       HEADNOTE: Jonathan Rose v. Andrea Rose, No. 432, September 2017 Term

    CHILD SUPPORT — USE OF “SHARED PHYSICAL CUSTODY” TO
CALCULATE SUPPORT UNDER MARYLAND CHILD SUPPORT GUIDELINES
— APPLICATION OF FAMILY LAW ARTICLE SECTION 12-201(n).

       As part of their divorce, Jonathan Rose and Andrea Rose executed a comprehensive
Separation and Property Settlement Agreement (“Agreement”). The Agreement provided
that child support would be recalculated annually using the Maryland Child Support
Guidelines. Although a Consent Custody Order entered into by the parties provided
Jonathan with 35%-36% of the annual overnights with the children, Andrea presented
evidence that Jonathan never kept the children more than 35% of the overnights.
Accordingly, Andrea argued that Jonathan was not entitled to have his child support
calculated under the “shared physical custody” provisions of the Guidelines. The circuit
court decided not to receive evidence concerning the actual number of overnights Jonathan
kept the children. Instead, the court calculated child support by relying on the number of
overnights awarded in the Consent Custody Order, and therefore used the shared physical
custody formula.

       Held: Judgment of the circuit court reversed and case remanded for further
proceedings. The plain language of section 12-201(n)(1) of the Family Law Article (“FL”)
requires a parent to keep a child more than 35% of the overnights in order to receive the
benefit of shared physical custody for child support purposes. If a parent establishes that
he or she actually keeps the child overnight for more than 35% of the year, the court’s
analysis should begin and end with FL § 12-201(n)(1).

       If, on the other hand, a parent cannot demonstrate that he or she keeps the child for
more than 35% of the overnights even though the extant visitation order awards that parent
more than 35% of the overnight visitation, the court may, in its discretion, nevertheless use
the shared physical custody child support formula as authorized by FL § 12-201(n)(2). In
exercising its discretion under FL § 12-201(n)(2), the court may consider evidence
concerning the parent’s failure to keep the child more than 35% of the overnights as
awarded in the visitation order.

       On remand, the circuit court should make the threshold factual determination under
FL § 12-201(n)(1) whether Jonathan actually kept the children for more than 35% of the
overnights in a year. If there were legally sufficient evidence that Jonathan kept the
children more than 35% of the overnights, the statutory definition of “shared physical
custody” in FL § 12-201(n)(1) would be satisfied and child support would be calculated
accordingly. If, on the other hand, the evidence demonstrated that Jonathan had not met
the 35% of actual overnights threshold, Jonathan may request the court to use the shared
physical custody child support formula based on the amount of visitation awarded in the
Consent Custody Order, but only if the court determines that the Consent Custody Order
on its face gives Jonathan 35% or more of the overnights. Assuming that the Consent
Custody Order awards Jonathan more than 35% of the overnights, the court may then
exercise its considered discretion pursuant to FL § 12-201(n)(2) to calculate child support
based on shared physical custody.
Circuit Court for Montgomery County
Case No. 85056-FL

                                                   REPORTED

                                      IN THE COURT OF SPECIAL APPEALS

                                                 OF MARYLAND

                                                      No. 432

                                              September Term, 2017



                                                JONATHAN ROSE

                                                         v.

                                                 ANDREA ROSE




                                         Friedman,
                                         Beachley,
                                         Moylan, Charles E.
                                           (Senior Judge, Specially Assigned),

                                                        JJ.


                                              Opinion by Beachley, J.



                                         Filed: February 1, 2018
       Jonathan Rose (“Jonathan”) appeals from a judgment of the Circuit Court for

Montgomery County denying his motion to terminate his alimony obligation to his former

wife, Andrea Rose (“Andrea”). Jonathan also appeals the circuit court’s denial of his

motion to alter or amend judgment related to the court’s determination that, pursuant to the

parties’ separation agreement, Jonathan owed $18,612.37 for expenses related to the

parties’ children. Jonathan presents the following issues on appeal, which we have slightly

rephrased:

       I.     Whether the circuit court erred when it gave dispositive weight to the fifth
              factor in Gordon v. Gordon, 342 Md. 294 (1996) (whether the cohabitants
              held themselves out as a married couple) when denying Jonathan’s motion
              to terminate alimony?

       II.    Whether the circuit court erred in its denial of Jonathan’s Motion to Amend
              or Alter Amended Judgment?

       Andrea noted a cross-appeal in which she challenges the circuit court’s calculation

of child support. We condense Andrea’s questions presented into a single issue: Did the

circuit court err in utilizing the “shared physical custody” formula contained in the

Maryland Child Support Guidelines where the evidence demonstrated that Jonathan had

not actually kept the children more than 35% of the overnights as required by the

Guidelines?

