Md. Court of Appeals: Father keeps $3M award in case of two sons

Daily Record, The (Baltimore), Apr 10, 2008 by Caryn Tamber

The Court of Appeals has affirmed a $3 million verdict in favor of a man whose ex-wife and mother-in-law took his two sons to Egypt, where they remain.

Michael Shannon's lawsuit against his ex-wife, Nermeen Khalifa Shannon, and her mother, Afaf Nassar Khalifa, alleged that in 2001 the women abducted the Shannons' children, Adam, 4, and Jason, 7 months. Michael Shannon has not seen his sons since.

He sued the women in Anne Arundel County Circuit Court, where a jury awarded him compensatory and punitive damages. The top court affirmed on Wednesday.

WHAT THE COURT HELD

Case: Khalifa et al. v. Shannon, CA No. 56, Sept. Term 2007. Reported. Opinion by Battaglia, J.; concurrence by Raker, J. Filed April 9, 2008.

Issue: Did the trial court err in (1) recognizing the tort of interference with custody and visitation? (2) denying appellants' motions alleging that the punitive damages were grossly excessive and that there was no evidence of appellants' ability to pay?

Holding: No; affirmed. Maryland has recognized the tort since Hixon v. Buchberger in 1986. Under the factors set out in Bowen v. Caldor Inc. in 1998, the punitive damages were not grossly excessive. Appellee was not required to prove appellants' ability to pay.

Counsel: William C. Brennan Jr. for appellants; Stephen J. Cullen for appellee.

Michael Shannon's lawyer, Stephen J. Cullen of Miles & Stockbridge P.C., called the decision "huge" for parents whose ex- partners blatantly flout custody and visitation agreements.

"The most important thing is, the clear message is, this type of appalling behavior by parents is not going to be tolerated in our civilized Maryland society," Cullen said.

William C. Brennan Jr., who argued the case for Nermeen Shannon and Khalifa, did not return a call for comment.

Interference claim

On appeal, Brennan argued that Maryland does not recognize interference with child custody and visitation as the basis for a civil lawsuit for damages.

Six of the court's seven judges agreed that the tort was established by the 1986 case Hixon v. Buchberger, in which the Court of Appeals declined to hold that a mother's fiance was interfering with a father's visitation rights by making belligerent remarks about the father in the child's presence.

In concluding that the interference in Hixon was insufficient compared to the interference in cases Hixon relied upon, the court recognized the tort of interference with parent-child relations, Judge Lynne A. Battaglia wrote on Wednesday.

The court held that a parent does not have to allege "economic loss of the child's services" to sustain such a tort, as was done historically.

"Assuming the truth of all well-pleaded, relevant, and material facts in the complaint and any reasonable inferences that can be drawn therefrom, we conclude that Shannon sufficiently alleged the elements of the tort of interference with parent-child relations and that the trial court did not err when denying the motion to dismiss for failure to state a claim upon which relief can be granted," she wrote.

Judge Irma S. Raker wrote a separate concurrence opining that, although the court has the power to create a new tort for interference with custody and visitation, such a tort did not previously exist in Maryland.

Slippery slope?

Two family lawyers who were not involved in the Shannon case, Adelberg, Rudow, Dorf & Hendler LLC partners Michael G. Hendler and Marc B. Noren, said they were surprised that the majority held that the tort was already established.

"If that had been sort of the common consensus of family law practitioners, we'd have had a lot more of these by now," said Noren, chairman of the Family and Juvenile Law section of the Maryland State Bar Association. "The common view was that it really didn't exist in Maryland."

The court held that Hixon recognized a tort for interference with visitation as well as interference with custody, a critical holding since, at the time of the alleged abduction, Michael Shannon had custody of Adam but only visitation rights for the infant Jason.

The court stressed, though, that to sustain a case alleging interference with visitation, the plaintiff must allege "a major and substantial interference," such as that alleged by Shannon.

Noren said he will watch closely to see where the court draws the line. He said he expects clients to begin calling to find out whether he can file a tortious interference claim in their cases.

"I'd be a little interested to see what kind of slippery slope might exist," he said.

The court also affirmed the jury's $2 million punitive damages award against Nermeen Shannon and Khalifa, holding that Michael Shannon's uncontroverted testimony that the family has at least six homes and six cars is enough to establish their ability to pay.

The seriousness of the women's actions and the fact that they still have the boys in Egypt also supports the high award, Battaglia wrote.

"We view Appellants' ongoing harboring of Shannon's children in Egypt as an aggravating factor, and a high punitive award is appropriate to deter others from engaging in similar conduct," she wrote. "Evidence of the ongoing absence of the children also indicates to us that Shannon will never be fully compensated for the loss of society and companionship that he has suffered at the hands of the Appellants."