody        cern attorney’s fees that a court may award to a guardian ad
litigation the grandmother requested the appointment of a            litem. Rather, it refers to any counsel fees accrued by one party
guardian ad litem (GAL). The grandmother and the parents of          in applying for or defending a matter involving child support,
the children reached an agreement as to custody and visita-          child custody, or visitation.
tion of the children, thus alleviating the need for trial. After
the entry of Consent Order memorializing the parties’ custody        As for the argument regarding waiver, the Court held that a
and visitation agreement, the Respondent, Marc Mandel, Esq.,         waiver is defined as the intentional relinquishment of a known
the court appointed GAL, filed a petition for GAL fees. The          right. Waiver rests upon the intention of the party, and there-
grandmother filed a motion objecting to the requirement that         fore, acts relied upon as constituting waiver must unequivo-
she be ordered to pay any of the GAL fees, and contended             cally demonstrate that waiver is intended. The right or advan-
that the plain language of Md. Code Ann., Fam. Law § 1-202           tage waived must be known; the general rule is that there can
(2004), only permitted the assessment of GAL fees against a          be no waiver unless the person against whom the waiver is
parent, and that Md. Code Ann., Fam. Law § 12-103 (2004) was         claimed had full knowledge of his or her rights, and of facts
inapplicable because it involved the payment of “counsel             which will enable him to take effectual action for the enforce-
fees” and not payment of GAL fees. The Circuit Court for             ment of such rights. Thus the grandmother did not waiver her
Baltimore County held that the grandmother had waived her            right to object to the award or apportionment of GAL fees, as
right to object to either the payment of GAL fees as she failed      the court stated that compliance with a court order does not
to raiser her objection until the end of the case, and by depos-     waive your right to file a “seasonable” objection.
iting $1,000.00 into her attorney’s trust account in compliance
with the Court’s Order, and GAL fees were awarded against            Practice Consideration:
both parties to the custody litigation.
                                                                     Holy “Seasonable” Objections Batman!!! Indeed, ‘tis the sea-
The grandmother noted her appeal to the Court of Special Ap-         son for domestic unrest, and not even the angels (umm, I mean
peals (Maryland), who affirmed the Circuit Court ruling in an        Best Interest Attorneys/Guardian Ad Litem) are protected. As
unreported opinion. The grandmother then appealed the order          if last years judicial and legislative demotion from what we
of the Court of Special Appeals affirming the trial court’s judg-    thought was quasi-immunity for BIA’s to absolutely no protec-
ment in favor of the GAL.                                            tion and no clear standard of care was not bad enough, now
                                                                                                             (continued on page 27)

20 Section of Family & Juvenile Law                                                                                      January 2008
   Case Notes- No Appeal of Protective Order from District Court
    to Circuit Court When Consent Judgment, Absent Fraud or
     Coercion, Is Entered – Domestic Violence Protection Act.
                      Suter v. Stuckey, No. 9, September Term 2007 (11-14-07)