       For the reasons that follow, we shall reverse the circuit court on its child support

determination, but otherwise affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND

      The parties were divorced by a judgment entered on December 14, 2011. That

judgment incorporated, but did not merge, the parties’ Separation and Property Settlement

Agreement (“Agreement”) dated December 9, 2011.           The Agreement provided that

Jonathan would pay non-modifiable alimony for a term of eight years beginning January

1, 2012, and ending December 31, 2019. The Agreement further provided that Jonathan’s

alimony obligation would terminate “upon the earlier of (a) Jonathan’s death; (b) Andrea’s

death; (c) Andrea’s remarriage; (d) Andrea’s cohabitation (as defined by Gordon v.

Gordon, 675 A.2d 540 (1996)), or [(e)] December 31, 2019.”

      In June 2016, Jonathan filed a “Motion to Confirm Termination of Alimony

Pursuant to the Separation and Property Settlement Agreement.” In his motion, Jonathan

alleged that Andrea “is and/or has been cohabitating (as defined by the Settlement

Agreement) with Michael Chreky since at least August 2015.” Jonathan therefore sought

termination of his alimony obligation as well as reimbursement from Andrea for any

alimony payments Jonathan made while she was cohabiting with Mr. Chreky.

      The circuit court received evidence on Jonathan’s motion to terminate alimony on

October 27, 2016, and November 3, 2016.            Because their Agreement expressly

incorporated Gordon’s definition of cohabitation as a terminating event for the payment of

alimony, both parties produced evidence concerning Gordon’s non-exhaustive list of

factors relevant to determining cohabitation. At the conclusion of the evidence, the trial

court evaluated each of the five factors enumerated in Gordon and determined that the



                                            2
evidence was insufficient to establish cohabitation between Andrea and Mr. Chreky.

Accordingly, the court denied Jonathan’s request to terminate alimony.

       The circuit court also heard Andrea’s motions concerning her request to recalculate

child support pursuant to the Agreement, as well as her claim for reimbursement of “shared

expenses” related to the children’s education, health care, and extracurricular activities. As

to child support, the Agreement provided that, beginning in 2013, the parties would

annually “recalculate Jonathan’s child support obligation based upon the Maryland Child

Support Guidelines[.]”

       The parties disagreed whether Jonathan’s child support obligation should be

calculated based on the “shared” or “sole” custody formula contained in the Guidelines.

Jonathan contended that because the Consent Custody Order, agreed to by the parties in

2010, gives him the authority to exercise visitation for five out of every fourteen

overnights, or 36% of all overnights, he met the 35% threshold for “shared custody” as

provided in the Guidelines. Andrea contended that the determinative factor for child

support purposes is the actual number of overnights that a parent keeps a child. Because

Andrea produced evidence that for the years 2012 through 2015, inclusive, Jonathan only

kept the children for 26% to 33% of all overnights, she argued that Jonathan did not meet

the 35% threshold for shared custody as set forth in the Guidelines. Rather, she contended

that child support should be calculated using the sole custody formula. Agreeing with

Jonathan, the circuit court relied on the overnights awarded in the Consent Custody Order

and used the shared custody formula to calculate child support, leading to Andrea’s cross-

appeal.

                                              3
      Finally, the court found that Jonathan owed Andrea $18,612.37 in shared expenses

related to the children as provided in the Agreement. As a result of that determination,

Jonathan filed a “Motion to Amend or Alter Amended Judgment,” the substance of which

we will discuss infra. The court denied that motion, which Jonathan challenges on appeal.

I. Jonathan’s Motion to Terminate Alimony

      The parties agree that the following provision contained in Paragraph 10 of their

Agreement governs whether Jonathan is entitled to terminate his alimony obligation:

             Jonathan’s alimony obligation shall terminate, except as to any
      arrearages, upon the earlier of (a) Jonathan’s death; (b) Andrea’s death; (c)
      Andrea’s remarriage; (d) Andrea’s cohabitation (as defined by Gordon v.
      Gordon, 675 A.2d 540 (1996)), or [(e)] December 31, 2019, whichever
      occurs first.

The parties further agree that the only potential terminating event relevant here is

subsection (d) of Paragraph 10—whether Andrea was cohabiting with Mr. Chreky as

defined by Gordon.

