Author: JGL Law

You have your custody order, but it’s been a few years and circumstances have changed. You want to modify the Order, so now what?

If you’re looking to modify a custody order, you are likely already very familiar with the terms “best interest of the children.”  As you know, the primary focus of any custody case and determination is the best interests of the children. In Montgomery County v Sanders, the Court of Special Appeals attempted to narrow down and enunciate the factors a trial court should consider in determining the best interest of a child. The Court ruled that the criteria should include an evaluation of the  “1) fitness of the parents, 2) character and reputation of the parties,  3) desire of the natural parents and agreements between the parties,  4) potentiality of maintaining natural family relations, 5) preference of the child, 6) material opportunities affecting the future life of the child, 7) age, health and sex of the child,  8) residences of parents and opportunity for visitation,  9) length of separation from the natural parents and 10) prior voluntary abandonment or surrender.” [Internal citations omitted].

In addition, a trial court may consider the “capacity of parents to communicate and to reach shared decisions affecting child’s welfare, willingness of parents to share custody, fitness of parents, relationship established between child and each parent, preference of child, potential disruption of child’s social and school life, geographic proximity of parental homes, demands of parental employment, age and number of children, sincerity of parents’ request, financial status of parents, impact on state or federal assistance, and benefit to parents.” See Shenk v Shenk and Taylor v Taylor.

Because the Court is primarily concerned with the best interest of the children, which change and evolve over time, Courts in Maryland have the power to modify custody.  Pursuant to the §8-103 of the Family Law Article, Maryland Courts are vested with the power to modify any agreement or settlement with respect to the “care, custody, education or support of any minor child . . . if the modification would be in the best interests of the child.”

However, a parent should keep in mind that it is the burden of the moving party to demonstrate the need for a change in custody.  As explained in McMahon v. Piazze, “when presented with a request for a change of, rather than an original determination of, custody, courts employ a two-step analysis. First, the circuit court must assess whether there has been a ‘material’ change in circumstance.” As the Court of Appeals has explained, “a change in circumstances is ‘material’ only when it affects the welfare of the child.” McMahon at 594, citing McCready v. McCready, 232 Md. 476, 482, 593 A.2d 1128 (1991). See also Sullivan v Auslaender, 12 Md. App. 1, 5, 276, A.2d 698 (1971) (holding that to justify a change in custody, the change in conditions upon which it is based must be one affecting the welfare of the child and not of the parent) (citing Krebs v Krebs, 255 Md. 264, 257 A.2d 428 (1969). If the Court finds that there has been a material change in circumstances, then they consider the best interest of the child (as described above) “as if the proceeding were one for original custody.” See McMahon v. Piazze.

This is a tough burden to prove because normal, everyday change will not necessarily in and of itself warrant a modification.  For example, claiming that the child was 4 years old when the Court determined custody and the child is now 7 is not typically sufficient (without more) to warrant a modification.  The Court of Appeals has explained that the requirement of a showing of “material change” has its roots in principles of claim and issue preclusion:

The ‘material change’ standard ensures that principles of res judicata are not violated by requiring that such a showing must be made any time a party to a custody or visitation order wishes to make a contested change, even if it is to an arguably minor term. The requirement is intended to preserve stability for the child and to prevent relitigation of the same issues. See Domingues v. Johnson, 323 Md. 486, 498, 593 A.2d 1133, 1139 (1991).

Simply put, in determining whether a modification of custody is appropriate, the Court must recognize “the child’s need for continuity. Basically, if a child is doing well in the custodial environment, the custody will not ordinarily be changed.” The best interests of the children are presumed to be “a continuation of custody.” Levitt v. Levitt, 79 Md. App. 394, 397, 556 A.2d 1162, cert denied, 316 Md. 549 (1989).

Many times parents have concerns regarding the other parent’s parenting skills, desires  additional time with their child or even have concerns with their child’s behavior and academic performance, but is that enough to modify custody? The answer is “it depends.” For instance, in McMahon v. Piazze., the Court declined to modify custody where it found that the only changes were to be the minor child’s home life, age and maturity. However, changes such as a parent’s relocation, a child’s slip in grades or other identifiable harm, may rise to the level of a change in circumstances warranting a modification of custody.

Do you have a will?

Even if you never get around to consulting a lawyer to prepare a will and have it properly executed, virtually every state in the union has taken the trouble to write one for you.  Unfortunately, the legislatures who created  the laws of intestacy don’t know you, don’t know your children, don’t know your crazy “ex”, don’t care if your only sibling is a homeless, unemployed, or deadbeat.  They create a “one size fits all” set of rules that direct where your assets go and in what percentages without regard to any of those details of your life.

Read on to hear what the State of Maryland has planned for you if you reside here when  “ the end” comes  and some of the challenges your survivors may face:

Generally speaking, if you die without a Will and you are married, your spouse gets only ½ of your assets; the rest goes to your children in equal shares regardless of their age or individual needs.  No spouse?  All of it goes to your kids.  No kids either?  All to your parents.

That distribution plan doesn’t sound so bad until you look more closely at some possible unintended consequences that could apply to any family:

Maryland treats all your children equally – children from prior marriages, adopted children, adults (over the age of 18) and minors. If you happen to have the family home titled in just your name, your spouse will have to get permission from a Court appointed guardian of any minor children for permission to sell the house, refinance , it or use their half of any proceeds to buy a new home.  This could include an ex-husband or wife who as the qualified guardian of a child from a previous marriage ends up with control of the purse strings.  Imagine the joy your new widow will experience  having to deal with your ex-wife in a battle over proceeds from a sale of the former marital home.

In addition, since Maryland treats all your children equally, your adult children who may have gotten the benefit of an Ivy league education funded by you in earlier years get the same dollar amount of your estate as the 10 year old in elementary school, or a severely disabled child.

No spouse and no children – everything goes to your parents, regardless of whether they are multi-millionaires or institutionalized with severe dementia and your death leaves that homeless, unemployed, and deadbeat of a brother as the custodian of their funds.

