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We have here a custody battle between Stephanie Schaefer (Stephanie) and Michael Cusack (Michael). Circuit Court for Baltimore City. It is on appeal from the

Multiple issues were raised.

Fortunately, several have been settled by stipulation since the appeal was filed. We shall discuss the issues seriatim, setting

forth such facts as may be necessary for an understanding of each issue. We shall affirm in part and reverse in part. Not only do

we have multiple issues, but we have a motion to dismiss Stephanie's appeal and a motion to dismiss what Michael calls his "contingent cross-appeal".

I. MOTION TO DISMISS THE APPEAL

Michael moves to dismiss the appeal arguing that "[a] claimant cannot accept the benefits of a trial judge or chancellor's ruling in a disputed case, and then later attack the validity of that ruling on appeal. A.2d 1164 (1977)." Suburban Dev. Corp. v. Perryman, 281 Md. 168, 377 He contends that here Stephanie "has taken the

benefits of the trial judge's Orders" in each of the subjects of "custody and visitation/parental time," "child support", "monetary award", and "award of Attorneys fees." Oddly enough at no time did

either party cite to us Dietz v. Dietz, 117 Md. App. 724, 701 A.2d 1144 (1997), rev'd, Dietz v. Dietz, ____ Md. ____ , ____ A.2d ____ (1998) [No. 6, Sept. Term, 1998, filed Nov. 16, 1998], where this Court dismissed an appeal seeking an increase in a monetary award

because the appellant had accepted payments under the award as rendered. We deny this motion to dismiss on the basis of Dietz.1

II. AWARD OF FUTURE CUSTODY The parties were married on July 11, 1992, in Baltimore City. Their only child, the subject of this litigation, Garrett Michael Cusack (Garrett), was born September 15, 1993. The parties

separated in April, 1994.

The trial judge (Brynes, J.) ordered

"that physical custody of the minor child Garrett is granted to the plaintiff until thirty days following his completion of the fifth grade. Michael At that point in time, physical custody is awarded to Cusack until Garrett's eighteenth birthday . . . ."

Stephanie contends that "the trial court abused its discretion in ordering an in futuro change in custody 30 days after Garrett completes fifth grade (approximately eight years from the date of the final judgment)". We agree.

Stephanie relies upon Sullivan v. Auslaender, 12 Md. App. 1, 276 A.2d 698 (1971), asserting that there "this court determined that a separation agreement which contemplated an automatic change in custody in the future was not in the best interests of the children." What she does not tell us, however, is that in that case

the Court of Special Appeals substituted its judgment for that of

We deliberately delayed our opinion in this case awaiting the decision of the Court of Appeals. 2

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the trial judge and that in Davis v. Davis, 280 Md. 119, 372 A.2d 231 (1977), Judge Digges said for the Court of Appeals: [T]here is some confusion in our cases with respect to the standard of review applicable to the chancellor's ultimate conclusion as to which party should be awarded custody. Notwithstanding some language in our opinions that this conclusion cannot be set aside unless clearly erroneous, see, e.g., Spencer v. Spencer, 258 Md. 281, 284, 265 A.2d 755, 756 (1970)(per curiam); Goldschmiedt v. Goldschmiedt, 258 Md. 22, 26, 265 A.2d 264, 266 (1970), we believe that, because such a conclusion technically is not a matter of fact, the clearly erroneous standard has no applicability. However, we also repudiate the suggestion contained in some of our predecessors' opinions, see, e.g., Melton v. Connolly, 219 Md. 184, 188, 148 A.2d 387, 389 (1959); Butler v. Perry, 210 Md. 332, 339-40, 123 A.2d 453, 456 (1956); Burns v. Bines, 189 Md. 157, 164, 55 A.2d 487, 490 (1947); cf. Ex Parte Frantum, 214 Md. 100, 105, 133 A.2d 408, 411, cert. denied, 355 U.S., 882 (1957) (adoption case), and relied upon by the Court of Special Appeals in Sullivan v. Auslaender, 12 Md. App. 1, 3-5, 276 A.2d 698, 700-01 (1971), and its progeny, see, e.g. Sartoph v. Sartoph, 31 Md. App. 58, 64 & n. 1, 354 A.2d 467, 471 (1976); Vernon v. Vernon, 30 Md. App. 564, 566, 354 A.2d 222, 224 (1976), that appellate courts must exercise their "own sound judgment" in determining whether the conclusion of the chancellor was the best one. Quite to the contrary, it is within the sound discretion of the chancellor to award custody according to the exigencies of each case, Miller v. Miller, 191 Md. 396, 407, 62 A.2d 293, 298 (1948), and as our decisions indicate, a reviewing court may interfere with such a determination only on a clear showing of abuse of that discretion. See, e.g., Pontorno v. Pontorno, 257 Md. 576, 581, 263 A.2d 820, 822 (1970).