      Because the parties incorporated Gordon’s definition of cohabitation in their

Agreement, we begin our analysis by reciting the Gordon Court’s definition of

“cohabitation:”

              We conclude that the term “cohabitation” implies more than merely a
      common residence or a sexual relationship. We believe the ordinary
      definition of “cohabitation,” describing a relationship of living together “as
      man and wife,” connotes mutual assumption of the duties and obligations
      associated with marriage. To guide trial courts in applying this definition,
      we have formulated a list of factors to consider in determining whether a
      relationship constitutes cohabitation. We emphasize, however, that the list
      is non-exhaustive, and that no one factor serves as an absolute prerequisite
      for cohabitation. In interpreting “cohabitation,” courts may consider indicia
      such as:


                                            4
              1. establishment of a common residence;
              2. long-term intimate or romantic involvement;
              3. shared assets or common bank accounts;
              4. joint contribution to household expenses; and
              5. recognition of the relationship by the community.

342 Md. at 308-09 (footnotes omitted).

         A. The Parties’ Contentions

       Jonathan asserts that the circuit court “unequivocally” found that the evidence

established the first four Gordon factors. In his opening brief, Jonathan’s principal

challenge is that the trial court erred in its application of Gordon’s fifth factor. In his view,

because the Court of Appeals in Gordon “expressly declined to require that couples hold

themselves out to be spouses to be deemed ‘cohabitating,’” the court erred when it gave

“dispositive weight” to its factual determination that there was no evidence as to how

Andrea and Mr. Chreky held themselves out to the community. Alternatively, Jonathan

posits that “there was evidence presented that Ms. Rose and Mr. Chreky held themselves

out as a cohabitating couple to their families.”

       Andrea disagrees with Jonathan’s interpretation of the trial court’s determinations

pertaining to the first four Gordon factors. While she acknowledges that the court found

the existence of a common residence (factor one) and a long-term intimate or romantic

relationship between herself and Mr. Chreky (factor two), she disputes Jonathan’s assertion

that the court’s findings as to the third and fourth factors (shared assets or common bank

accounts, and joint contribution to household expenses) favored a finding of cohabitation.

To the contrary, Andrea claims that the court found that the evidence did not support these

factors, thereby supporting her contention that she was not cohabiting with Mr. Chreky.

                                               5
As to the fifth factor, Andrea asserts that the trial court correctly concluded that “there

wasn’t one shred of evidence from anybody as to how they held themselves out.” Andrea

therefore argues that, after weighing all of the relevant factors, the court appropriately

determined that the evidence did not establish “cohabitation” as defined in Gordon.

           B. The Trial Court’s Decision

       In rendering its bench opinion, the trial court initially noted that the parties expressly

incorporated Gordon’s definition of cohabitation as one of the terminating events for the

payment of alimony. The court proceeded to consider each of the indicia of cohabitation

as enumerated in Gordon.        The court found the existence of the first two factors:

establishment of a common residence and a long-term intimate relationship between

Andrea and Mr. Chreky.1         As to the third factor—shared assets or common bank

accounts—the court stated that “[t]hey haven’t shared any assets beyond the house.” The

court expressly determined that Andrea and Mr. Chreky had no common bank accounts.

Although Andrea had made loans to Mr. Chreky, the court noted that Mr. Chreky repaid

those loans with interest. The court concluded, “So with respect to the common bank

accounts and the lending of money, [the court] thinks that militates in [Andrea’s] favor.”




       1
         Jonathan argues that because the court found that Andrea and Mr. Chreky
attempted to conceal their true living arrangement, the court erred in not finding
cohabitation. Because the court resolved the first two factors from Gordon in Jonathan’s
favor, we reject this contention.


                                               6
       Moving to the fourth Gordon factor—joint contribution to household expenses—

the court found that, although Mr. Chreky made some non-monetary contributions to

Andrea’s household,2 there were no joint contributions to household expenses.

       In considering Gordon’s fifth factor—recognition of the relationship by the

community—the trial court recognized Gordon’s admonition that Maryland law does not

“interpret ‘cohabitation’ to require the couple to hold themselves out as spouses.” 342 Md.

at 309. The court then stated that “there wasn’t one shred of evidence from anybody as to

how [Andrea and Mr. Chreky] held themselves out.”

       After reviewing the evidence related to each of the five Gordon factors, the trial

judge concluded that “when I weigh all of the factors together, I’m not convinced that there

was cohabitation under [Gordon].” Though the court opined that this was a “close” case,

it ultimately determined, “under all the facts and circumstances of this relationship,” that

cohabitation between Andrea and Mr. Chreky had not been established.              The court

consequently denied Jonathan’s motion to terminate alimony.

           C. Standard of Review

       In Gordon, the Court of Appeals stated that “[t]he determination of whether an

arrangement constitutes ‘cohabitation’ is a factual issue to be decided on the specific facts

of each case.” Id. at 304 (citing In re Marriage of Edwards, 698 P.2d 542, 546 (Or. Ct.