It is estimated that only 60% of individuals over the age of 50 years have wills, 45% of these people have powers of attorney, 30% of these people have advance medical directives, and only 23% have living trusts. These statistics indicate that most people fail to create a comprehensive estate plan, and of those who have completed their estate planning, odds are they haven’t reviewed or updated their plans in years. Prior planning produces positive results upon disability or death.

Failing to plan is planning to incur unnecessary problems, delays, taxes, and expenses.

It’s your first day on a new job. You are shown to a desk or conference table and the office manager places a large stack of papers in front of you. Tax forms, personal information forms, and the Employee Handbook. The Handbook can be small or large, and most of the time no one reads it. Nearly all of the time, however, a new employee will sign a piece of paper saying that he or she has read the handbook and understands all that is contained in the handbook. After this point, few employees ever think about what is actually written in the handbook until something bad happens. And sometimes not until it’s too late.

The Family and Medical Leave Act is available to qualified employees to allow them unpaid time off to care for themselves and qualified family members with serious health problems, the birth and adoption of children, and several other circumstances. The FMLA prohibits an employer from interfering with a qualified employee’s ability to take FMLA leave, and from discriminating and/or retaliating against someone who exercises his or her FMLA rights. Visit the Department of Labor’s website on the FMLA for more specifics, available here.

In the case of serious health problems with the employee or the employee’s covered family member (parents, spouses, and children), the FMLA provides protected leave for both situations when the need for leave is foreseeable and unforeseeable. One of the most commonly litigated issues is whether or not the employer had notice that the employee needs to take FMLA leave.

This is where the handbook comes in.  Many, if not all, employers have call-in policies for sick leave and/or reporting tardiness or absenteeism from work.  These call-in policies often explain who you need to call (manager, office manager, a 1-800 number to a corporate headquarters), when you need to call (e.g., within the first two hours of the employee’s shift), and the method of communication (e.g., telephone call, e-mail, etc).

The FMLA’s purpose is to balance an employer’s need (and arguably the right) to know whether its employees are showing up to work or just quitting by being a no-call/ no-show, with the employee’s need to sometimes be out of work to deal with personal and family emergencies. The FMLA provides covered employees with this flexibility, but apart from pre-approved leave, the FMLA does not allow an employee to just go silent for days on end and then show back up to work to find his job still waiting for him. If an employee needs to use unforeseen FMLA leave, the employer needs to know this and that communication is the employee’s responsibility.  This does not mean that the employee has to use the magic words, “I need FMLA leave.” An employee doesn’t even need to know that FMLA exists! This is well established in the regulations and case law.[1] What this does mean is that, as a general rule, unless there are extreme extenuating circumstances, the employee needs to comply with the employer’s call-in policies.[2] Even if an employee otherwise would qualify, an employer has the legal right to deny FMLA leave when the employee does not follow the standard leave request and call-in policies.[3]

Here is an extremely important point: merely calling in “sick” will not be sufficient information to trigger FMLA protections.  The regulations specifically say so: “Calling in ‘sick’ without more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.”[4] FMLA is not to be used for run of the mill ailments. It is for serious health conditions and other qualifying circumstances. When calling-in, the employee is obligated to provide the employer with enough information so that the employer can reasonably know that FMLA leave applies to this situation.  For example, calling-in and telling your employer “I’m just been admitted to the hospital and I will be here for three days,” will in most cases provide enough information to the employer that the employee needs FMLA leave, not just sick leave. Be careful though – if your employer requires that you call in every day you are out, even though you told them the duration of the hospital stay in the initial communication, you may still be required to follow the call-in procedures for each subsequent day.

If the circumstances are such that either the employee himself cannot call, and there is no other qualified representative (e.g., spouse, adult family member, or other responsible person) that can do so on his behalf, the regulations allow that the employee follow the employer’s call-in procedures as soon as practicable.[5]  What does “practicable” mean? It means that “it generally should be practicable for an employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave.”[6]

For example, the Tenth Circuit Court of Appeals in Bones v. Honeywell International, Inc., found that the employer did not interfere with the employee’s exercise of FMLA rights where the employee did not “show up to work for three consecutive days and [failed to] notify her supervisors of those absences.”[7] Where an employer’s call-in and sick leave request policies do not infringe on FMLA rights by being overly burdensome, employees must follow those policies even when faced with a personal or familial emergency covered by the FMLA.  The Honeywell case explained that because of this AWOL period the employee would have been terminated “irrespective of whether or not these absences were related to a requested medical leave” as the “request for an FMLA leave does not shelter [the employee] from the obligations, which is the same as that of any other Honeywell employee, to comply with the Honeywell’s employment policies, including its absence policy.”[8]

So what does this mean for the employer and the employee? Employers may be able to reduce the risk of litigation if they provide specific call-in and absence policies that do not run afoul of FMLA rights, and have policies that are clearly delineated, easily accessible to employees, and applied evenly to all employees.  For employees, this means that you should take the time to read these policies early and often. An employee should assume that if an employer has taken the time write out these policies, the employer is willing to enforce the policies.  This does not mean that an employee who has not followed the policy and whose FMLA rights were violated does not have a claim, but this is a situation that is best to avoid if possible.

In short, READ THE HANDBOOK, as your employer created it for a reason.

On the heels of the Supreme Court striking down key parts of the Defense of Marriage Act (DOMA), including holding that in states where it is legal for same-sex couples to marry, the government must extend same sex couples federal health and social security benefits, and extending tax benefits to same same-sex couples, Attorney General Eric Holder has announced that the Federal Government will extend married couples equal protection under the law.

One of the many victories of this announcement is that couples in same sex marriages will be allowed to jointly file for bankruptcy and domestic support obligations, such as alimony owed to a former same-sex spouse, can no longer be discharged through bankruptcy proceedings.

Generally, domestic support obligations are not dischargeable in bankruptcy but, in the past, the federal government could challenge joint bankruptcy filings in states that did not recognize same-sex marriage and the debtor spouse could seek to avoid their support payments on the grounds that their state did not recognize same-sex marriages and thus, those pesky support payments, were not support payments and were therefore dischargeable.

