Wagner v. Wagner

109 Md. App. 1, 674 A.2d 1 (1996)



A change of custody resolution is most often a chronological two-step process. First, unless a material change of circumstances is found to exist, the court's inquiry ceases. The term "material" relates to a change that may affect the welfare of a child.  If a material change of circumstance is found to exist, then the court considers the best interest of the child as if it were an original custody proceeding.


A couple divorced. When the circuit court awarded permanent custody of their two minor children to the father, the mother sought review with the Court of Special Appeals of Maryland. She alleged that she was deprived of her due process of law because she was not given notice of, and an opportunity to prepare for, various hearings that took place in the years following her divorce from her husband.


Was the mother denied due process?




The court affirmed the circuit court's decision. It held that the mother's due process rights were not violated when the trial court ordered custody transferred to the father after the mother absconded with one child. The mother's attorney was present at the hearing, the mother's absence was of her own doing, and due process did not mandate a prior hearing when emergency action was needed to protect a child. Her own actions were detrimental to the child's well-being, and in the father's custody, the child enjoyed a safe, stable, and loving environment. Thus, the trial court was justified in finding that a material change in circumstances had been shown and that it was in the child's best interests to be in appellee's custody. The trial court properly evaluated the facts in finding appellant was voluntarily impoverished. She freely contracted to work for a much smaller salary and transferred her house to her parents for nominal consideration. The mother could not offer the children as competent witnesses and then assign error when the children's testimony was not favorable to her.

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