App. 1985)). See also Ricketts v. Ricketts, 393 Md. 479, 485 n.3 (2006) (“Whether the



       2
         These non-monetary contributions included walking the dogs and taking the
children to school.

                                             7
parties cohabited, or not, is clearly a question of fact.”). Accordingly, the “clearly

erroneous” standard of review applies to the trial court’s determination here that the

evidence failed to prove that Andrea and Mr. Chreky were cohabiting. Under that standard

of review, “[a]s long as the trial court’s findings of fact are not clearly erroneous and the

ultimate decision is not arbitrary, we will affirm it, even if we might have reached a

different result.” Malin v. Mininberg, 153 Md. App. 358, 415 (2003). Where, however, a

decision “involves an interpretation and application of statutory and case law, the appellate

court must determine whether the circuit court’s conclusions are ‘legally correct’ under a

de novo standard of review.” Brandenburg v. LaBarre, 193 Md. App. 178, 186 (2010).

         D. Discussion

       We initially note that neither party challenges the trial court’s use of Gordon as its

legal guidepost for determining whether Andrea cohabited with Mr. Chreky. Any such

challenge would be fruitless in that the parties explicitly incorporated Gordon’s definition

of cohabitation in their Agreement.

       We conclude that the trial court’s factual findings as to the five Gordon factors were

not clearly erroneous. As noted previously, the parties do not dispute the court’s findings

that Andrea and Mr. Chreky had established a common residence and maintained a long-

term intimate relationship. Contrary to Jonathan’s assertion, the court determined that the

third Gordon factor—shared assets or common bank accounts—weighed against a finding

of cohabitation, expressly finding that “[t]hey haven’t shared any assets beyond the house.”

In addressing Gordon’s fourth factor, the court found that there were no joint contributions

to household expenses. Again, contrary to Jonathan’s assertion, that finding weighed

                                             8
against a determination of cohabitation in this case. In short, Jonathan misinterprets the

trial court’s conclusions as to Gordon’s third and fourth factors.

       As to Gordon’s fifth factor—recognition of the relationship by the community—

Jonathan is correct that the Court of Appeals stated “we do not interpret ‘cohabitation’ to

require the couple to hold themselves out as spouses.” 342 Md. at 309. Citing Sitarek v.

Sitarek, 179 A.D.2d 1064, 1065 (N.Y. App. Div. 1993), the Gordon Court contrasted New

York’s concept of “cohabitation,” which requires proof of the parties holding themselves

out as a married couple. 342 Md. at 309. Instead, Gordon merely relegates “recognition

of the relationship by the community” as one factor in the “cohabitation” analysis. In

addition, the Court provided further guidance concerning the meaning of that fifth factor:

              We include the fifth factor, recognition of the relationship by the
       community, however, to address situations where parties have celebrated an
       unofficial marriage ceremony, wear wedding rings, use each others’ names,
       or otherwise indicate to the community that they are married.

Id. (emphasis added).

       Applying Gordon’s fifth factor to the case at bar, there was no evidence that Andrea

and Mr. Chreky celebrated an unofficial marriage ceremony, wore wedding rings, or used

each other’s names. Likewise, there was no evidence that Andrea and Mr. Chreky held

themselves out to the community as a married couple.3 The trial court was therefore correct

in determining that the fifth factor weighed against a finding of cohabitation.


       3
        As to Gordon’s fifth factor, Jonathan relies on evidence that Mr. Chreky’s daughter
also resided in Andrea’s household; that Mr. Chreky and his daughter enjoyed family
vacations with Andrea and her children; that Mr. Chreky’s mother stayed in Andrea’s home
for a period of time; and that Andrea and Mr. Chreky held a religious party to celebrate

                                             9
       After evaluating each of the Gordon factors, the trial judge stated that “I’m not

convinced that there was cohabitation” as defined in Gordon and “I just don’t believe that

there was a de facto marriage here.” The trial court’s determination is consistent with

Gordon’s observation that “‘cohabitation’ implies more than merely a common residence

or a sexual relationship[,]” and that it “connotes mutual assumption of the duties and

obligations associated with marriage.” Id. at 308. We conclude that the trial court’s factual

findings are not clearly erroneous and that its ultimate decision that Andrea did not cohabit

with Mr. Chreky is not arbitrary. Malin, 153 Md. App. at 415. Moreover, we reject

Jonathan’s contention that the court gave “dispositive weight” to Gordon’s fifth factor. It

did no such thing. We also unequivocally reject Jonathan’s suggestion that Gordon creates

a cohabitation scorecard in which the existence of three out of the five factors equates to a

finding of “cohabitation.” We reiterate that Gordon merely enumerates a non-exhaustive

list of factors intended to guide trial courts when called upon to determine whether

“cohabitation” has been established. We therefore affirm the circuit court’s denial of

Jonathan’s motion to terminate alimony.




their birthdays with extended families in attendance. While this evidence was relevant for
the purpose of evaluating the extent of Andrea’s relationship with Mr. Chreky, it had little
or no relevance to whether Andrea and Mr. Chreky held themselves out as a married
couple.