However, under Chapter 11 and Chapter 13 bankruptcy proceedings, the debtor spouse, in any marriage, may discharge certain alimony payments during bankruptcy proceedings where the alimony payment has been assigned to a third party or where the debts, although written as alimony, are not for spousal support (such as a penalty for late support payments). A debtor spouse may also be able to reduce their debt payments under a Chapter 13 bankruptcy proceeding. Although, the supported spouse should also be heartened to hear that while the supporting spouse may be granted an automatic stay of enforcement by creditors, the stay does not apply to proceedings to determine or enforce the payment of child support or alimony (except that it may stay proceedings to determine how to divide up  marital property mad may require the permission of the bankruptcy court to proceed). Bankruptcy may also affect the ability of the supporting spouse to pay alimony and the need for a spouse to receive alimony, both of which are major factors used by the Court in determining whether an award of alimony is appropriate. Pursuant to the Maryland Family Law Article §11-106(b), the Court shall consider all the factors enumerated below, to determine a fair and equitable award of alimony:

(1) the ability of the party seeking alimony to be wholly or partly self-supporting;

(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;

(3) the standard of living that the parties established during their marriage;

(4) the duration of the marriage;

(5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;

(6) the circumstances that contributed to the estrangement of the parties;

(7) the age of each party;

(8) the physical and mental condition of each party;

(9) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;

(10) any agreement between the parties;

(11) the financial needs and financial resources of each party, including:

(i) all income and assets, including property that does not produce income;

(ii) any award made under §§ 8-205 and 8-208 of this article;

(iii) the nature and amount of the financial obligations of each party; and

(iv) the right of each party to receive retirement benefits; and

(12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health-General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.

The Court must demonstrate that it has considered all of these factors, including factors that are not expressly listed in this section but which the Court deems “necessary and appropriate” in determining an award of spousal support.

If you are concerned about how your or your former spouse’s bankruptcy proceeding may affect your divorce proceeding, you should consult with your attorney immediately to discuss your rights.

On November 19, 2013, the North Carolina Court of Appeals rejected the University of Maryland’s (“UM”) attempt to dismiss a lawsuit over the university’s planned migration from the Atlantic Coast Conference (“ACC”) to the Big Ten Conference later this year.[1]  In 2012, the ACC brought suit against UM in North Carolina state court seeking a declaratory judgment that a withdrawal payment provision in the ACC Constitution was a valid liquidated damages clause enforceable against the university.

  The ACC alleged that UM’s withdrawal from the ACC subjected the university to a mandatory penalty in the amount of $52,266,342.

In January 2013, UM filed a pre-answer motion to dismiss the ACC’s complaint for lack of personal jurisdiction.  Specifically, the university asserted that the trial court lacked jurisdiction based on the sovereign immunity of the State of Maryland.  Following briefing and a hearing on the matter, the trial court denied the UM’s motion.  In so doing, the trial court refused to extend comity (the practice among political entities to mutually recognize legislative, executive, and judicial acts) to UM’s claim of sovereign immunity in North Carolina’s courts.

That very month, The Board of Regents of the University System of Maryland unsuccessfully attempted to have the ACC’s lawsuit dismissed in the Circuit Court of Prince George’s County, Maryland on the ground that the courts of North Carolina enjoy “no jurisdiction over the sovereign State of Maryland and its public universities.”[2]  Judge Paul Davey stayed the matter pending the outcome of the North Carolina litigation.

Shortly thereafter, UM filed a notice of appeal from the order denying their motion to dismiss.  The ACC responded with its own motion to deny UM’s request for a stay of the trial court’s proceedings and asked the trial court to retain jurisdiction.  The trial court granted the ACC’s motion to retain jurisdiction.

In April 2013, UM filed a petition for the issuance of a writ of supersedeas in the North Carolina Court of Appeals seeking a stay of the trial court’s proceedings pending resolution of UM’s appeal.  The appellate court allowed the petition and stayed all proceedings in the court below pending the review of the interlocutory appeal.

UM argued that the common law principle of comity should apply.  In essence, UM argued that, as an agency of the State of Maryland, due the protections of sovereign immunity, it was immune from litigation in the State of Maryland, and, therefore, North Carolina, out of deference to the laws of its sister state, was also deprived jurisdiction over it. As without jurisdiction, a court cannot entertain a lawsuit.  The court of appeals agreed only in part.  It held “that rights acquired under the laws or judgments of a sister state will be given force and effect in North Carolina if they are not against public policy.”[3]  In other words, the court was not required to determine if Maryland law entitled UM to sovereign immunity.  Instead, the issue of consequence was whether North Carolina law afforded UM sovereign immunity.

Despite the fact that the court of appeals had recently extended sovereign immunity to the University of Virginia and dismissed it as a defendant in a civil case[4], the panel determined that an extension of immunity to UM would violate public policy.  Unlike the University of Virginia matter, a case which sounded only in tort, UM was alleged to have breached a contract.  The North Carolina Supreme Court, in the context of the sovereign immunity doctrine, previously used public policy to effectively waive the State of North Carolina’s sovereign immunity in causes of action grounded in contract.[5]  Relying on that precedent, the court of appeals held:

Accordingly, because the public policy of this state does not allow the State of North Carolina to avoid its obligations in contract, we cannot extend comity to Defendants’ claim of sovereign immunity.  Furthermore, because we find that the extension of comity in this case would violate public policy, we decline to consider—as would be required if we had reached the opposite conclusion—whether Defendants would be entitled to sovereign immunity as a matter of Maryland law.[6]

Defeated on appeal, but not in spirit, UM retaliated by filing a $157 million counterclaimagainst the ACC earlier this month in which it alleged, inter alia, that ACC member universities attempted to recruit two Big Ten universities to join the ACC.  UM’s counterclaim represents the latest punch thrown in this prolonged legal battle.

(Monopoly® is a registered trademark of Parker Bros., and is produced by Hasbro)

Two bills in the Maryland legislature could affect which estates would be subject to Maryland estate tax in the future and should be carefully watched by estate and tax attorneys and those Marylanders looking to protect their estate assets.

