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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 557 SEPTEMBER TERM, 1996 ___________________________________

RICHARD E. PAINTER

v. LINDA PAINTER

___________________________________

Cathell, Hollander, Thieme, JJ. ___________________________________ Opinion by Cathell, J. ___________________________________

Filed:

February 3, 1997

Richard E. Painter, appellant, appeals from the judgment of the Circuit Court for Montgomery County in favor of Linda Painter, appellee. The trial court 1) granted appellee an absolute divorce

on grounds of constructive desertion; 2) denied all visitation to appellant with the parties' son Daniel; 3) granted limited

visitation to appellant with the parties' daughter Christina; 4) ordered appellant to pay one-half of Daniel's psychiatric hospital care that is not covered by insurance; and 5) adopted appellee's S74 statement as to marital and nonmarital property. Appellant

presents several questions, and subquestions, as follows: 1. Did the Court abuse its discretion in terminating any contact the appellant shall have with his sixteen (16) year old son? 2. (a) Did the Court abuse its discretion in restricting the appellant's long distance telephone conversations with his eleven year old daughter? (b) Was it an abuse of discretion for the Court to limit the father's visitation to four hours and supervised visitation when appellant's daughter visits Maryland? 3. (a) Did the Circuit Court err in granting the appellee an absolute divorce on the ground of constructive desertion? (b) Did the Court err in dismissing the appellant's Counterclaim for an absolute divorce on the ground of adultery?

- 2 4. Did the Court err in ordering the appellant . . . to pay to the appellee one[-]half (1/2) of all medical bills not covered by insurance for the son's treatment and psychiatric therapy? 5. (a) Did the Court abuse its discretion in granting the appellee the use and possession of the marital home for a period of one (1) year where the appellee had not lived there for eleven (11) months and where there was no testimony that she intended to return? (b) Did the Court abuse its discretion in requiring the appellant to pay one-half (1/2) of the mortgage payment during the period of the use and possession where appellant's sole income consisting of social security had been suspended? (c) Did the Court err in ordering that all, marital and personal property be sold and the proceeds deposited in the appellee's attorney's escrow account? (d) Did the Court err in directing the United States Bankruptcy Court Trustee to turn over to appellee's counsel all funds resulting from the sale of the jointly owned marital home? Contradictory to the United States Bankruptcy Court Order directing the United States Trustee to pay to appellant his proceeds directly to him? (e) Did the Court abuse its discretion in awarding the bedroom furniture, piano and television sets to the children? 6. Did the Court err in awarding the appellee, wife's attorney $15,000.00 in attorney's fees? 7. Did the Court err in finding that there was no dissipation of marital funds and property? The Facts

- 3 Appellant and appellee were married in 1978 and have two children, Daniel and Christina. mately fifteen years. They lived together for approxiDuring part of

Appellant was an attorney.

the marriage, appellee worked as a legal secretary and in real estate. She worked for appellant periodically during the marriage.

Appellant was, at the time of the divorce, sixty-eight years of age and was either retired from the practice of law or was in the process of retiring. There was considerable evidence presented to the trial court of appellant's violent behavior directed at appellee and the Because of the large amount of evidence of

parties' children.

violence, we shall discuss the direct violence against appellee and against the children separately where possible. sively in occurred. Violence Against Appellee When asked of one episode that resulted in her leaving the home, appellee stated: [H]e started cursing me, you goddamn, f-ing bitch . . . . . . . [H]e jumped up . . . grabbed me and started pulling my hair and hitting me and screaming at me that I was . . . [a] bitch, et cetera . . . how stupid I was. . . . He chased me. He picked up a hatchet . . . and started swinging the hatchet at me. Daniel [was] standing there watching, and order to emphasize the severe We do so extenabuse that

domestic

- 4 Richard threw down the hatchet, got up on top of me and started pounding my head. I remember thinking this time I am going to be dead, and I called out to Daniel to help me and Daniel jumped on his father's back. . . . I said Daniel, get off, get away, and so Daniel got off and Richard continued to beat me . . . and when he had thrown me down on the cement, my lower disk [sic] was ruptured. . . . I was bedridden for the back injury, and I couldn't even get [appellant] . . . to see to it that Daniel had anything to eat. . . . . . . I lay in that bed trying to figure out how to get myself and Daniel out of the house.[1] I am not sure of how many days went by, maybe 10 [days] or two weeks, but my sister came down from Baltimore and helped me pack up my car. . . . . . . . I drove to Daniel's school . . . . We [Daniel and appellee] got in the car . . . and . . . we drove to Florida . . . . She testified that at appellant's request, and after he told her he would not use violence against her, she returned.2 After

her return, appellant continued to abuse her verbally and "he slap[ped] [her] but never to the point that [she] feared for [her] life until May 10th of 1993." She testified that on May 10, 1993,

appellant was arguing with her and that he, in the presence of the children, The daughter, at this point, was apparently staying in Florida with grandparents.
2 1

This is a pattern seen frequently in domestic abuse cases.