                                             10
II. Denial of Jonathan’s Motion to Alter or Amend Judgment

       On February 6, 2017, Jonathan filed, pursuant to Rule 2-534, a motion to alter or

amend the court’s judgment docketed on January 26, 2017.4 Jonathan’s Rule 2-534 motion

challenged both the circuit court’s denial of his motion to terminate alimony and its award

of $18,612.37 in favor of Andrea representing Jonathan’s share of expenses related to the

children. In his appellate brief, Jonathan’s challenge to the circuit court’s denial of his

motion to alter or amend is limited to the judgment against him for his share of the

children’s expenses. Accordingly, we shall limit our review of the court’s denial of

Jonathan’s motion to alter or amend as it pertains to the assessment of shared expenses for

the children.

       Maryland Rule 2-534 governs the court’s revisory power over judgments:

               In an action decided by the court, on motion of any party filed within
       ten days after entry of judgment, the court may open the judgment to receive
       additional evidence, may amend its findings or its statement of reasons for
       the decision, may set forth additional findings or reasons, may enter new
       findings or new reasons, may amend the judgment, or may enter a new
       judgment. A motion to alter or amend a judgment may be joined with a
       motion for new trial. A motion to alter or amend a judgment filed after the
       announcement or signing by the trial court of a judgment but before entry of
       the judgment on the docket shall be treated as filed on the same day as, but
       after, the entry on the docket.

Appellate review of a court’s ruling on a 2-534 motion is typically limited in scope.

Schlotzhauer v. Morton, 224 Md. App. 72, 84 (2015) (citing Cent. Truck Ctr. v. Cent. GMC,

Inc., 194 Md. App. 375, 397 (2010)).


       4
        Jonathan’s motion was titled “Motion to Amend or Alter Amended Judgment,
Pursuant to Rule 2-534, and For Other Relief.”

                                            11
       In general, the denial of a motion to alter or amend a judgment is reviewed
       by appellate courts for abuse of discretion. The relevance of an asserted legal
       error, of substantive law, procedural requirements, or fact-finding
       unsupported by substantial evidence, lies in whether there has been such an
       abuse.

Id. (internal citations omitted). We note, however, that a “court’s discretion is always

tempered by the requirement that the court correctly apply the law applicable to the case.”

Arrington v. State, 411 Md. 524, 552 (2009).

       The basis for Andrea’s claim for shared expenses is found in Paragraphs 7, 8, and 9

of the Agreement. In their Agreement, the following expenses related to the children were

to be shared on a pro rata basis according to the parties’ incomes: private school expenses

(Paragraph 7); extraordinary unreimbursed medical, dental, and therapy expenses

(Paragraph 8); and expenses for agreed-upon extra-curricular activities (Paragraph 9). At

trial, Andrea introduced an itemized list of expenses related to the children for which she

sought reimbursement from Jonathan based on their respective incomes. The court

ultimately accepted Andrea’s itemized list of shared expenses and ordered Jonathan to pay

Andrea $18,612.37 representing his pro rata share of those expenses.

       On appeal, Jonathan disputes the reimbursement for three reasons. First, he claims

that some of the expenses Andrea submitted did not qualify as reimbursable expenses under

the Agreement. Second, Jonathan contends that the court erroneously precluded him from

testifying about the shared expenses Andrea claimed. Third, Jonathan asserts that he “paid

a number of child-related expenses for which he had not been reimbursed.”

       We can summarily dismiss Jonathan’s third argument. After Andrea’s counsel

noted that Jonathan refused to answer any discovery pertaining to shared expenses

                                             12
Jonathan allegedly paid on behalf of the children, Jonathan’s counsel stated, “[Jonathan’s]

not asking for an offset for what he’s paying.” That statement, in our view, constituted a

waiver of any reimbursement claim Jonathan may have had against Andrea for shared

expenses he paid on behalf of the children.

       As to Jonathan’s other two claims regarding the shared expenses, we note that

Andrea interposed an objection to Jonathan’s testimony concerning the shared expenses on

the basis that Jonathan failed to comply with Andrea’s pre-trial discovery requests directed

to that issue. The court sustained the objection, and precluded Jonathan from testifying on

the subject as a sanction for Jonathan’s discovery violation. When Jonathan’s counsel

asked the court if he could dispute whether some of Andrea’s claimed expenses qualified

for reimbursement under the Agreement, the court reiterated,

       No. Your client had the opportunity to dispute the expenses that he disputed,
       and he didn’t do it. And [the court] asked him to acknowledge these are the
       expenses. If you disagree these are expenses, tell us which one you disagree
       with . . . and he didn’t even answer it.