Back in 2001, the federal government decided to increase the exemption for estate taxes. Prior to that time, the exemption was $1,000,000 and any net assets in excess of this amount were subject to a hefty tax. Over the next 10 years the new exemption amounts would increase from $1,000,000 to $5,000,000. In order to help offset the imminent loss of revenue, the federal government cast aside the “state death tax credit,” a dollar-for-dollar tax credit for state death taxes paid. A portion of the federal estate tax was set aside and paid directly to the state in which the decedent resided.

In response to the potential loss of revenue that would come with the abandonment of the state death tax credit, the Maryland legislature, between 2002 and 2006, passed a series of new estate tax laws. These new laws effectively reinstated the Maryland estate tax that would have otherwise been paid had the federal estate tax laws remained as they were in 2001. Thus, Maryland estate tax was, and still is, applied to net estate assets in excess of $1,000,000.

There are voices across the state that have, for many years, screamed that the estate tax laws in Maryland are the impetus for many wealthy Marylanders to flee the state. Those individuals point out that the bordering states of Virginia and Delaware have both abandoned the estate tax and, given their proximity to Maryland, are very attractive to Maryland millionaires looking to avoid the potential burden imposed on their families that would result if they were to pass away while residing in Maryland. And, if you don’t mind traveling a little further, you could move to Florida, to avoid estate taxes, income taxes and below-zero wind chills brought here by the “polar vortex.” This point of view is bolstered by reports such as the Tax Foundation’s review of state to state migration[i] that showed that between 2000 and 2010, Maryland lost $5.5 billion dollars in taxable income from net migration. During that same period, only seven states suffered higher domestic migration losses in taxable income.

There are many, however, that argue that most people leaving Maryland are doing so for other reasons, like warmer weather, housing prices or other personal reasons. These voices point to opposing studies that show Maryland is a desirable place for millionaires to reside. For the third consecutive year, Maryland ranked first in Phoenix Marketing International’s annual ranking of millionaires per capita,[ii] moving up the from the second place position it held from 2007 through 2010. This would seem to show that at least some millionaires hold an affinity for Maryland despite the current status of its estate tax. Or, they simply haven’t moved yet.

Well, the flight from Maryland that may or may not be driven by the Maryland estate tax, has not gone unnoticed by the Maryland legislature. There are currently two bills moving through the legislature that would bring the Maryland estate tax exemption back in line with the federal estate tax exemption amount.

Senate Bill 163 (2014) proposes tying the Maryland exemption to the federal exemption amount effective for anyone dying after December 31, 2013.  This bill has been introduced during previous legislative sessions and has never garnered enough support to pass.

The other bill, Senate Bill 155 (2014) proposes a staggered increase in the exemption amount; beginning with an increase from $1,000,000 to $2,000,000 for individuals dying in 2014 and culminating in 2017, when the Maryland exemption amount will fall in line with and continue to follow the federal exemption amount. Unlike Senate Bill 163, Senate Bill 155 has received significant bi-partisan support. It is sponsored by Senate Minority leader, David Brinkley, and is co-sponsored by Senate President Thomas V. Mike Miller, Jr., among other co-sponsors. This bill would seem to have the best chance of passage of any proposed since the current laws were enacted; however we will have to wait and see.

Social media, like Facebook, Instagram, and Twitter, allow people to connect with friends and family, sharing information, photos, and other life updates. For some, the updates are occasional; for others, social media is a platform to provide others with a minute-by-minute chronicle of their daily lives.

Let’s follow our friend “@KrissyK”[1] for a day:

 @KrissyK “Woke up late. Running around like crazy. I hate mornings that I can’t seem to get it together #letsgetthisfridaystarted” – via mobile from Laurel, MD at 8:15 a.m.

 @KrissyK “Uuuugh, late AND traffic. Finally made it to work. Boss handed it to me AGAIN.” – via web from Greenbelt, MD at 9:30 a.m.

@KrissyK “Lunch can’t come soon enough. Hitting up that Chipotle, ya dig?” – via mobile from Greenbelt, MD at 12:30 p.m.

@KrissyK “Food coma. Don’t know how anyone is supposed to be productive after this.”

[2]

– via web from Greenbelt, MD at 1:45 p.m.

@KrissyK “So pissed at John right now. I don’t know where he gets off thinking he can act like that.” – via mobile from Greenbelt, MD at 2:30 p.m.

@KrissyK “Finally out of work and ready to get it onnnnn. #girlsnight” – via mobile from Laurel, MD at 6:15 p.m.

@KrissyK “Starting this night off  right!#shotsonshot”

[3] – via mobile from Laurel, MD at 7:30 p.m.

            @KrissyK “Gettin faddedddddd at Lux, suckers. #pursebeers”– via mobile from Washington, DC at 9:02 p.m.

@KrissyK “Club can’t even handle me right now.”

 – via mobile from Washington, DC at 9:56 p.m.

@KrissyK “Top shekf for thrsr girkoels. #lovemahgirls” – via mobile from Washington, DC at 10:30 p.m.

 @KrissyK “Wastyyyyyy face. #gohsrdorgihomr”

[5] – via mobile from Washington, DC at 1:30 a.m.