- 5 knocked me out of the chair . . . got on top of me and started beating me. . . . John [appellant's stepson] . . . pulled Richard [appellant] off of me and started yelling at me to get away. I ran out the front door and I had on short shorts and I was barefoot. . . . Richard came out . . . and attacked me again and started kicking me down the hill towards where the pool was and John made him stop again . . . . She testified that appellant then talked her into going back in the house to talk things over but instead he started again cursing me . . . got on top of me . . . was bashing me in the head, choking me, kicking me, and I was screaming. . . . Richard was dragging me by the hair, and John pulled him off . . . . . . . . . . . We had nowhere to go and we had no money. We hid down at the entrance of the neighborhood. Appellee testified that, when another stepson came to help John control appellant, appellant "was lying on the bed with the two handguns, loaded handguns laying there beside him on the night table and when he tried to talk to his dad he wouldn't respond."3 She continued: We stayed outside and about 45 minutes or an hour went by, and Richard called to Daniel. Daniel was in the house, and he said I want to talk to you and your sister and your mother. The trial court struck appellee's testimony that appellant had attempted to murder a girlfriend.
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- 6 So we went in and sat down in the family room, and Richard announced that he was either going to commit suicide or kill me and he said nobody gives a "GD" about me, except for Daniel. Daniel is the only one I love. He told Christina that she was a goddamn fucking bitch just like her mother and he told me that I didn't love him and I had never loved him and that nobody cared about him and that I could just sell the house, sell everything and get the fuck out of there. So as the evening progressed the kids went to bed, and I was afraid to go to sleep because I knew the guns were still up in his room. I sat on the sofa. I usually work until at least 2:00 in the morning anyway. I sat on the sofa in the family room and it is a two story, tall window. He came out of his bedroom and threatened me that I better get my fucking ass into the bed or I was going to start something again. So I got up and went upstairs and got in the bed, and lay there imagining him coming down the hall to shoot me, so I slept on the floor in the bathroom. Appellee further testified that, despite this abuse, she did not leave appellant because she feared for her life if she left and because she was too ill to leave. She then testified that on

November 15, 1993, she called appellant to discuss a number of real estate settlements. She testified:

He started screaming at me that I could get my fucking ass out of the house or he would kill me when he got home. . . . I [had] pushed the speaker button . . . . The employee working for me and the courier, his son, [appellant's stepson] heard him say that. . . . . . . . John Painter [appellant's stepson] heard his father threaten to kill me. . . .

- 7 John . . . said, okay, Linda, that is it. Get your stuff together and I am getting you out of here. . . . . . . . [W]e went into hiding. She then testified that as a result of a court order, she had appellant removed from the house, moved back in herself, and hired a bodyguard for a period of time at $250 per day. She ultimately She kept

was unable to keep the bodyguard because of the expense.

the bodyguard "[u]ntil three days before he [appellant] came after me." On February 4, 1994, a neighbor called her and told her that She immediately called

appellant's car was parked in the vicinity. the police. nearby.

Appellant's unoccupied car was found by the police

She got the car keys and went with the police back to Appellant was then standing in the middle of the

appellant's car. street.

After the police patted appellant down and found two

loaded handguns and ammunition on his person, he was arrested.4 There was additional corroborative testimony of violence towards appellee. Violence Against the Children There was substantial evidence of appellant's violent actions toward the children in addition to that previously described when

Appellant is apparently presently on some type of probation arising out of this incident.

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- 8 Daniel was present during an attack or attacks on appellee.

Appellee testified: A On Daniel's first birthday Daniel was sitting in his high chair, and Richard smacked him across the face. I have a photograph of him with a black eye. Q Now did there come a time in 1990 when Mr. Painter had an incident with Daniel? A Q 1990? A I was in the kitchen with Richard's sister, my sister-in-law. Q What is her name? Yes, December 31st, New Year's Eve. What happened on New Year's Eve of

A Madge Askin. It was New Year's Eve. Christina was in her room and Daniel was in the kitchen. Richard was in the family room. Daniel walked out of the kitchen through the family room, up the stairs to go to his room, and as I said before the family room is two stories high, so you can see the hallway upstairs when you are in the family room. Richard called up to Daniel and asked him to turn the light on, which was in the second level ceiling, and in the dark when Daniel went to push the light switch he missed the light switch and he pushed the fan switch and the fan came on. Richard jumped up out of the chair, started screaming and yelling and cursing you goddamn, fucking, stupid whatever and ran up the stairs towards Daniel. I came out of the kitchen and as I came out I saw Richard upstairs. He had Daniel by the head and was taking Daniel and throwing him into the wall with his head. I screamed at Richard to please stop, and I was crying and screaming stop. I ran to go

- 9 upstairs to help Daniel. Richard just like shoved Daniel and then turned and was coming down the stairs toward me, you stupid, fucking bitch, I told you when I am dealing with him -- I don't remember the word he used. When I -- in other words, I was never allowed to interfere with him and the children and he was warning me that he had told me that before. So I turned around and I went into the kitchen. He came after me in front of my sister-in-law, grabbed me and started beating me. Q Are there any other incidents when he has been violent with Daniel? A Yes.