       We cannot say that the trial court abused its discretion. Maryland Rule 2-433(a)(3)

gives trial courts broad discretion to impose sanctions for discovery violations, ranging

from striking pleadings to dismissal. “Our review of the trial court’s resolution of a

discovery dispute is quite narrow; appellate courts are reluctant to second-guess the

decision of a trial judge to impose sanctions for a failure of discovery.” Sindler v. Litman,

166 Md. App. 90, 123 (2005). In Wilson v. John Crane, Inc., the Court of Appeals stated,

       There is an abuse of discretion ‘where no reasonable person would take the
       view adopted by the [trial] court[ ]’ . . . or when the court acts ‘without
       reference to any guiding rules or principles.’ An abuse of discretion may
       also be found where the ruling under consideration is ‘clearly against the

                                              13
       logic and effect of facts and inferences before the court[ ]’ . . . or when the
       ruling is ‘violative of fact and logic.’

       Questions within the discretion of the trial court are ‘much better decided by
       the trial judges than by appellate courts, and the decisions of such judges
       should only be disturbed where it is apparent that some serious error or abuse
       of discretion or autocratic action has occurred.’ In sum, to be reversed ‘[t]he
       decision under consideration has to be well removed from any center mark
       imagined by the reviewing court and beyond the fringe of what that court
       deems minimally acceptable.’

385 Md. 185, 198-99 (2005) (quoting In re Adoption/Guardianship No. 3598, 347 Md.

295, 312-13 (1997)). In light of Jonathan’s complete failure to provide discovery related

to the children’s shared expenses, we decline to second-guess the trial court’s decision to

preclude Jonathan from challenging whether those expenses were reimbursable under the

Agreement.

III. Calculation of Child Support

       In Andrea’s cross-appeal, she argues that because Jonathan never kept the children

more than 35% of the overnights in any year, the circuit court erred in using the “shared

physical custody” formula to calculate Jonathan’s child support obligation. Andrea’s

argument is based on Md. Code (1984, 2012 Repl. Vol., 2017 Supp.) § 12-201(n) of the

Family Law Article (“FL”) which defines “shared physical custody” as each parent

“keep[ing] the child or children overnight for more than 35% of the year[.]”5

       This issue was framed by the parties at the outset of trial when Jonathan moved for

summary judgment, arguing that the shared custody formula should apply because the


              5
                FL § 12-204(m) provides the specific formula to be used to calculate child
support in instances of “shared physical custody.”

                                             14
Consent Custody Order entitled him to keep the children for more than 35% of the annual

overnights. Andrea responded that the sole custody formula should apply because Jonathan

was not actually keeping the children for the statutorily prescribed 35% of the overnights.

The trial court denied Jonathan’s motion for summary judgment, stating that it would

receive evidence and make a determination based on its findings at trial.

       During trial, the court heard testimony from Andrea that, since the entry of the

Consent Custody Order, the children had not stayed overnight with Jonathan for more than

35% of the overnights in any given calendar year. The court also admitted into evidence a

custody calendar and notes Andrea composed, which indicated that Jonathan kept the

children for 33% of overnights in 2012, 28% of overnights in 2013, 26% of overnights in

2014, 26% of overnights in 2015, and 28% of overnights through March 6, 2016.

       Due to time constraints and scheduling concerns, the court refused to hear testimony

from Jonathan on this issue. Stating that there was not enough time to evaluate the

evidence, the court simply based the child support calculations on the amount of overnights

awarded in the Consent Custody Order:

       THE COURT:           Okay, I’ll say it again. We’re going to calculate the
                            guidelines based on the number of overnights he’s
                            scheduled for on the record or in their agreement.
                            That’s what we’re going to use to calculate the
                            guidelines.

                            I recognize her testimony is different. His testimony
                            is different from hers. I’m not going to take the time
                            -- and I think I said that to start with -- to go through
                            and see whose proof is the best for how many
                            overnights they had. I’m going to go with what the
                            agreement was. Okay? There’s no -- that’s just the
                            way we’re going to do it.

                                             15
                            It’s 25 minutes to 5:00. This is now day two. And
                            I’m not going to go through and have them litigate
                            each day that the kids did or didn’t come there, or
                            whether they were with the boyfriend, and he was
                            taking care of them, or whether they were in the
                            hospital. I’m not doing that. Okay?

                            I’m doing it based on however many overnights are
                            provided for on the record in this case. If he hasn’t
                            taken them, okay. He didn’t take them. He says he
                            did take them, and he took “X” nights with Andrew.
                            There’s a provision in there that if Sarah, who’s
                            having problems, doesn’t want to come with him all
                            the time, she doesn’t have to come with him. And
                            maybe your client kept track of all the times she did
                            or she didn’t come, or was out of town or wasn’t out
                            of town. We’re not going to go through that. They’ve
                            [sic] haven’t allotted enough time to do that.