 “Over sharing” on social media can do more than annoy your Facebook friends and Twitter followers. Social media, such as your Facebook and Twitter posts, may be admissible (meaning used against you as evidence) in court. But when and how? Let’s say our friend @KrissyK was later involved in a drunk driving accident in which, tragically, one her friends was killed. @KrissyK’s Twitter posts reveal what she did throughout the day, her location at various times, whether she posted from a computer or mobile device, and, in some cases, who she was with. Would @KrissyK’s posts be admissible as evidence against her? The now ubiquitous social media presents a unique set of evidentiary challenges with inherent reliability issues. The Maryland Courts continue to develop guidelines for admissibility of social media evidence. In Independent Newspapers, Inc. v. Brodie, the court described social media as “sophisticated tools of communication where the user voluntarily provides information that the user wants to share with others.”[6] Social media, however, has obvious reliability and authenticity issues – how can you be sure that the profile purporting to be “@KrissyK” was made by the defendant? How can you verify that it is regularly maintained by the defendant?  And how can you verify that the post in question was made by the defendant and not a friend, a hacker, or another unauthorized user? In Griffin v. State, the Court of Appeals aptly noted that, “Anyone can create a MySpace profile at no cost, as long as that person has an email address and claims to be over the age of fourteen.”[7] The Court elaborated:

 The identity of who generated the profile may be confounding, because ‘a person observing the online profile of a user with whom the observer is unacquainted has no idea whether the profile is legitimate.’ The concern arises because anyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password…[8]

 Fictitious profiles, profiles for pets, and, more nefariously, profiles to frame another or divert law enforcement attention from an individual have all been created. Like any evidence, social media evidence must have sufficient indicia of reliability to be admissible. In Griffin v. State, an individual by the MySpace name of “Sistasouljah,” who purported to be born on 10/02 /1983 and from Port Deposit, MD posted:

 “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!”

 Prosecutors believed “Sistasouljah” was the defendant’s girlfriend and sought to introduce the MySpace print outs into evidence. The Griffin Court looked to, inter alia, its decision in Dickens v. State[9] and Judge Grimm’s opinion in Lorraine[10] to consider its admissibility, specifically considering authentication of the purported statements under Md. Rule 5-901. Dickens and Lorraine both looked to circumstantial evidence to authenticate digital media. In Dickens v. State, the court found sufficient circumstantial evidence to authenticate, and admit into evidence, text messages, despite the fact that messages did not have a “sender” phone number and/or could not be directly linked to the defendant. The content of the messages included information and “exceedingly small number of persons,” including the defendant, would have known and found this sufficient to authenticate the messages as statements of the defendant. In Lorraine v. Markel American Insurance Company, The Honorable Paul W. Grimm of the Southern District of Maryland considered the admissibility of various ESI, including web postings:[11]

 One commentator has observed ‘[i]n applying [the authentication standard] to website evidence, there are three questions that must be answered explicitly or implicitly. (1) What was actually on the website? (2) Does the exhibit or testimony accurately reflect it? (3) If so, is it attributable to the owner of the site?’

 The same author suggests that the following factors will influence courts in ruling whether to admit evidence of internet postings: ‘The length of time the data was posted on the site; whether others report having seen it; whether it remains on the website for the court to verify; whether the data is of a type ordinarily posted on that website or websites of similar entities (e.g. financial information from corporations); whether the owner of the site has elsewhere published the same data, in whole or in part; whether others have published the same data, in whole or in part; whether the data has been republished by others who identify the source of the data as the website in question?’ [12] Both Dickens and Lorraine required substantial external indicia of reliability before the social media could be admitted. In accord with these and other decisions, the Griffin Court found insufficient evidence to authenticate the “Free Boozy” message as a statement of the defendant’s girlfriend:

 [T]he picture of Ms. Barber, coupled with her birth date and location, were not sufficient ‘distinctive characteristics’ on a MySpace profile to authenticate its printout, given the prospect that someone other than Ms. Barber could have not only created the site, but also posted the ‘snitches get stitches’ comment. The potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion  that a printout of an image from such a site requires a greater degree  of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that Ms. Barber was its creator and the author of the “snitches get stitches” language.[13]

 In doing so, the court cautioned that, “we should not be heard to suggest that printouts from social networking sites should never be admitted,”[14] and suggested that proper authentication may come via examination of the purported publisher, examination of internet history, identification of the publishing IP address, or subpoenaing the social media network itself for additional identifying information and indicators of ownership.[15] Although still developing, Maryland courts have indicated that substantial indicators of reliability are required to authenticate and admit[16] social media evidence. With satisfactory evidence that the defendant was in fact the sender, that she created and/or maintains the Twitter handle in question, and that she published the posts in question, her Tweets likely are admissible as evidence against her.

A common question in many Maryland divorce cases involving clients of the Islamic faith is, what happens to my Islamic Mahr, Mehrieh, Mehr (a.k.a, dowry) during my Maryland divorce?

Many immigrants who live in Maryland wed overseas in their home countries. The Middle Eastern immigrants usually wed under the Islamic tradition. In the Islamic tradition, at the time of marriage, the couple or the couple’s family negotiate what is called the Mahr, Mehrieh, Mehr, most commonly known to Americans as a dowry, at the time of marriage.

A dowry in the Muslim faith is a gift, or a promise of a gift, to the wife by the husband. It is negotiated shortly before the couple’s marriage and is often in written form. It is often in the form of gold coins, cash or land. It is not given to the wife at the time of the marriage, but the wife has the right to ask for it at any time during the marriage or upon the dissolution of the marriage.

In many Middle Eastern countries,  the rights of women upon marriage breakdown are much fewer than those of men. Upon dissolution of the marriage, the wife often receives little from the division of family assets and often little to no spousal support.  The dowry  serves as a form of security or money the wife can  use in the future for her own benefit upon marriage breakdown. Additionally, in many Middle Eastern countries, it is common that only the husband can initiate and file for divorce.  The exception to this general rule allows a wife to file for divorce only when  the husband physically or mentally abuses her or is addicted to alcohol or drugs. In situations where the wife wants to divorce the husband for reasons other than those listed above, such as incompatibility (i.e., “irreconcilable differences”), the wife can use her dowry to negotiate a divorce. This means that the wife can forgive or waive her dowry in return for the husband’s permission to divorce. So, the dowry is not merely a gift, has a different purpose overseas, and is used in ways which cannot be used in Maryland or other U.S. States.

The dowry is often a large amount to show the love, affection, and commitment of the groom to the bride at the beginning of the marriage. The dowry is promised to the wife at the beginning of marriage regardless of whether the husband actually has or is going to be able to have the dowry at the time the wife asks for it, or at the time of marriage breakdown. Needless to say, it creates difficulties, unrealistic expectations and legal ramifications for the husband if he is not able to pay it upon the wife’s request.  For instance, an immigrant from Iran, who promised his wife 70 gold coins at the time of the marriage who then immigrated to the United States and now works a blue color job cannot possibly afford to pay the wife’s dowry.

