Circuit Court for Cecil County
Case No. 07-C-14-000158

                                              REPORTED

                                 IN THE COURT OF SPECIAL APPEALS

                                            OF MARYLAND

                                                No. 1006

                                          September Term, 2016

                                 ____________________________________

                                      JAMES RICKY HOLBROOK

                                                    v.

                                          HANNAH NEWELL

                                 ____________________________________

                                      Graeff,
                                      Kehoe,
                                      Moylan, Charles E., Jr.,
                                         (Senior Judge, Specially Assigned)
                                                   JJ.

                                 ____________________________________

                                          Opinion by Kehoe, J.

                                 ____________________________________


                                      Filed: February 1, 2017
    The issue in this appeal is whether a circuit court has jurisdiction to resolve a child

custody dispute between unmarried parents when the parents are living together. In

Ricketts v. Ricketts, 393 Md. 479, 501 (2006), the Court of Appeals held that a court had

such jurisdiction in a divorce action even if the parents were sharing the same household

and even if the court declined to grant a divorce. We will extend the holding of Ricketts

to cases where the parents are unmarried and reverse a judgment of the Circuit Court for

Cecil County.

                                        Background

    James Ricky Holbrook and Hannah Newell are the biological parents of K., a minor

child. In January 2015, the circuit court entered a consent order which, in addition to

other relief, awarded the parties joint custody of K. In September 2015, Mr. Holbrook

filed a motion to modify the custody provisions of the earlier order. While that motion

was pending, Mr. Holbrook filed an ex parte request for custody, in which he asserted

that Ms. Newell was unable to care for K., and that K. had been residing exclusively with

him for several months because Ms. Newell did not have a fixed address. The circuit

court held a hearing on this petition on May 16, 2016.

    The first witness at the hearing was Ms. Newell’s mother. She testified that Ms.

Newell was unable to care adequately for K. because of a psychological condition. In his

own testimony, Mr. Holbrook stated that K. and Ms. Newell were residing with him so

that he could care for K., and so that K. and her mother would have a place to live while

Ms. Newell seeks treatment for her health problems. The circuit court then recessed.

When proceedings resumed, the following occurred:


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        THE COURT: Returning on the record of Hannah Newell versus Ricky James
        Holbrook, Junior . . . . We are conducting an expedited hearing on Pendente Lite
        Custody.
        And the last testimony that I heard from Mr. Holbrook is that the parties are
        residing together.
        Is that correct, [appellant’s counsel]?
        [Appellant’s Counsel]: Yes, Your Honor.
        THE COURT: Okay, I don’t believe that the Court has jurisdiction to continue a
        hearing in this matter.
        I’m going to dismiss the petition.

    Mr. Holbrook filed a motion for reconsideration, in which he presented the same

arguments as he does to this Court. The circuit court denied the motion. This timely

appeal followed.

                                          Analysis

    The circuit court dismissed the custody petition on the grounds that it lacked subject

matter jurisdiction because the parties were living in the same household. Whether the

court’s interpretation of its inherent and statutory authority was correct is a legal

question, which we review de novo. Cabrera v. Mercado, 230 Md. App. 37, 80 (2016).

    There are two relevant statutes. The first is § 5-203(d)(1) of the Family Law Article

(1984, 2012 Repl. Vol.) (“FL”), which provides that, “if the parents live apart, a court

may award custody to either parent or joint custody to both parents.” The second statute

is FL § 1-201, which states in pertinent part:

        (b) An equity court has jurisdiction over:
                                                ...
        (5) custody or guardianship of a child except for a child who is under the
        jurisdiction of any juvenile court and who previously has been adjudicated to be
        a child in need of assistance;
        (6) visitation of a child;


                                             -2-
                                                  ...
        (c) In exercising its jurisdiction over the custody, guardianship, visitation, or
        support of a child, an equity court may:
        (1) direct who shall have the custody or guardianship of a child, pendente lite or
        permanently;
        (2) determine who shall have visitation rights to a child;
                                             ....