                          By: Marjorie Roberts, Paralegal for Christopher R. vanRoden, Esquire

Facts:      Appellant, Judith Suter, filed a petition for a tempo-       tions. The panel concluded also that Md. Rule 7-102 and § 4-
rary protective order in the District Court for Prince George’s          507 support the finding that Stuckey was entitled to a de novo
County, requesting protection from domestic violence involv-             appeal. The panel reversed the Circuit Court and remanded
ing her boyfriend, the Appellee, Darryl Stuckey. After the Hear-         the case for a trial de novo.”
ing, the District Court issued the Temporary Protective Order
(TPO), granting her the relief she sought, and scheduled a final         The Court of Appeals granted Ms. Suter’s petition for writ of
protective order hearing. A final protective order by consent            certiorari. Suter v. Stuckey, 398 Md. 314, 920 A.2d 1058 (2007).
was entered five days later pursuant to Maryland Code (1984,
2006 Repl. Vol.), § 4-506(c) of the Family Law Article, which            Question Presented: “In a domestic violence protective order
states in pertinent part:                                                proceeding originating in the District Court, is a respondent
“(1) If the respondent appears before the court at a protective          estopped from appealing to the circuit court a protective order
order hearing or has been served with an interim or temporary            entered by consent?”
protective order, or the court otherwise has personal jurisdic-
tion over the respondent, the judge:                                     Held:     The Court of Appeals held: (1) that Family Law § 4-
     “(i) may proceed with the final protective order hearing;           507 does provide a right to appeal from the entry of a protective
     and                                                                 order from the District Court to the Circuit Court to be heard de
     “(ii) if the judge finds by clear and convincing evidence           novo; (2) that although the protective order was moot due to its
     that the alleged abuse has occurred, or if the respondent           April 18, 2007 expiration, the Court considered this appeal due
     consents to the entry of a protective order, the judge may          to its importance to important public concern and the likelihood
     grant a final protective order to protect any person eligible       of recurrence, and (3) that when a protective order is entered
     for relief from abuse.”                                             into by consent, and there is no fraud or coercion, there is no
                                                                         right to an appeal.
Mr. Stuckey appealed at the Circuit Court for Prince George’s
County, requesting a de novo appeal based on § 4-507(b) of               Ms. Suter urged the Court of Appeals to consider the merits of
the Family Law Article on the petition for the final protective          this case, “despite its having now become moot, because an
order. Mr. Stuckey also based his appeal on Md. Rule 7-102(a)            important public policy is implicated and the very limited nature
(2007), which governs appeals from the District Court to the             of protective orders means that this problem will continue to
Circuit Court. Ms. Suter filed a motion to dismiss the Circuit           evade review. We agree that this case is one of those rare cases
Court appeal, “arguing the appeal was time-barred and Stuckey            that presents an unresolved issue of important public concern.
was estopped from appealing a consent judgment.” After the               Accordingly, we exercise our discretion to address this issue
hearing, the Circuit Court granted Ms. Suter’s motion to dis-            because it implicates an important public policy, it is likely to
miss and affirmed the Final Protective Order. Mr. Stuckey                recur, and on recurrence it will evade review.” Domestic vio-
subsequently requested an in banc review of the Circuit Court            lence is recognized as a “significant important public policy
ruling pursuant to Md. Rule 2-551, again referring to Md. Rule           concern to trigger review of moot cases. . . . A large number of
7-102 (Modes of appeals) and § 4-507 (Alterations of orders              these end in consent judgments. In addition to being preva-
and appeals) and his right to a trial de novo. “Ms. Suter                lent, such judgments will evade review because they expire
argued that no appeal lies from a consent judgment.” The                 under their own terms within, at most, a year. For these reasons
panel ruled that Mr. Stuckey was entitled to a de novo appeal            we will consider the merits of the matter before us.”
“based on statutes governing appeals from the District Court
to the Circuit Court in domestic violence protective order               Mr. Stuckey based his appeal partly on Family Law § 4-507(b),
cases.” Section 12-401 of the Courts and Judicial Proceed-               which entitles a person to an appeal from the District Court to
ings Article states: “. . . In every other case, . . . an appeal shall   the Circuit Court to be tried de novo in all civil and criminal
be tried de novo.” The in banc panel concluded that this case            cases, whether the order was entered by consent or not. He
“was an example of ‘every other case’ that would be tried de
novo under the section because appeals from a domestic vio-
lence protective order are not noted in the companion excep-                                                    (continued on page 22)

January 2008                                                                                       Section of Family & Juvenile Law 21
Case Notes- Suter v Stucky...
(Continued from page 22)