These problems compound when the wife decides to ask for her dowry from the husband at the time of marriage breakdown in Maryland. The wife, on top of often having a default entitlement to half (50%) of the family assets (in cases of long term marriages), spousal support or possibly child support, will ask for her dowry. This often means that the husband would receive less than 50% or sometimes none of the family assets he would otherwise be entitled to receive under Maryland family law.

Numerous problematic situations can arise concerning the Mehr. For example, sometimes the amount of dowry is larger than the entire of pool of family assets; sometimes the amount of dowry is not even negotiated by the husband and wife, but by their families; sometimes the dowry is not in written form, leading to disputes as to what exactly is owed; sometimes it is a ploy for the wife to extort the husband by marrying him; or sometimes the dowry is agreed to 20 or 30 years before divorce when the husband’s or familial financial situation is significantly different. The problems are vast and never ending.

Maryland courts often struggle to determine whether they should respect religious traditions of a family or to create a fair outcome with regards family assets and obligations of spouses towards one another upon marriage breakdown.

In Part 2 of this blog post, I will discuss the ways in which Maryland or other U.S. courts have dealt with the dowry at the time of marriage breakdown.

While in law school, I was often asked what area of law I was interested in practicing. Inevitably someone would ask me if I was interested in becoming a family law attorney.  My almost instantaneous response was, “Oh no! Too much drama!”  Instead, I chose to practice employment law – an area that I naively believed would have fewer emotions involved than Family law.

But it turns out I was wrong.

Right up there on the things-that-make-people-highly-emotional list along with a bad marriage or custody battle are problems in the working world: being fired, perceiving your employer as treating you badly or unfairly, not getting leave for being sick or a needed medical treatment, and every other conceivable problem that can arise in the work place. Most of us prefer to work in an environment where we can thrive, where our accomplishments are recognized, we are viewed as valued contributors, and where we have a bright future.  And so when the specters of unfairness, bullying, and lack of appreciation take over the work place, it is possible to understand how quickly people jump to the conclusion: “I work in a hostile work environment. I want to sue.”

But do you really work in an illegal hostile work environment? Most of the time, the answer is “No.”

The first thing everyone needs to know is that you do not have a claim based on “hostile work environment” alone.  It is not a standalone cause of action.

This is what I call the “Jerk Boss Rule”—while it is probably not good business sense for your boss (or coworker) to be a jerk, it is not necessarily unlawful.  Title VII (the federal law prohibiting workplace discrimination) and its state and local counterparts[1] do not guarantee a workplace free of troubles.  Instead, these statutes prevent employers from taking discrimination motivated by the employee’s status in a protected class: race, gender[2], national origin, color, religion, pregnancy,[3] disability,[4] or because of age.[5] So, the actions of the “jerk boss” that imposed an adverse employment action against the employee must tie back to the employee’s status in one of these protected classes.

In turn, the law only recognizes the existence of a hostile work environment when the hostility is founded on the employee’s status in a protected class.  In order to meet the first legal standard of proving a hostile work environment, an employee must prove that: (1) the harassment was unwelcome; (2) was based on the employee’s status in a protected class; (3) the harassment was “sufficiently severe and pervasive enough to alter the conditions of [his or] her employment and create an abusive atmosphere”; and (4) is imputable to the employer.[6]

The first factor in this test is usually pretty easy to meet.  If you’re complaining about what’s going on at work, it’s most likely behavior that you do not welcome.  It’s the next several areas where things get tricky.

The second step requires an employee needs to show that the harassment was linked to the employee’s status in the protected class.  In other words, if your response to the question “Why do you believe your boss treated you this way?” is anything other than “it’s motivated by my race, gender, national origin, color, religion, pregnancy, disability, or because of age,” you might not have the foundation on which to bring a hostile work environment claim.[7]  So in this respect, what your boss does to you may not be as important as why your boss treats you a certain way or took certain actions against you.

The third factor is often where things fall apart.  It is not enough that the employee subjectively perceives the environment as hostile and abusive. An employee must demonstrate that the actions in question are both subjectively, and objectively hostile and abusive, meaning that “a reasonable person [in the same position] would have found the environment” abusive.”[8]  So, what is “severe and pervasive?” Well, most of the time (but not always)[9] it’s safe to assume that a single or just a few isolated incidents are not enough to constitute “pervasive” harassment.[10]  As for severity, the Fourth Circuit Court of Appeals ruling in Patterson v. County of Fairfax does a good job explaining this requirement .[11] In that case, the plaintiff alleged “repeated incidents of verbal harassment, . . . also incidents in which her fellow officers sprayed mace in her car, on her chair, and directly into her face. Additionally, she claimed that her fellow officers intentionally interfered with her ability to call for back-up, and occasionally failed to respond to successfully transmitted requests.”[12] It was these actions that the court found “demonstrate[d] a hostile work environment for purposes of Title VII.”[13]

By contrast, the Third Circuit Court of Appeals affirmed the District Court’s ruling that a hostile work environment did not exist where many of the claimed hostile actions fell within the scope of common managerial functions.[14]  In Fichter v. AMG Res. Corp., the plaintiff’s evidence to support her hostile work environment included allegations of her supervisor:

(1) telling her she should get a job closer to home, (2) telling her she was disrespectful if she disagreed with him, (3) telling her to turn more work over to [male coworker #1], (4) wanting her work done more quickly so that [her supervisor’s] work was not held up, (5) asking [male coworker #1], but not Fichter, to do work for [her supervisor] even though [male coworker #1] worked for Fichter, (6) reassigning a female employee who previously worked with her to another position and leaving her with twice the workload, (7) not giving her a raise in four to five years, (8) requiring that she advise [her supervisor] if she would be arriving late or leaving early, (9) asking her for information but leaving the office without telling her before she could provide it to him, (10) keeping track of her vacation time, (11) providing her with little notice when auditors were coming, (12) asking for her opinion, but doing what he wanted if he did not like her answer, (13) not compensating her when she filled in for [male coworker #2], and (14) not respecting the extra work she performed ‘unless it benefitted [her supervisor].’[15]

So, what should you do if you think you’re being subject to a hostile work environment? Try to take a step back and think objectively about what is going on and the underlying reasons for the hostility.  Then, seek a legal opinion.  Every single case is different, and so it is important to have a legal professional examine the facts in your individual situation and provide an evaluation.