Q Can you relay those to the Court and give approximate dates? A In approximately 1989, whenever he would fly off and he would be upset. One time on the staircase in front of the house he grabbed ahold of Daniel and was just throwing him into the wall. Other times he grabbed Daniel around the neck and choked him. When we were visiting my sister-in-law he attacked Daniel and was choking him and Daniel couldn't breathe. . . . . A We were visiting in Florida at his sister's house, apartment, condo and he had taken Daniel into the powder room and was beating him in there, and my sister-in-law went in there and tried to help Daniel and Richard turned on her and shoved her out of the room and told her to mind her own business, that what he was doing with Daniel was none of her business. Q What about Christina? violent with her? Has he been

A He has been verbally abusive with Christina every day of her life. One incident

- 10 right after first grade started, she didn't live with us very much. Q Why didn't Christina live with you?

A He doesn't like her. When he found out that she was extremely intelligent through some psychological testing, he decided that she was coming home to go to school. . . . . Q You indicated that he was verbally abusive to Christina? A Yes.

Q Would you tell the Court what that consisted of? A You are nothing but a fucking, goddamn bitch, just like your mother. Q How old was Christina when he would tell her that or when he first started telling her that? A From the beginning. Well, he would call her a brat when she was a baby, a fucking brat, and then as she got older and was walking and talking he would say the other. Q Now were there any incidents of physical abuse of Christina? A Q Yes. Would you tell the Court about that?

A One time in a restaurant in Burtonsville she wanted milk or she wanted orange juice and he wanted her to have milk. . . . . A Sunday. Q She was about five years old on a I did keep a journal. What happened?

- 11 A We went every Sunday out to breakfast, and we were sitting there and he was telling her what she had to order to drink. She didn't want to order that and when the waitress walked up she ordered what she wanted to order, and he reached across the table with his close fist and slugged her. Q A Did he hurt her? Yes.

Q Did she have to go to the doctor or hospital? A Q No. Were there any other incidents?

A Well, during the first grade, the second day of school she was sitting at the kitchen counter eating breakfast, and he demanded that you pay homage to him and when she was ignoring him, he was getting ready to leave, he started cursing her. So she went to reach to kiss him and she mussed [sic] up his hair, and he swung around and just took his hand around her neck and started squeezing until she couldn't breathe and she turned red. I started screaming at him to stop, and right then the car pool that I was in pulled up in the driveway to get her and he stopped. She was sitting there crying, so I took her outside and consoled her and he told her to get in the car and leave. Q Were there any other incidents with Christina? her. A Not other than shoving her, pushing He usually verbally abused her.

In addition to battering his wife and children, appellant also battered the family dog. There was testimony that he would beat

- 12 and kick Christina's dog. He once threw it off the second story in Finally, the dog bit him.5 After

front of Christina and appellee.

the dog bit him, appellant threw it against the wall. We shall address other facts as necessary as we resolve the specific issues. The Law We restated the standard for our review of a civil action involving most marital disputes in Keys v. Keys, 93 Md. App. 677, 688 (1992): Pursuant to Md. Rule 8-131, unless the testimony is devoid of merit, we will not substitute our judgment for the trial court's determination of the credibility of the witnesses. Colandrea v. Colandrea, 42 Md. App. 421[, cert. denied, 286 Md. 745] (1979). We are bound by this oft enunciated principle, especially in the arena of marital disputes where notoriously the parties are not in agreement as to the facts, and therefore, we must be cognizant of the court's position to assess the credibility and demeanor of each witness. Consequently, we will only overturn a trial judge's findings of fact when the findings are clearly erroneous. See Whitehurst v. Whitehurst, 257 Md. 685 (1970), Cullotta v. Cullotta, 193 Md. 374 (1948), Hale v. Hale, 74 Md. App. 555[, cert. denied, 313 Md. 30] (1988), Eckstein v. Eckstein, 38 Md. App. 506 (1977). We recently noted, in Lemley v. Lemley, 109 Md. App. 620, 627-28 (1996), that

Christina's dog was, apparently, possessed of a large degree of canine perspicaciousness. "Even a dog distinguishes between being stumbled over and being kicked." Oliver Wendell Holmes, Common Law, Vol. 3 (1881).

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- 13 [t]o prove that a chancellor's decision was clearly erroneous is an extremely heavy burden. "The chancellor's decision in a contested custody case, frequently among the most difficult a judge is called upon to make, is of critical importance. . . . It is unlikely to be overturned on appeal." . . . A finding of a trial court is not clearly erroneous if there is competent or material evidence in the record to support the court's conclusion. [Citations omitted.] Resolution of Questions 1 through 4 Questions (1) visitation with Daniel; (2) visitation with Christina; (3) the grant of an absolute divorce to appellee on constructive desertion grounds; and (4) Daniel's past medical bills. 1. Visitation with Daniel At the time of the trial court's decision, section 9-101.1 of the Family Law Article provided that in a proceeding concerning custody or visitation, a trial court "may consider" evidence of abuse by a party against "the other parent of the party's child" and against "any child residing in the party's household."6 Md.

Code (1984, 1991 Repl. Vol.),

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