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Motions Practice for the Family Law Attorney

By Walter A. Herbert, Jr., Esq.
This article first appeared in the Prince Georges County Bar Association NewsJournal in 2018.

Our brethren at the Criminal Bar have long known a secret that we in Family Law have been slow to embrace, namely that a well thought-out pre-trial motions strategy may narrow issues, frustrate the opposition’s long-term strategy and educate the Judge and our client as to ultimate issues. Not every motion will succeed, but there are good reasons for the family law practitioner to implement a pre-trial motions strategy.

What is a Motion? According to The People’s Law Library of Maryland, “A motion is a request asking the court to give an order that the court or another party must do something.” Ideally a motion should be in writing, with a plain statement of facts followed by a brief legal analysis and specific requested relief; be sure to cite your legal authority, either statutory or case law, and include a draft Order: as with all things in life, make it easy for others to do what you want them to do. Don’t forget to ask for a hearing if you want one.

Typical pre-trial family law motions include Motion to Dismiss for Failure to File Financial Statement, Motion for Order of Default, the ever-popular Motion for Sanctions for Failure to Provide Discovery (don’t forget to send Opposing Counsel your letter requesting discovery first) and Motion to Dismiss for Lack of Jurisdiction.

A more robust and challenging motion is the Motion to Enjoin Against Dissipation of Assets, also known as the Temporary Restraining Order. We have all seen the race to the bank wherein marital funds are shifted from a joint account accessible to both parties  to an account only accessible to one party, thus permanently altering the status quo to one party’s detriment. The motion referenced above is one answer to that dilemma.

The Annotated Code of Maryland, Family Law Article 1-203 states in pertinent part:

 In an action for alimony, annulment or divorce an equity court:

  • has all the powers of a court of equity; and
  • may issue an injunction to protect any party to the action from physical harm or harassment.

The Maryland Rules further articulate these powers:

RULE 15-501. INJUNCTIONS–DEFINITIONS

The following definitions apply in the rules in this Chapter:

(a) Injunction. “Injunction” means an order mandating or prohibiting a specified act.

(b) Preliminary Injunction. “Preliminary injunction” means an injunction granted after opportunity for a full adversary hearing on the propriety of its issuance but before a final determination of the merits of the action.

(c) Temporary Restraining Order. “Temporary restraining order” means an injunction granted without opportunity for a full adversary hearing on the propriety of its issuance.

Source: This Rule is derived from former Rule BB70.

What other conduct might give rise to such a motion?

  1. Destroying property, thus putting it beyond use;
  2. Emptying 401 k’s, liquidating pension accounts and applying for pension benefits;
  3. Selling off real or personal property;
  4. Removing a party from credit cards thus limiting access to credit;
  5. Changing beneficiaries;
  6. Borrowing against jointly held property thus reducing the equity.

A properly drafted motion for injunctive relief may stop a party from engaging in these actions, not only preserving assets for disposition at trial but also providing access to funds for everyday living expenses.

Final thoughts:

  1. An injunction represents extraordinary relief and requires a showing that your client will suffer immediate and irreparable harm in the absence of the injunction.
  2. It’s a good idea to outline in your motion any prior acts of dissipation committed by the opposing party; nothing illustrates the possibility of future harm like prior harm.
  3. Be very specific in your requested relief. For example, don’t request that all bank accounts be frozen or your client may not have access to funds for day to day expenses.

Another often-utilized motion is the Motion for Custody Evaluation.

We all have established protocols for case preparation, and modern child custody litigation often involves the use of experts, whose job is to translate technical, specialized information into language that will assist the trier of fact. In both initial determinations and subsequent modifications, the first expert on call is often the child custody evaluator, and you access the child custody evaluator with a motion.

The American Psychological Association has published “Guidelines for Child Custody Evaluations in Family Law Proceedings”, which are available at the APA website and warrant close study. These guidelines discuss in detail the purpose, preparation and conduct of the evaluation.

Before filing your motion you should also familiarize yourself with MD Rule 9-205.3, Custody and Visitation-Related Assessments. This Rule is quite comprehensive and defines the term custody evaluation, outlines the steps required to obtain an order for a custody evaluation, articulates the  qualifications of the custody evaluator, goes into great detail as to the mandatory contents of the evaluation and finally discusses prohibitions on dissemination of the report and costs. Some attorneys first request a custody evaluation at the scheduling conference but it is a better practice  to file a written motion prior to the scheduling conference so that the issue may be addressed at that time if it is opposed.

     Your threshold question should be…what is the advantage to my client in undertaking a child custody evaluation? Bear in mind the report will dictate how you proceed with the balance of your case, so think carefully before moving for, or agreeing to, an evaluation. Also consider that much of the evaluation takes place without your direction and input, as for example with client and witness interviews, so there is a loss of control of the narrative.

      An evaluation is really only necessary when the case presents a unique set of circumstances which require specialized knowledge to interpret for the Court’s benefit. Such unique circumstances might include drug abuse, prior spousal or child abuse, a history of mental illness or any other factor that might impact parental ability. If your case evaluation, as opposed to your client’s evaluation, tells you that you have a strong case you may not want to submit your client to the interviews, testing, etc., involved in a quality evaluation (be advised, however, that an evaluation performed by the Prince Georges County Circuit Court FSS does not involve testing). Particularly where the children are older, and have expressed a preference for your client, there is more to lose than gain.