When parties divorce, there are always unforeseen circumstances that arise in the future.  It’s not uncommon to experience substantial change in life events such as a change in career (particularly if you are in the military or work for a corporation that is prone to relocating personnel), or potential new spouse (even when your client “swears” he or she will never date again – don’t be surprised!), or other circumstances leading to a relocation.

Your family law attorney will try and anticipate any potential circumstances and either address them in your separation agreement (if you and your spouse agree to enter into one) or with the Court. However, relocating with children after a divorce is not usually foreseeable and often leads to subsequent litigation that can occur months or even years after a divorce is finalized.

Relocation cases are very challenging, both to the parties, the Courts, and especially for any mental health professionals working with the children. There are many logistics to take into consideration. Will the relocation be cross-country or a car-drive away? Are the children old enough to travel unaccompanied? What will the cost of transporting the children entail?  If accompanied by an adult, will the adult stay over at the destination for the weekend?  Should the non-custodial parent have the majority of the holidays and school breaks?  What is an appropriate amount of time for the summer and will the custodial parent be willing to forego many of these non-school times simply to relocate.

While family law attorneys litigate for our client’s interests in a marital home, bank accounts, retirement accounts, and equity in businesses, nothing is more precious, hard-fought and polarizing as determining custody of children, particularly when one parent is faced with greatly reduced access in a relocation case.

A parent’s rights and ability to raise his or her children are extremely important.  The Supreme Court has termed the right to rear one’s child “essential.”[1] The right to rear one’s child constitutes a right “far more precious . . . than property rights.”[2] The interest of parents in their relationship with their children is a fundamental liberty interest protected by the Fourteenth Amendment to the United States Constitution.[3] A parent has a recognized right to the companionship, care, and custody of her or his minor children that she or he cannot be deprived without due process of law.[4] Article 24 of Maryland’s Declaration of Rights protects this same liberty interest.[5]

To determine custody in Maryland, the trial court is required to determine the best interests of the minor child.[6]  The term “best interests” is commonly used by lawyers and judges in the Courtroom. In Montgomery County v. Sanders, the Court of Special Appeals set forth a list of factors that a trial court should consider to determine the children’s best interests.[7]  Maryland Appellate Courts have held that “[t]he respective interests of the parents are relevant … and should be considered by the court; but the interests of the child take precedence over any conflicting interest of either parent.). . . . Certainly, the relationship that exists between the parents and the child before relocation is of critical importance.”[8] 

The trial court typically looks to protect the consistency and stability of the children.  While not specific to relocation, the following cases demonstrate an appropriate exercise of the trial court’s discretion.  In Levitt v. Levitt, the best interests of the child are presumed to be “a continuation of custody, recognizing the importance of a child’s need for continuity.”[9] In Roginsky v. Blake-Roginsky, the Maryland Court of Special appeals upheld the trial court’s award of custody to the appellee and mother, Ms. Blake-Roginsky.[10] The trial court awarded custody to the mother as she had “been the primary custodian and caretaker for a significant period of time prior to trial,” because the “parties could not cooperate, joint custody was not realistic,” and “because the child was functioning well, citing consistency of environment as a primary reason.” [11]

Any party considering a relocation should first and foremost, should consider these factors, strongly consider any impact the relocation may have on their children, and try to determine a reasonable plan to keep the children as involved with the non-custodial parent as possible.  New technology such as iPhones, Facetime, and Skype permit a level of face to face access that did not exist in recent years. The trial court will also want to hear testimony and evidence of the proposed home, schools, extracurricular activities and other information in order to form its determination as to whether to permit a relocation and determine an appropriate access schedule.

The 2013 legislative session brought about some positive changes in the area of taxability of indemnity deeds of trusts (otherwise known as indemnity mortgages), supplemental instruments, and refinance instruments.  This new law applies to any of these types of financial instruments recorded on or after July 1, 2013.

Anyone who has ever had to pay recordation and transfer taxes in Maryland knows first-hand how costly it can be to record the mortgages/deeds of trust required to secure repayment of a loan in this State.  This is because Maryland is one of the most expensive states in the union, where the average transfer costs adds as much as 2-3% to the transaction costs.  Although it varies from county to county ($5.00 per thousand dollars in Baltimore, Howard, and Prince George’s Counties as the lowest ends, and up to $12.00 per thousand dollars for Frederick and Talbot Counties as the highest), this new law will help ease that burden for borrowers, which comes as a much needed relief in these still struggling economic times.

The most notable change is the new legislation that raises the threshold to trigger taxability of indemnity deeds of trusts (or IDOTs).  The previous law triggered taxability of an IDOT when the loan being guaranteed was $1 Million Dollars or more.  Now, the threshold is $3 Million Dollars.  However, it should be noted that a series of loans that are part of the same transaction are considered one loan for purposes of determining the threshold.  This means you cannot record multiple IDOTs for a single transaction in order to escape the taxability threshold as the amounts on all of the documents will be calculated together to determine taxability.  In addition, taxability is triggered on the amount of the loan whereas the collection of the tax is based on the amount of debt secured by the IDOT.  It should also be noted that some counties require specific IDOT Affidavits to be submitted with the recording adding to the complexity of the paperwork for settlement practitioners.  These changes can be found in Maryland’s Tax-Property Article § 12-105.

This legislative session has also resulted in new recordation tax exemptions for refinances of commercial property.  Previously, this exemption was only available for borrowers refinancing their principal residence.  Now, the legislature has expanded the exemption allowing for recordation tax exemptions on commercial properties and other residential properties that are not principal residences.  This will allow Maryland borrowers to refinance their investment properties at lower interest rates without being hit by a massive tax bill during recordation of the new mortgage.