also relied on Family Law § 12-401 and Rule 7-102(a). “Stuckey     the right to appeal and the mode of appeal are delineated
maintains that the Legislature provided that any appeal from       in § 4-507.
the District Court to the Circuit Court is to be de novo, and it
is irrelevant whether the order entered in the District Court      Mr. Stuckey benefited materially from the agreement to an order
was by consent. He argues that the plain language of the           by consent. “The entry of the consent judgment gave Stuckey
statute should control, and that if appeals from consent judg-     the benefit of certainty that Ms. Suter would be granted no
ments are to be excluded, the Legislature should amend the         further relief. Stuckey benefited from the entry of the consent
statute to preclude them explicitly.” In a footnote, the Court     Order by getting what he bargained for – cessation of litigation
of Appeals stated that they do not consider Md. Rule 7-102 in      under terms he agreed to.”
determining whether there is a right to appeal from a domestic
violence protective order entered by consent, as they have         The Court of Appeals concluded that: “Stuckey agreed to the
previously made clear that the Maryland Rules do not grant a       entry of the Order by consent. After agreeing to the Order,
right to appeal.                                                   Stuckey was no longer an aggrieved party. Instead, he received
                                                                   the result he wanted and intended at the time. Stuckey’s con-
The Court of Appeals stated that “no appeal lies from a con-       sent is evidence that the Order was a disposition in his favor.
sent decree.” An appeal is limited to parties who are ag-          Absent any allegation of irregularity in the entrance of the judg-
grieved by a final judgment and a party cannot be aggrieved        ment, the right to appeal from the consent judgment simply did
by a judgment in which the party has agreed to. “The nature        not exist under § 4-507.”
of a consent judgment precludes appeal. Consent judgments
‘are essentially agreements entered into by the parties which      Practice Considerations: Appeals are reserved for an ag-
must be endorsed by the court. They have attributes of             grieved party. A party who enters into a protective order by
both contracts and judicial decrees.’ Chernick v. Chernick,        consent has received the desired result and is not therefore
327 Md. at 478, 610 A.2d at 774 (1992) (citing Local Number        aggrieved. Thus, protective orders entered into by consent
93 v. City of Cleveland, 478 U.S. 501, 519, 106 S. Ct. 3063,       may not be appealed.
3073, 92 L. Ed.2d 405 (1986)).” In Chernick, a con-
sent order which was signed and filed with the court
had a contractual nature and therefore could not
be invalidated due to a change of mind of one of
                            (continued on page 28)
the parties. The Court of Appeals stated that “[t]he
public policy of promoting settlement agreements
by ensuring finality is another reason to disallow
appeals from consent judgments. The court in
Chernick pointed to the desirability of settlement
agreements that are binding and enforceable.”
Courts should look with favor on compromises and
settlements for efficiency and economic reasons
and the lessening of friction and acrimony. Long
v. State, 371 Md. 72, 84-85 (2002) (quoting Clark v.
Elza, 286 Md. 208, 219 (1979)).

The Court of Appeals considered § 4-507 of the
Family Law Article and § 12-401 of the Courts
and Judicial Proceedings Article and their ap-
plications to domestic violence protective or-
ders that are entered by consent. “Section 12-
401(f) determines the mode of appeal from a Dis-
trict Court judgment and does not grant or con-
strain the right of appeal. The grant of a right
to appeal in domestic violence protective or-
ders is governed squarely by § 4-507.” Both