                            I’m going to base the child support calculations, or
                            you are, on what’s in here. However many overnights
                            are provided for per year, in here, that’s what we’re
                            going by. All right? That’s my ruling.

(Emphasis added).

       Andrea argues on appeal that the trial court erred in basing Jonathan’s child support

obligation on the amount of overnights awarded in the Consent Custody Order. In her view,

a parent must keep the children more than 35% of the overnights per year in order to receive

the benefit of the shared custody formula for child support, pursuant to the Maryland Child

Support Guidelines. FL § 12-201 et seq. Because she produced evidence that Jonathan

did not keep the children more than 35% of the overnights in any prior year, Andrea argues

that the trial court was required to use the sole custody formula to calculate child support.

       Resolution of this case requires interpretation of FL § 12-201(n) which provides:


                                             16
       (n)(1) “Shared physical custody” means that each parent keeps the child or
       children overnight for more than 35% of the year and that both parents
       contribute to the expenses of the child or children in addition to the payment
       of child support.

       (2) Subject to paragraph (1) of this subsection, the court may base a child
       support award on shared physical custody:

              (i) solely on the amount of visitation awarded; and
              (ii) regardless of whether joint custody has been granted.

       We review de novo a trial court’s interpretation and application of a statute. Wyatt

v. State, 169 Md. App. 394, 400 (2006) (citing Cain v. State, 386 Md. 320, 327 (2005)). In

construing the meaning of a statute,

       The primary goal of statutory construction is “to discern the legislative
       purpose, the ends to be accomplished, or the evils to be remedied by a
       particular provision[.]” In so doing, we look first to the “normal, plain
       meaning of the language of the statute,” read as a whole so that “no word,
       clause, sentence or phrase is rendered surplusage, superfluous, meaningless
       or nugatory. . . .” Where the language of the statute is ambiguous and may
       be subject to more than one interpretation, however, we look to the statute’s
       legislative history, case law, purpose, structure, and overarching statutory
       scheme in aid of searching for the intention of the Legislature.

Whitley v. Maryland State Bd. of Elections, 429 Md. 132, 149 (2012) (citations and

quotation marks omitted).

       The plain language of FL § 12-201(n)(1) defines “shared physical custody” as

occurring when each parent “keeps” the child or children overnight for more than 35% of

the year and contributes to the expenses of the child or children in addition to child support

payments. Black’s Law Dictionary (10th ed. 2014) defines a “keeper” as “Someone who

has the care, custody, or management of something and who [usually] is legally responsible

for it.” We think that the plain meaning of the word “keeps” means to maintain actual


                                             17
possession, or in this case, for a child to actually stay with the parent overnight. We find

support for our interpretation of the word “keeps” in this context in Guidash v. Tome, 211

Md. App. 725 (2013). There, we described the 35% threshold for “shared physical

custody” as follows: “a child must stay overnight with each parent for a minimum of 128

nights[6] to trigger a shared custody child support calculation.” Id. at 748-49. Thus, if a

parent can demonstrate that a child stays with that parent more than 35% of the overnights

in a year, then “shared physical custody” is established, pursuant to FL § 12-201(n)(1), for

the calculation of child support.

       On the other hand, FL § 12-201(n)(2) provides that, “Subject to paragraph (1) of

this subsection, the court may base a child support award on shared physical custody: (i)

solely on the amount of visitation awarded[.]” (Emphasis added). The plain meaning of

this subsection makes two things clear. First, that FL § 12-201(n)(2) is subject to FL § 12-

201(n)(1), meaning that a court cannot grant child support based on shared physical

custody unless it first determines that the amount of visitation awarded in the extant order

exceeds 35% of the overnights per year. Second, the word “may,” by its definition,

generally “connotes a discretionary act, i.e., one that is not required.” Heit v. Stansbury,

199 Md. App. 155, 158 (2011). Although it is discretionary for a court to rely on a court-

ordered award of visitation when determining shared physical custody for child support

purposes, a court may only exercise such discretion after determining that the order actually

awards a parent more than 35% of the overnights per year. Cf. Lee v. Andochick, 182 Md.


       6
           128 overnights represents 35% of the overnights in a year.

                                              18
App. 268, 293-94 (2008) (holding that “court has discretion as to whether to base a child

support award on shared physical custody” under the predecessor to FL 12-201(n)(2)).