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Id. 124-125. "The determination of which parent should be awarded custody of a minor child rests within the sound discretion of the trial court." Giffin v. Crane, 351 Md. 133, 144, 716 A.2d 1029 (1988),

citing cases. The parties in this case can agree on but little. They do

agree that we apply the best interest standard and that the trial judge's determination stands absent an abuse of discretion.2

In Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977), Judge Orth said for the Court: In performing its child protection function and its private-dispute settlement function the court is governed by what is in the best interests of the particular child and most conducive to his welfare. This best

Apparently, the best interest standard was not observed in an earlier day. See, Hild v. Hild, 221 Md. 349, 157 A.2d 442, (1960), where Judge Horney said for the Court: At the common law the father was generally entitled to the custody of his minor children, but in the absence of statutory requirements to the contrary, modern courts invariably hold that the best interests and welfare of the child should be primarily considered in making an award of custody. Carter v. Carter, 156 Md. 500, 144 Atl. 490 (1929). Id. At 357. See also the discussion for this court by Chief Judge Gilbert in Montgomery County v. Sanders, 38 Md. App. 406, 412-417, 381 A.2d 1154 (1978). 4

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interest standard is firmly entrenched in Maryland and is deemed to be of transcendent importance. In Burns v. Bines, 189 Md. 157, 162, 55 A.2d 487, 489 (1947), quoting Barnard v. Godfrey, 157 Md. 264, 267, 145 A. 614, 615 (1929), we observed that the statute giving equity courts jurisdiction over the custody of children `is declaratory of the inherent power of courts of equity over minors, and [such jurisdiction] should be exercised with the paramount purpose in view of securing the welfare and promoting the best interest of the children.' We noted in Dietrich v. Anderson, 185 Md. 103, 117, 43 A.2d 186 (1945) that the statute has been so uniformly construed. We said in Butler v. Perry, 210 Md. 332, 342, 123 A.2d 453, 458 (1956): `Of course, it is too elementary to be stressed that the welfare of the child is the controlling test in a custody case.' Id. at 174-175. More recently in Robinson v. Robinson, 328 Md. 507, 615 A.2d 1190 (1992), Judge Karwacki said for the Court: The primary concern to a judge in awarding custody to one parent over the other is the best interests of the child. We have repeatedly stated the test originally set forth in Hild v. Hild, 221 Md. 349, 157 A.2d 442 (1960) as follows: "For the purpose of ascertaining what is likely to be in the best interests and welfare of a child a court may properly consider, among other things, the fitness of the persons seeking custody, the adaptability of the prospective custodian to the task, the age, sex and health of the child, the physical, spiritual and moral well-being of the child, the environment and surroundings in which the child will be reared, the influences likely to be exerted on the child, and, if he or she is old enough to make a rational choice, the preference of the child. It stands to reason that the fitness of a person to have custody 5

is of vital importance. The paramount consideration, however, is the general overall well-being of the child." Id. at 519. A change in circumstances ordinarily has been required for a change of custody. In McCready v. McCready, 323 Md. 476, 593 A.2d

1128 (1991), Judge McAuliffe said for the Court: The question of whether there has been a material change in circumstances which relates to the welfare of the child is, however, often of importance in a custody case. The desirability of maintaining stability in the life of a child is well recognized, and a change in custody may disturb that stability. Stability is not, however, the sole reason for ordinarily requiring proof of a change in circumstances to justify a modification of an existing custody order. A litigious or disappointed parent must not be permitted to relitigate questions of custody endlessly upon the same facts, hoping to find a chancellor sympathetic to his or her claim. An order determining custody must be afforded some finality, even though it may subsequently be modified when changes so warrant to protect the best interest of the child. As we said in Hardisty v. Salerno, 255 Md. 436, 439, 258 A.2d 209 (1969), `[w]hile custody decrees are never final in Maryland, any reconsideration of a decree should emphasize changes in circumstances which have occurred subsequent to the last court hearing.' Even this general statement may be subject to exception in the case of prior facts existing but unknown and not reasonably discoverable at the time of the entry of the original order, such as the fact that a parent to whom custody had been granted was, and continues to be, a sexual abuser of the child. See Sharp, Modification of Agreement-Based Custody Decrees: Unitary or Dual Standard?, 68 Va.L.Rev. 1263, 1266-71 (1982). 6

Id. at 481-482.

See also Domingues v. Johnson, 323 Md. 486, 498

593 A.2d 1133 (1991). Ordinarily, in determining custody the courts look to the situation as it exists at the time. This is well illustrated by

Raible v. Raible, 242 Md. 586, 219 A.2d 777 (1966), where custody was awarded to an admittedly adulterous mother.3 Judge Oppenheimer said for the Court: No question of adultery is involved. The period of misconduct of the wife took place after her divorce and terminated two years before the hearing below. As Judge Hammond said for the Court in Trudeau v. Trudeau, 204 Md. 214, 218, 103 A.2d 563 (1954), `no custody matter is the image of another and in none can the proper paths be plotted automatically on a map of the principles laid down by the cases.' See also, Daubert v. Daubert, 239 Md. 303, 308, 211 A.2d 323 (1965). The paramount, overriding consideration is the welfare of the children. In Trudeau, as here, the wife had ceased the conduct which was the basis for the attack upon her fitness, and the conclusion of the Chancellor that the mother's custody of the children should be continued (subject, always, to the continuing jurisdiction of the court) was affirmed. We found in Trudeau, as we find here, that there was no compelling reason which made the continuation of the mother's custody not in the best interests of the children. Id. at 593. Attitudes relevant to adultery have changed somewhat In that case

Apparently in Hild v. Hild, 221 Md. 349, 157 A.2d 440 (1960) the mother's adultery was the basis for reversal of an award of custody to her. See the vigorous dissenting opinion in that case by Judge Hammond, joined by Judge Henderson, beginning at page 361 of 221 Md. 7

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as indicated by Robinson, supra.