22 Section of Family & Juvenile Law                                                                                    January 2008
                                    Case Notes- Indefinite Alimony
   Whittington v. Whittington, No. 32, September Term 2006, 172 Md. App. 317
                                                      By: Nakia V. Gray, Esq.
Facts: Scott and Christina Whittington were married on July             Issues on Appeal:
17, 1982. They purchased a home in 1985, and both resided in
the marital home until December 2003. Scott worked for Toyota           1) Did the trial court err in awarding Christina indefinite alimony
for 20 years in information systems. Christina worked as a              of $1,500 per month?
typesetter and production artist for most of the marriage. In           2) Did the trial court err in its monetary award to Christina?
1999, she reduced her hours to 30-35 hours per week due to job          3) Did the trial court err in awarding Christina the survivor
stress, excessive overtime, and wrist and elbow problems. Chris-        benefit of Scott’s pension?
tina began to work “flex time”, which allowed her to work non-          4) Did the trial court make inconsistent findings of material facts?
traditional hours and/or work from home, as long as she put in          5) Did the trial court by failing to modify alimony and counsel
the requisite number of hours each week. After the parties              fees after it modified the monetary award?
separated in 2003, Christina’s employer asker her to work tradi-        6) Did the trial court abuse its discretion in awarding counsel
tional hours. Christina was subsequently fired when she com-            fees to Christina?
plained she could not work traditional hours because it inter-
fered with caring for her dog.                                          Held: The indefinite alimony award must be vacated because
                                                                        the trial judge did not exercise discretion in deciding whether to
The Whittington’s marriage was satisfactory for the first seven         award indefinite alimony. Under Maryland law, there is a gen-
years. Scott’s mother died in 1989, causing him to go into a            eral rule in favor of fixed term or rehabilitative alimony. Not-
depression. This marked the beginning of serious problems for           withstanding the general rule, the Family Law Article recog-
the couple. By 2000, the couple was sleeping in separate beds,          nizes two exceptional circumstances in which a circuit court
were no longer having sexual relations, and interacted very             may award indefinite alimony. The court has discretion to award
little at home.                                                         indefinite alimony if, “due to age, illness, infirmity, or disability,
                                                                        the party seeking alimony cannot reasonably be expected to
Christina began an extramarital affair in 2002, while Scott began       make substantial progress toward becoming self-supporting.”
an extramarital affair in 2003. The parties had a frank discussion      FL § 11-106(c)(1). In addition, the court may award indefinite
in December of 2003, where they each disclosed their respec-            alimony upon a finding that, even after the party seeking ali-
tive romantic relationships with other people.                          mony will have made as much progress toward becoming self-
                                                                        supporting as can reasonably be expected, the respective stan-
In December of 2003, Scott moved out of the marital home and in         dards of living of the parties will be unconscionably disparate.”
with his lover. In December of 2004, Christina moved to Florida         FL § 11-106(c)(2). Only the second exception, “unconscionable
to begin renting an apartment with her lover. During the separa-        disparity” was applicable in the Whittington case.
tion, the couple each paid half of the mortgage and utility bills.
In January of 2005, Christina filed a Complaint for Absolute            Whether there will be a post-divorce unconscionable disparity
Divorce in the Circuit Court for Anne Arundel County on the             in the parties’ standards of living usually begins with an exami-
ground of a voluntary separation. She requested alimony, both           nation of their respective earning capacities. The Court of Spe-
pendente lite and indefinite, continued health coverage, and a          cial Appeals noted that in examining the respective earning
monetary award that included attorney’s fees, including ex-             capacities, the court must look forward to a time of maximum
penses for pendente lite proceedings. The Court denied the              productivity of the party seeking the award, and not to the
request for pendente lite alimony and attorney’s fees.                  standards of living of the parties during the separation.
At trial, Scott’s salary was $150,000 per year and the parties stipu-   Relying on its prior holding in Karmand v. Karmand, 145
lated that Christina’s earning potential was $35,000 per year.          Md.App 317, 802 A.2d 1106 (2002), the Court also reasoned that
                                                                        a mere difference between the parties’ post-divorce standards
On February 22, 2006, the Court granted Christina an absolute           of living, even if the disparity is great, does not in and of itself
divorce, a monetary award of $30,531.60, an award of indefinite         establish a unconscionable disparity. To be unconscionable,
alimony of $1,500 per month and $7,500 in attorney’s fees. Chris-       the disparity must create a situation in which one spouse’s
tina filed a motion to alter or amend asking the court to award         standard of living is “so inferior, qualitatively or qualitatively,
her an interest in the survivor benefit of Scott’s Toyota pen-          to the standard of living of the other as to be morally unaccept-
sion. Despite Scott’s opposition, the Court granted Christina’s         able and shocking to the court.” Karmand, 145 Md. App at 337.
motion and entered and amended judgment awarding her 40%
of the survivor benefit Scott’s pension, paid on an “if, as, and
when” basis, pursuant to the Bangs formula.1 Scott filed a
timely appeal.                                                                                                    (continued on page 24)