In order to qualify for this exemption, you must be the original mortgagor and the tax is based on the difference between the current principal balance (rather than the original loan amount) and the face amount of the new mortgage.  This means if someone is refinancing a property where the original principal balance is greater than the face amount of the new mortgage, there will not be any recordation taxes charged.  It should be noted that all refinances must be accompanied by a refinance affidavit complying with the requirements of §12-108(e) of the Tax-Property Article.  Some counties, like Prince George’s, have their own specific refinance affidavit form which must be used.  In addition, this exemption is not mirrored for county transfer taxes in counties (like Prince George’s) that charge county transfer taxes.  In those counties, the transfer tax is still based on the difference between the original loan amount and the new loan amount.

Finally, the new law has expanded and clarified the definition of a “supplemental instrument” to include instruments that confirm, correct, modify or “amend and restate” existing IDOTs and other lien instruments.  Supplemental instruments are taxable only if the face amount of the supplemental instrument or the amount of debt secured (in the case of an IDOT) exceeds the outstanding principal balance of the existing loan (the same as the refinance tax stated above).  Therefore, if the instrument being recorded is only making “non-monetary” changes to the document, then there is no tax.  These changes can be found in § 12-101 of the Tax-Property Article.

These new laws bring about a much needed change that will allow for more Maryland borrowers to take advantage of the current low interest rates being offered.  Additionally, this will hopefully create a trickle-down effect and alleviate some of the potential foreclosure issues that many Maryland borrowers are facing.  By reducing the recordation taxes and expanding the exemption to more types of borrowers and properties, more borrowers will be able to refinance their properties, thereby lowering monthly payments and allowing people to avoid a potential future foreclosure.

John and Kate are recently divorced and they live in Maryland.  They had three wonderful children during their marriage.  Now the questions arise: should child support be paid, and if so, how much? The goal in calculating child support is to ensure that any children are impacted as little as possible by a shift from one household to two. Child support in Maryland is based on an “Income Shares” model.  This means that a Court will look at the combined incomes of the parents, here John and Kate, and allocate any support to be paid out of that combined “family pot.” For child support purposes, a parent’s “income” is defined by statute.  Md. Code Ann., Fam. Law Section 12-201(b) defines actual income as:

1. “Actual income” means income from any source.
2. For income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, “actual income” means gross receipts minus ordinary and necessary expenses required to produce income.
3. “Actual income” includes: (i)  salaries; (ii)  wages; (iii)  commissions; (iv)  bonuses; (v)  dividend income; (vi)  pension income; (vii)  interest income; (viii)  trust income; (ix)  annuity income; (x)  Social Security benefits; (xi)  workers’ compensation benefits; (xii)  unemployment insurance benefits; (xiii)  disability insurance benefits; (xiv)  for the obligor, any third parent payment paid to or for a minor child as a result of the obligor’s disability, retirement, or other compensable claim; (xv)  alimony or maintenance received; and (xvi)  expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business to the extent the reimbursements or payments reduce the parent’s personal living expenses.
4. Based on the circumstances of the case, the court may consider the following items as actual income: (i)  severance pay; (ii)  capital gains; (iii)  gifts; or (iv)  prizes.
5. “Actual income” does not include benefits received from means-tested public assistance programs, including temporary cash assistance, Supplemental Security Income, food stamps, and transitional emergency, medical, and housing assistance.

Md. Code Ann., Fam. Law Section 12-201(b). Despite being set forth by statute, there are arguments to be made in determining a parent’s income, specifically for a determination of income from self-employment and any “discretionary” items listed in subsection (4). Of note, “gifts” can include expenses paid and support given to a parent by his or her parents, relatives and/or friends.  If payment for an expense (direct) or transfer of money to a parent is consistent, dependable and there is no real expectation of repayment, the Court may include those amounts as “income” of a parent in determining child support. If one parent or the other is not working, the Court may still be able to attribute income to that parent.  This can occur if the Court determines that a parent is voluntarily impoverished, it may determine the parent’s potential income.  “Voluntary impoverishment” can be found when a parent makes “the free and conscious choice, not compelled by factors beyond his or her control, to render himself or herself without adequate resources.”  Goldberger v. Goldberger, 96 Md. App. 313, 327, 624 A.2d 1328 (1992). Once the Court determines both parties’ respective incomes, there are two methods by which the Court may set child support: (a) by using the Maryland Child Support Guidelines, or (b) by engaging in a “needs-based” analysis. If the combined monthly incomes of the parents is $15,000 or less, the Court presumes that the Maryland Child Support Guidelines are correct and will set an appropriate amount of support.  A presumption, however, does not preclude either parent from arguing that an application of the Maryland Child Support Guidelines would be inappropriate. What goes into the Maryland Child Support Guidelines?

1. The parties’ respective gross monthly incomes (including any alimony award);
2. Any health insurance paid on behalf of the children; and
3. The allocation of time the children are with each parent.

What else can go into the Maryland Child Support Guidelines?

1. Other child support awards or alimony being paid by a parent;
2. Work-related childcare costs;
3. Extraordinary medical expenses;
4. Cash medical support; and
5. Any “other” additional expense (this can include such things as private school tuition and costs).

The Maryland Department of Human Resources has an online “calculator” which is available to anyone: http://www.dhr.state.md.us/CSOCGuide/App/disclaimer.do. If the parents’ combined monthly income is more than $15,000, the appropriate amount of child support is within the Court’s discretion.  In such situations, the Court may use an extrapolation, or extension, of the Maryland Child Support Guidelines or may engage in a “needs-based” analysis. A “needs-based” analysis looks at the children’s actual monthly needs to determine an appropriate amount of support.  This can include anything from housing, food and clothing, to private school, tutoring, and horse-back riding lessons.  It is important to remember that a child’s needs may vary drastically from case to case, depending upon the standard of living the family enjoyed prior to separation.