       A few examples based on common family law scenarios will assist in understanding

FL § 12-201(n). If a parent establishes that he or she actually keeps the child overnight for

more than 35% of the year, then the court’s analysis should begin and end with FL § 12-

201(n)(1). Under that scenario, the parent would be entitled to have child support based

on the shared physical custody formula set forth in FL § 12-204(m). If, on the other hand,

the parent cannot demonstrate that he or she keeps the child for more than 35% of the

overnights, then that parent may request the court to exercise its discretion pursuant to FL

§ 12-201(n)(2) to utilize the shared physical custody child support formula based on the

amount of visitation awarded. The court, however, may only exercise its discretion under

FL § 12-201(n)(2) if the amount of visitation awarded exceeds 35% of the overnights as

mandated in subsection (n)(1). In other words, (n)(1) requires the court to use the shared

physical custody formula for child support where a parent has actually kept the child for

more than 35% of the overnights, while (n)(2) permits the court, in its discretion, to use the

shared physical custody formula where a parent is awarded more than 35% of the

overnights, but has actually kept the child for 35% (or fewer) of the overnights.7



       7
        We note that a court could also rely on FL § 12-201(n)(2) to establish prospective
child support as part of an initial determination or modification of custody, provided that
the award gives a parent more than 35% of the overnights per year.




                                             19
       We now turn to apply FL § 12-201(n) to the instant case. After Andrea presented

evidence that Jonathan had never kept the children for more than 35% of the overnights in

any prior year, the trial court should have permitted Jonathan to present evidence to attempt

to prove that he had in fact kept the children more than 35% of the overnights in one or

more prior years. The trial court therefore erred by not making the threshold factual

determination under FL § 12-201(n)(1) whether Jonathan actually kept the children for

more than 35% of the overnights in a year. If there were legally sufficient evidence that

Jonathan kept the children more than 35% of the overnights, the statutory definition of

“shared physical custody” in FL § 12-201(n)(1) would be satisfied and child support would

be calculated accordingly. If, on the other hand, the evidence demonstrated that Jonathan

had not met the 35% of actual overnights threshold, Jonathan could request the court to use

the shared physical custody child support formula based on the amount of visitation

awarded in the Consent Custody Order, but only if the court determined that the Consent

Custody Order on its face gave Jonathan 35% or more of the overnights. 8 Assuming for

our purposes that the Consent Custody Order awarded Jonathan more than 35% of the

overnights, the court could then exercise its considered discretion to calculate child support

based on shared physical custody. In exercising its discretion, the court would likely need

to consider why the awarded visitation was not actually exercised by the parent. We cannot


       8
        In her brief, Andrea concedes that, under the Consent Custody Order, Jonathan
was awarded 35%-36% of the overnights beginning in February 2011. The circuit court
should determine the exact percentage on remand.



                                             20
possibly articulate the universe of relevant evidence in such cases, but relevant evidence

might include: 1) whether the primary custodial parent obstructed the non-custodial

parent’s overnight visitation; 2) whether a child was hospitalized or otherwise unable to be

with the non-custodial parent for overnight visitation; and 3) whether the parents, acting

jointly in the best interest of their child, agreed to temporarily limit overnight visitation

with the non-custodial parent. In sum, if a court determines that there is good reason for a

parent’s failure to keep a child more than 35% of the overnights as awarded in an order,

the court could, under subsection (n)(2), calculate child support based on shared physical

custody.

       For these reasons, we hold that the trial court erred by ignoring the plain meaning

of FL § 12-201(n). See Bass v. State, 206 Md. App. 1, 11 (2012) (stating that it is an abuse

of discretion to exercise discretion based upon an error of law). On remand, both parties

should be afforded the opportunity to present evidence relevant to determining the

appropriate child support formula as prescribed by FL § 12-201(n).9



       9
         We reject Jonathan’s argument that the circuit court did not have the authority to
calculate child support for the years 2013 through 2016. Jonathan’s argument is based on
FL § 12-101(a)(3), which provides: “For any other pleading that requests child support,
the court may award child support for a period from the filing of the pleading that requests
child support.” In Jonathan’s view, FL § 12-101(a)(3) precludes the court from awarding
child support for any period prior to April 29, 2016, the date Andrea filed her motion to
enforce recalculated child support. We reject Jonathan’s contention because Andrea
merely sought enforcement of paragraph 6 of the parties’ Separation and Property
Settlement Agreement, which expressly provides for an annual recalculation of child
support commencing in 2013. FL 12-101(a)(3) is therefore inapplicable. Further, we
express no view on the merits of Jonathan’s argument that the circuit court did not have
the statutory authority to make child support retroactive to 2013.

                                             21
JUDGMENT OF THE CIRCUIT COURT
FOR     MONTGOMERY        COUNTY
AFFIRMED IN PART AND REVERSED IN
PART. CASE REMANDED TO THAT
COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.
COSTS TO BE PAID BY APPELLANT.




 22