January 2008                                                                                        Section of Family & Juvenile Law 23
Case Notes- Whittington v. Whittington...
(Continued from page 23)
The Court also discussed the failure of the trial judge to exer-       The Court of Special Appeals vacated the indefinite alimony,
cise discretion in whether to award alimony. The Court pointed         the monetary, and counsel fees awards and remanded to the
out that the trial court was not required to award indefinite          Circuit Court for further proceedings.
alimony, and in fact had the discretion to award no alimony,
rehabilitative alimony, or, upon a proper finding of unconscio-        Endnotes
nable disparity, indefinite alimony. The Court found that it was       1
                                                                         The Bangs formula takes its name from Bangs v. Bangs, 59
legal error for the trial court to fail to exercise such discretion.   Md.App 350, 475 A.2d 1214 (1984), in which the Court of Spe-
                                                                       cial Appeals approved the use of a coverture formula to allo-
The Court rejected Christina’s argument that the two most im-          cate pension benefits based on length of the marriage and the
portant factors with respect to whether there will be an “uncon-       length of employment by the pension holder.
scionable disparity” in post-divorce standards of living are the
length of the marriage and the income percentages. The Court           Nakia V. Gray, Esq. is a solo practitioner with offices in
argued that the decision whether to award alimony, and if so,          Greenbelt and Chevy Chase, Maryland. She primarily prac-
for what period of time, is fact-intensive and not subject to a        tices family law in Prince George’s and Montgomery Coun-
formulaic resolution. The Court noted that while the                   ties. She is a member of the Maryland State Bar Association,
Whittington’s were married for 23 years, they did not function         Prince George’s County Bar Association, and Bar Associa-
as a married couple for much of that time, and for over a year         tion of Montgomery County, including the family law sections
while they were separated, they were both engaged in romantic          of each association. Mrs. Gray can be reached at
relationships with other people.                                       301.552.5050 or www.nakiagraylaw.com.




  Case Notes- CSRS Pension Orders- Beware of Consequences if
                      Intent Not Stated
     Hearn v. Hearn, No. 2761, September Term 2006, 2007 Md. App. LEXIS 151
                                                 By: Lindsey K. Erdmann, Esq.

This case arises from federal pension-related issues occurring         sion benefits on an “if, as, and when” basis and pursuant to
post-divorce between the parties to this appeal. The source of         a pro rata formula as set forth in the agreement. The formula
controversy concerns the terms upon which Husband’s federal            and language contained in the separation agreement was
pension benefits will be divided between the parties, namely           silent as to whether the formula would be applied to the
whether the formula used to calculate Wife’s interest should be        gross amount of Mr. Hearn’s pension benefit, or to the net
applied to the net amount of the annuity (as Husband con-              amount of the annuity.
tends), or whether the formula should be applied to the gross
amount of the annuity (as Wife contends). When the Office of           The parties thereafter negotiated a CSRS pension order to ef-
Personnel Management (“OPM”) accepted the Civil Service                fectuate the parties’ agreement, and that CSRS order was sub-
Retirement and Survivor Annuity Benefits Order (“CSRS or-              sequently signed and entered by the Circuit Court. Similarly,
der”) and advised that it would apply the formula to the gross         the CSRS pension was likewise silent regarding whether the
amount of the annuity, and the Circuit Court denied Husband’s          pro rata formula would be applied to the gross or the net amount
request to instruct OPM to apply the formula to the net annuity,       of the benefit. After submitting the CSRS order to OPM, coun-
this appeal followed by Husband.                                       sel for Mr. Hearn learned that OPM had accepted the order for
                                                                       processing, but that OPM would calculate Mrs. Hearn’s por-
      BACKGROUND AND PROCEDURAL HISTORY:                               tion by applying the pro rata formula to the gross payment due
                                                                       to Mr. Hearn at retirement, rather than to the net amount to be
The parties to this appeal, Mr. and Mrs. Hearn, were divorced          received by Mr. Hearn.
by the Circuit Court for Frederick County, Maryland on Sep-
tember 15, 1999. The final divorce judgment incorporated,              Unhappy because he believed the parties’ intent was to apply
but did not merge, the parties’ separation agreement which             the formula to the net payment, Mr. Hearn filed a motion in the
provided, in pertinent part, for a division of Mr. Hearn’s pen-                                               (continued on page 25)

24 Section of Family & Juvenile Law                                                                                       January 2008
Case Notes- Hearn v. Hearn...
(Continued from page 24)