     Through the use of pre-trial motions such as the motions cited herein the careful attorney can level the financial and emotional playing field…use them wisely.

Walter A. Herbert, Jr., Esquire, is Past Chair of the Maryland State Bar Association Family Law Section; he practices in Prince Georges and Fairfax Counties

 

  “We All Make Mistakes: Disestablishing Paternity After Davis?”

By Walter A. Herbert, Jr., Esq.
This article first appeared in the Prince Georges County Bar Association NewsJournal in 2015.

In 1984 Christopher Abernethy signed an admission of guilt, bringing to a close the notorious Hickey murder investigation in Cook County, Illinois. Sometime later Mr. Abernethy began to protest his innocence and, finally, in 2014 won the right to DNA testing. The DNA test results excluded Mr. Abernethy as the perpetrator and in February 2015 Mr. Abernethy walked free.

Justin Davis wasn’t so lucky.

 In December 2009 Davis and his partner, Jessica Cook, signed Affidavits of Paternity for Nicholas and Benjamin Davis, the twins she had recently delivered; these Affidavits were signed while Ms. Cook and the twins were still in the hospital. Although the relationship between Davis and Cook had apparently been rocky, with a three (3) week separation taking place approximately nine (9) months earlier,  the couple had, according to Cook, determined to raise the twins together: “…regardless of whether or not these were biologically his children that we were going to raise them together.” She also stated that in May 2009 she told Mr. Davis that “…there is a possibility that those children were not his.” 

Eventually the problems in the relationship resurfaced, the parties separated again, and the local Bureau of Support Enforcement filed a support action. Belatedly Mr. Davis realized he had a problem and appeared, pro se, to argue for a paternity test.

Paternity for children born outside of marriage can be established in a number of ways including by a judicial declaration of paternity or by the affidavit of parentage outlined at FL 5-1028. Where, as here, parentage is established by affidavit, then disestablishment is also governed by FL 5-1028. Significantly, FL 5-1028 provides that an affidavit of paternity may be rescinded in writing within 60 days of execution; after the expiration of the 60 day period an affidavit may only be challenged on the basis of fraud, duress or material mistake of fact.

In September 2011 the parties appeared for trial. Mr. Davis repeatedly requested paternity testing, pointing out that the children were “…visibly, visibly Caucasian…”  The Court found that the affidavit controlled, that the expiration of the 60 day period foreclosed rescission, and further that there was no evidence before the court of fraud, duress or material mistake of fact. The Court found the testimony of Cook as to just what she told Davis to be irrelevant…”…because (appellant) armed with whatever knowledge he had chose to voluntarily execute an affidavit…”.  Of course, the knowledge and information supplied by Cook to Davis and/or the Bureau might have been worth examination as to any underlying fraud or mistake but the Court did not do so. The Court set child support and Mr. Davis did not appeal.

The case took another turn two (2) years later, when Ms. Cook filed a petition to change the names of the twins from Davis to Cook, although Mr. Davis was legally the twins father, and she was collecting child support from him. This time Mr. Davis retained counsel and filed a complaint seeking DNA testing, that the Affidavit be stricken and that the support order be stricken. Specifically Davis argued that as FL 5-1038 permitted DNA at any time after a judicial determination of parentage, the same rights should be afforded to one who signs the Affidavit of Paternity. Again Davis lost, this time by summary judgment,  and he appealed to the Court of Special Appeals.  

The result was the same, and this despite the fact, discovered by Davis and brought to the Court’s attention in his reply brief, that Ms. Cook admitted to the Bureau, prior to the 2011 hearing, that Davis was not the biological father. The Court found that this issue was not preserved for review, ignoring the possibility that this conduct may rise to fraud or, charitably, mistake.

The elements of fraud are laid out in Fader’s Maryland Family Law (all family law practitioners should keep this book handy, now in its Fifth edition):

  1. The representation made is false;
  2. Its falsity was either known to the speaker or the misrepresentation was made with reckless indifference to the truth;
  3. The fact was misrepresented for the purpose of defrauding the injured party;
  4. The person not only relied upon the misrepresentation but had the right to rely upon it, and that he would not have done the thing from which the injury resulted had not such misrepresentation been made;
  5. He or she actually suffered damage directly resulting from such fraudulent misrepresentation.

According to Fader, intent to deceive is the critical element. So, was there an intent to deceive in the Davis case? Let’s recap: while at the time of signing the Affidavits Ms. Cook told Mr. Davis that there was a possibility that the children were not his, implying a possibility that they were his children, she apparently told the Bureau at some point that she knew the children were not his…and then she filed a Petition to change the children’s names…

More than anything this case does stand for the proposition that all children born out of wedlock should be subject to DNA testing, now readily and easily available via swabbing,  before the Affidavit is presented to the parties.

Although we rarely consult with clients during the 60 day rescission period, mores the pity, clients need to be made aware of the dire consequences of signing the Affidavit of Paternity; once the 60 day rescission period has expired the only recourse is to show fraud, duress or material mistake, and, if the conduct of the Petitioner in the Davis case does not rise to the level of at least one if not two of these then it is hard to imagine what may.

Walter Herbert, Esquire, is the Past Chair of the MSBA Family & Juvenile Law Section; he is admitted in Maryland and Virginia and writes and lectures frequently on family law issues.