    Read together, the two statutes are admittedly ambiguous––§ 5-203(d) authorizes a

court to decide custody issues “if the parents live apart,” whereas § 1-201(b) contains no

such limitation. The Court of Appeals recognized and resolved this ambiguity in Ricketts

v. Ricketts, 393 Md. 479, 501 (2006). In that case, the Court held that a circuit court could

decide custody even if the parties to a divorce action were living in the same household,

and even if the court declined to grant a judgment of divorce. At the heart of the Court’s

analysis is the long-established principle that a court’s authority to decide issues of

custody in the best interests of minor children is inherent and “‘d[oes] not emanate from

the Legislature.’” Taylor v. Taylor, 306 Md. 290, 298–99 (1986) (citing Glading v.

Furman, 282 Md. 200, 208 (1978); Coleman v. Coleman, 228 Md. 610, 613 (1962)).

    In reaching its result, the Ricketts Court examined the legislative history of the two

statutes. The Court noted that the original version of what is now FL § 1-201:

        empower[ed] the equity courts, whenever application for that relief was sought
        by one or both parents, to determine custody, support and visitation “without
        regard to the question of whether or not the parents of said child or children
        have been divorced or are living apart.”

393 Md. at 498 (quoting Barnard v. Barnard, 157 Md. 264, 267 (1929) (emphasis added

by Ricketts)). The Court “also acknowledged that section ‘as declaratory of the inherent

power of courts of equity over minors, and [that] in the exercise thereof it should be



                                             -3-
exercised with the paramount purpose in view of securing the welfare and promoting the

best interest of the children.’” Id. (quoting Barnard, 157 Md. at 267). The Court

concluded that “the Legislature did not disturb the courts’ right to determine custody . . .

when a divorce was not decreed” when it enacted the predecessor to what is now

FL § 5-203(b). 393 Md. at 498. The Court of Appeals concluded:

        This result and this approach are consistent with the primacy of the interests of
        the child and the courts’ paramount concern to secure the welfare and promote
        the child's best interests. The trial court, in short, whether, or not, it concludes
        that Mr. Ricketts is entitled to a divorce, has the jurisdiction and power to
        determine the custody, visitation and support of the Ricketts’ children.

Id. at 501 (citations and quotation marks omitted). 1

    The case before us is not a divorce proceeding but we can conceive of no reason why

the State’s interest in protecting the welfare of a child should depend upon the present or

former marital status of the parents. Therefore, we think that it is appropriate to extend

Ricketts’ holding to cases in which the parents are not married. See also C. Callahan et

al., MARYLAND FAMILY LAW § 5-57 (5th Ed. 2011) (Ricketts stands for the proposition

“that a trial judge is not limited to exercising its equity jurisdiction to determine custody

only to those situations where the parents are living separate and apart.”).

    Moreover, as we have noted, in 2015 the circuit court entered an order granting the

parties joint custody over K. The court retains jurisdiction over custody even if the


1
  See also Santo v. Santo, 448 Md. 620, 637 (2016) (The appropriate approach to the
interpretation of FL § 5-203 is “‘not whether the General Assembly has granted a power,
but whether it has attempted to limit a power that exists as part of the inherent authority
of the court.’”(quoting Taylor v. Taylor, 306 Md. 290, 298 (1986) (bracketing omitted,
emphasis added in Santo).


                                             -4-
parents subsequently live under the same roof or if they resume cohabitation. 2 Upon

remand, the circuit court must consider the merits of Mr. Holbrook’s petition for custody.



           THE JUDGMENT OF THE CIRCUIT COURT FOR CECIL COUNTY IS
           REVERSED AND THIS CASE IS REMANDED FOR FURTHER
           PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE
           PAID BY APPELLEE.




2
    The distinction is explained in Ricketts:
           By the phrase “live under the same roof,” we mean that the parties are
           technically living together but are not cohabitating, sharing the same bedroom or
           engaging in marital relations. “Cohabitation,” we have explained, describes a
           relationship of living together “as man and wife,” and connotes the mutual
           assumption of the duties and obligations associated with marriage. Gordon v.
           Gordon, 342 Md. 294, 308 (1996). See Black’s Law Dictionary 260 (6th ed.
           1990) (citations omitted) (“[t]o live together as husband and wife. The mutual
           assumption of those marital rights, duties and obligations which are usually
           manifested by married people, including but not necessarily dependent on sexual
           relations.”).
Ricketts, 393 Md. at 484 n.1.


                                                -5-