Circuit Court requesting an order requiring OPM to enforce the     Hearn to receive a portion of the gross benefits of Mr. Hearn’s
CSRS order by applying the fraction to Mr. Hearn’s net annuity     federal pension. The Court reasoned that, although on its
rather than the gross amount of the annuity. The motion, sup-      face the CSRS order does not state whether the pro rata for-
ported by an affidavit of Mr. Hearn, argued that the parties’      mula is to be applied to the gross annuity payment or the net
intent, belief, and agreement was that Mrs. Hearn’s share of the   annuity payment, the applicable federal regulations provides
retirement benefit would be calculated from the net annuity        that “unless the court order otherwise directs, OPM will apply
payment received by Mr. Hearn. Mrs. Hearn filed an opposi-         the formula, percentage, or fraction to gross annuity,” and
tion, supported by her own affidavit, in which she stated that     therefore any ambiguity is conclusively resolved. See 5 C.F.R.
the CSRS order reflected her intent and understanding. On          § 838.306(b). It is presumed that the parties knew the appli-
November 28, 2006, the Circuit Court held a hearing on Mr.         cable federal regulations when they negotiated the CSRS or-
Hearn’s motion. After hearing opening statements by counsel        der. There is no ambiguity to resolve when there is a clear
for both parties, and without taking any testimony, the Circuit    federal regulation which applies, and where the CSRS order is
Court summarily denied Mr. Hearn’s motion, reasoning that the      viewed as if the governing federal regulations were a part of
CSRS order is unambiguous because the Code of Federal Regu-        the CSRS order itself. As a result, there was no need for the
lations mandates that OPM apply CSRS orders to gross ben-          Circuit Court to consider extrinsic evidence regarding the par-
efits, unless the CSRS order specifies that OPM is to apply the    ties’ subjective intent to resolve any potential ambiguity in
order to the net benefit. The Circuit Court did not address Mr.    the CSRS order.
Hearn’s assertion that the CSRS order did not conform to the
parties’ mutual intention.                                         2. The Circuit Court erred in denying Mr. Hearn’s request
                                                                   without permitting him to present any evidence in support
The day following the Circuit Court’s hearing on Mr. Hearn’s       of his motion.
motion, Mr. Hearn filed a proffer, in which he states that had
he been permitted to present evidence in support of his mo-        The Court of Special Appeals held that the Circuit Court erred
tion, he would have offered two (2) letters between his coun-      in denying Mr. Hearn’s request without permitting him to present
sel and opposing counsel, which he argues demonstrate that         any evidence in support of his motion. The Court reasoned
the parties intended the formula to apply to the net amount of     that even if a contract is unambiguous, the contract can be
the annuity rather than the gross amount. In response, Mrs.        reformed if it is the result of a mutual mistake; in contrast, in the
Hearn filed a motion to strike the proffered material. On Janu-    case of a unilateral mistake, reformation is not appropriate. The
ary 11, 2007, the Circuit Court entered its written order deny-    Court held that “it is within the power of a court of equity to
ing Mr. Hearn’s motion. Mr. Hearn noted his appeal on Febru-       revise a consent order to make it conform with the actual mutual
ary 1, 2007.                                                       intent of the parties,” and reiterated the established legal prin-
                                                                   ciple that parol evidence is admissible to vary and reform a
                    ISSUES ON APPEAL:                              written contract upon the ground of mutual mistake. In this
                                                                   case, Mr. Hearn argued that there was a mutual mistake on both
1. Whether the Circuit Court erred in ruling that the pro rata     his part and Mrs. Hearn’s part, and as a result, the mutual mis-
formula used in the CSRS order applies to the gross payment        take should be corrected by reforming the CSRS order to com-
and not to the net payment received.                               ply with the actual intent of the parties—that intent being that
                                                                   OPM apply the pro rata formula to Mr. Hearn’s net payment,
2. Whether the Circuit Court erred in denying Mr. Hearn’s re-      rather than his gross benefit. Because the record was devoid of
quest without permitting him to present any evidence in sup-       any factual findings by the Circuit Court as to Mr. Hearn’s as-
port of his motion.                                                sertion that the parties mutually intended the formula to apply
                                                                   to the net benefit, the Court vacated the judgment of the Circuit
                                                                   Court and remanded the case to the Circuit Court for further
               DISCUSSION AND HOLDING:                             proceedings. The Court declined to express an opinion as to
                                                                   whether the evidence proffered by Mr. Hearn would be suffi-
1. The Circuit Court did not err in ruling that the pro rata       cient to establish a mutual mistake.
formula used in the CSRS order applies to the gross payment
and not to the net payment received.                                              PRACTICE CONSIDERATIONS:

The Court of Special Appeals held that the Circuit Court cor-      This case should remind all practitioners of the importance of
rectly ruled that the CSRS order, as entered, provides for Mrs.    careful drafting and thorough reviewing of legal documents,

                                                                                                             (continued on page 26)

January 2008                                                                                  Section of Family & Juvenile Law 25
Case Notes- Hearn v. Hearn...
(Continued from page 25)
and of the necessity to ensure that agreements and consent
orders accurately reflect the intent of the parties. With respect
to federal pensions, which family law practitioners in this State
encounter frequently, it is critical to be aware that OPM’s de-
fault position is that CSRS pension benefits will be distributed
according to the gross amount of the benefit. When drafting,
reviewing, and negotiating agreements, consent orders, and
pension orders in cases in which federal pensions are at issue,
if the parties intend to apply the distribution formula to the net
amount of the benefit rather than to the gross amount of the
benefit, it is critical to state so in the document itself.


Lindsey K. Erdmann is an attorney in the law firm of Knight,
Manzi, Nussbaum, & LaPlaca, P.A. located in Upper Marlboro,
Maryland, focusing her practice in the area of family law.




Case Notes- Conaway v. Deane. . .
(continued from page 19)

David Rocah, legal counsel with the ACLU Foundation of Mary-
land, and 1 of 4 attorneys representing the Appellees, stated
that the issues raised in Conaway v. Deane were appropriate
for judicial resolution, and not the exclusive province of the
legislature. Mr. Rocah said “the right at stake was clearly a
constitutional one – the right to marry.”

         Mr. Rocah described the 4-3 split opinion as disap-
pointing. However, he maintains that “it is the end of the court
case, not the end of the issue.”

Jennifer L. Muskus, Esquire is a Member of the Law Firm of
Muskus & Muskus, LLC, focusing her practice in the area of
Family Law. If you have any questions related to this article,
she can be reached at 301/449-7444.


26 Section of Family & Juvenile Law                                  January 2008
Case Notes- Taylor v. Mandel...
(Continued from page 28)
BIA/GAL’s don’t get paid! Where is the love! ARRRGGG!!!
Don’t get me wrong, Pro Bono service is a time honored and
necessary component of our legal system, and is integral in the
preservation of equal justice. However, this is tantamount to a
“Dine and Ditch”. Well my fine feathered colleagues, those of
you who occasionally serve as BIA’s, as do I, should take note
that when encountering a case with a party that is neither the
mother or father, beware that there is an equal or better chance
that they shall attempt to “cheap out” on you and dodge your
hard earned bill as a BIA. My suggestion is that in jurisdictions
that so allow, only agree to the appointment as a BIA if the non-
parent party agrees to enter into a contract for your BIA fees.
This may require some legal gymnastics with the court; how-
ever, you certainly proceed at your own peril if you do not have
such a contractual obligation in place. Additionally, there is
always the route of getting involved, even if only through a
well worded letter to your local state legislator in support of a
change in the law to allow compensation for your beleaguered
BIA’s. In my opinion, support for such a change would be well
received, given the nature of the dissent authored by Judges
Raker, Bell and Cathell.

Justin J. Sasser, LLC is located in Upper Marlboro, Maryland,
and is a member of your Family and Juvenile Law Section
Council focusing his practice in the area of Family Law. If you
have any questions related to this article, he can be reached
at (301) 627-4300 or jsasser@chesapeake.net




January 2008                                                        Section of Family & Juvenile Law 27
FAMILY & JUVENILE LAW SECTION
  Maryland State Bar Association, Inc.
       520 West Fayette Street
     Baltimore, Maryland 21201

								
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