See also the discussion for the That does not

court by Judge Digges in Davis, 280 Md. at 127.

change the fact, however, that in Raible the Court was looking at the situation as it existed at the time of the hearing. Although the procedure followed in Sullivan was disapproved, there was no disapproval of - nor was there an issue before the Court relative to - the language of Judge Orth for the Court of Special Appeals in Sullivan. Judge Orth said for the court:

It is our best judgment that the children remain in the custody of their mother. We believe that the compromise solution of the chancellor does not give due regard for the welfare of the children and find no strong reason affecting the welfare of the children to depart from the custody award under the divorce decree with which appellee had at one time been content. We cannot conceive how it would be in the best interest of the children to take them from the mother, place them with the father in Israel for three years, then uproot them again and return them to the mother in the United States for three years, leaving their future at the end of the six year period to be later determined. Sullivan, 12 Md. App. at 17-18. The principle of requiring a change in circumstances for a change of custody is another indicator of looking at the

circumstances as they exist at the time the custody order is passed. In Hild v. Hild, 221 Md. 349, 357, 157 A.2d 442, (1960), as Judge Karwacki pointed out for the Court in Robinson, Judge Horney

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discussed for the Court factors to be considered in determining custody. This was summed up more recently in Montgomery County v.

Saunders, 38 Md. App. 406, 381 A.2d 1154 (1978), Chief Judge Gilbert for this Court said that the factors to be considered in determining custody of a child include: "but [are] not limited to, 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, 10) prior voluntary abandonment or surrender." (citations omitted). Id. at 420. We have not the faintest idea of what the situation of the parents may be at the time when this child completes the fifth grade, obviously a number of years hence. We know not what the We know not

living conditions of the parties at that time will be. where the parties will be living. incomes will be.

We do not know what their

We have no idea of what kind of physical We do not We have

condition the parents or child will be in at that time.

know what the preference of the child at that time may be.

no idea whatever as to the condition under which the parents will be living. Although thus far there has been no hint of immorality,

we do not know what the situation will be at the time of the

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contemplated change in custody.

We do not know what effect a All of these are

change in custody might have on the child. relevant considerations.

It is hard enough to look into the future and to determine what may be perceived as the best interest of the child on the basis of circumstances as they exist at the time of a custody hearing. We consider it to be an abuse of discretion to attempt to

look ahead and to determine now that it will be in the best interests of a child who has not yet entered kindergarten to have his custody changed upon completion of the fifth grade.

III. Child Support and Other Financial Matters Issues were briefed on appeal contending that the trial judge abused his discretion when he awarded in futuro child support, when he attributed certain annual income to Stephanie, and when he ordered her to execute a yearly waiver of the income tax dependency exemption for Garrett. At oral argument we were advised that we

are not obliged to address those issues by virtue of a consent order entered into by the parties on January 12, 1998.

IV. Summer Visitation Stephanie contends that the trial judge abused his discretion in awarding Michael six weeks of summer visitation "in light of

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Michael's extensive work and travel schedule."

She refers to the

fact that "the obligations of Michael's employment are demanding on his time," that "he works late nights, weekends and travels out of the country on a monthly basis." From this she argues that he

"will have no choice but to place Garrett in the custody of a third party while Michael works." That does not necessarily follow. If

Michael has visitation it will be up to him to work out just how he handles the matter, subject, of course if necessary, to the

approval of the trial court.

We perceive no abuse of discretion.

V. Counsel Fees Stephanie complains because she says the trial judge failed to address her request for counsel fees. Michael's reply to that is

that "[t]he trial judge stated throughout his opinions that the conditions that would justify the award of counsel fees were not present in this case." Unfortunately, however, Michael gives no In

citation to the record extract to back up this assertion.

ACandS v. Asner, 344 Md. 155, 190, 686 A.2d 250 (1996), Judge Rodowsky said for the Court of Appeals, after referring to the requirement of Maryland Rule 8-501(c) that the record extract "contain all parts of the record that are reasonably necessary for the determination of the questions presented by the appeal," "[the

Court of Special Appeals] has appropriately held that a party may lose the right to appeal on an issue by failing to indicate in that 11

party's brief the location in the record where the alleged error occurred. See Mitchell v. State, 51 Md. App. 347, 357-58, 443 A.2d

651, 657, cert. denied, 459 U.S. 915, 103 S. Ct. 227, 74 L.Ed.2d. 180 (1982)." Id. at 192.

Maryland Code (1991, 1997 Cum. Supp.),

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