Circuit court can modify custody pending appeal, CSA says

Daily Record, The (Baltimore), Jan 27, 2005 by Alisa Bralove

The circuit court does not lose jurisdiction to modify a custody order when there is an appeal pending, the Court of Special Appeals has held.

We are persuaded that the appeal of a custody order does not divest the circuit court of jurisdiction to decide the merits of a claim that, as a result of a material change in circumstances that has occurred after that order was entered, a change in custody is in the child's best interest, Chief Judge Joseph F. Murphy Jr. wrote for the court.

The decision means Lynn M. Koffley's emergency motion to transfer custody of her son should have been brought in Prince George's County Circuit Court, rather than at the appellate level.

Jo Benson Fogel, who represented the father, Joseph J. Koffley Jr., praised the court's handling of the unique facts in the case - notably a long and confusing record that includes filings for 16 contempt petitions and an earlier appeal to the court last year.

The Court of Special Appeals was particularly mindful of the children in how it described the circumstances, and I think that's especially important, she said.

The mother's attorney, Paul V. Jorgensen, did not return a call seeking comment.

The Koffleys divorced in 1999 after 11 years of marriage. The couple has three children - a 16-year-old daughter, a 14-year-old son, and an 11-year-old daughter - all in their father's custody since June of 1997.

After awarding full custody to the father, the circuit court judge entered a pendente lite order requiring the mother to pay $1,644 a month in child support. The order stated that the obligation would remain in place until superseded by another order.

On Feb. 13, 2004, Prince George's County Circuit Judge Herman Dawson suspended the mother's right to visitation. Four months later, the judge ordered her to pay $16,141.25 toward her ex-husband's counsel fees, as well as $4,551 in arrears. The order also set a Feb. 18, 2005 rehearing to re-evaluate visitation.

The mother then filed an emergency motion in the Court of Special Appeals, believing that the circuit court lacked jurisdiction because there was an appeal pending.

The appeals court, however, disagreed with the mother and said that appealing a custody order to a higher court does not remove jurisdiction from the circuit court because custody orders are always subject to modification.

And, noting that the father agreed that the mother should have some type of supervised visitation, the appeals court converted the order suspending visitation to a pendente lite order until the parties meet again at the scheduled hearing.

The court found no merit in her procedural arguments - that the trial judge erred in appointing only one attorney as the guardian ad litem to the three children; that he sua sponte scheduled a custody hearing; and that he was wrong to question her as to the accuracy of the information provided by the children.

The appeals court also said there was no merit in the argument that the trial judge should have recused himself after the mother sent Judge Murphy of the Court of Special Appeals a letter complaining about the trial judge's speed in making decisions.

To hold otherwise would vest every dissatisfied litigant with the power to recuse the trial judge, Murphy wrote - noting that a circuit court judge should be cognizant of when a case has reached the point where the interests of all of the parties would be better served by another judge.

WHAT THE COURT HELD

Case:

Koffley v. Koffley, CSA Nos. 46 and 910, Sept. Term 2004. Reported. Opinion by Murphy, C. J. Filed Jan. 25, 2005.

Issue:

Does the appeal of a custody order to a higher court divest the circuit court of jurisdiction to modify the order?

Holding:

No. Where there is a material change in circumstances, the circuit court has jurisdiction to modify or enter a new custody order.

Counsel:

Paul V. Jorgensen for appellant; Jo Benson Fogel for appellee.