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Barry E. Hill v. Evelyn Hill, No. 544, September Term, 1997

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FAMILY LAW -- CUSTODY -Custody order entered by Superior Court of the District of Columbia was a final order, and Maryland court did not err in requiring a showing of change in circumstances to support a modification of the order.

CHILD SUPPORT -A motion to modify child support filed four days after denial of an identical motion may be treated as a motion to alter or amend; consequently, no hearing is necessary.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 544 September Term, 1997

BARRY E. HILL

v.

EVELYN HILL

Davis, Eyler, Fischer, Robert F. (Ret., specially assigned), JJ. Opinion by Eyler, J. Filed: October 29,1997

Appellant, Barry E. Hill, appeals from a child custody order and an order denying his request to modify child support. Finding no error, we affirm the judgment of the circuit court FACTS Custody Appellant, Barry E. Hill, and appellee, Evelyn Hill, were married on July 10, 1981. Two children, Armond and Alexandra, On August 8, 1992, while

were born as a result of the marriage.

residing in the District of Columbia, the parties separated and have continued to live separate and apart since that time. On November 18, 1992, appellant filed a pleading in the Superior Court of the District of Columbia ("Superior Court"), seeking a determination as to custody of the children and the right of visitation. Appellee filed an answer and counterclaim,

in which she sought custody, legal separation, child support, and the distribution of property. On August 12, 1993, the Superior Court entered a memorandum opinion in which it awarded legal and physical custody of the children to appellee, granted the right of visitation to appellant, and awarded child support to appellee. 1993, the appellant noted an appeal. On August 27,

The decision was affirmed

by the District of Columbia Court of Appeals on May 15, 1995. On August 12, 1993, appellant filed a complaint for absolute divorce in the Superior Court, which was answered by appellee on

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August 26.

No hearings were held in the District of Columbia Both

with respect to the relief requested in those pleadings. parties became residents of the State of Maryland in 1995.

On April 11, 1996, appellant filed a complaint for absolute divorce in the Circuit Court for Montgomery County seeking, inter alia, permanent custody of the children and a determination as to child support. On June 13, 1996, appellee filed an answer and a Trial was On October

counterclaim for divorce, custody, and other relief. held on the custody issue on October 2 and 3, 1996.

28, 1996, in a memorandum opinion, the circuit court granted appellee sole legal custody of the children with shared physical custody in both parties. On November 7, 1996, appellant filed a

motion for reconsideration on the ground that the circuit court had applied the wrong standard. Appellant urged the circuit

court to apply the best interest of the child standard and not the standard applicable to a modification of an award, i.e., whether there was a material change in circumstances. The

motion, supplemented by appellant on November 27, 1996, was denied by the circuit court on February 14, 1997. Child Support On January 24, 1995, appellant filed in Superior Court a motion for modification of the child support obligation contained in its 1993 order. On October 24, 1995, the Superior Court

determined that there was no substantial change to warrant a

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modification of child support.

As mentioned previously, on April

11, 1996, appellant filed a complaint in the Circuit Court for Montgomery County. A hearing on appellant's request in the child support award

circuit court for modification of the

entered by the Superior Court was held before a master in the circuit court on July 17, 1996. the request. The master recommended denial of

Appellant filed exceptions, and after a hearing in

October 1996, the circuit court, on February 14, 1997, denied the exceptions. Four days later, on February 18, 1997, appellant

filed another motion to modify the child support order but presented no new arguments or facts. On March 27, 1997, the

circuit court denied appellant's second motion for modification, on the recommendation of a master, without a hearing. appeal followed. This

QUESTIONS PRESENTED Appellant, in effect, presents two questions for our review, as rephrased by us for clarity: 1. Was the custody order issued by the Superior Court of District of Columbia a final order entitled to full faith and credit by the circuit court or was it a pendente lite order subject to de novo review? Did the circuit court err in ruling on appellant's second motion to modify child support without first holding a hearing?

2.

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STANDARD OF REVIEW The standard of appellate review we must apply is governed by Maryland Rule 8-131(c).1 We review the circuit

court's decision without deference to determine if errors of law exist. All factual findings of the circuit court, however, are

entitled to deference and must be upheld unless clearly erroneous. Discussion I. The resolution of appellant's first question turns on whether the August 12, 1993, order of the Superior Court was entered pendente lite or as a final decree. Appellant contends

that the Superior Court's order was issued pendente lite. Therefore, the circuit court was required to hear the custody matter de novo and apply the best interest of the child standard when rendering its decision on October 28, 1996. Kovacs v.

Kovacs, 98 Md. App. 289, 310-12 (1994); Kerns v. Kerns, 59 Md. App. 87, 96-97 (1984). We hold that the Superior Court's order

constituted a final decree and that the circuit court did not err

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Maryland Rule 8-131(c) provides: When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. -4-

in applying the modification standard. In his brief, appellant points us to D.C. Code

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