Maryland Residential Custody Laws

23Apr

Pretty much anyone who has had to deal with residential custody issues in Maryland knows that the standard for determining a minor child’s custody is the “best interest” test, which seems to be a vague notion at first glance.  Afterall, what determines what is in the best interest of a child or children without saying more about it.  A study of Maryland case law, however, provides some guidance on this subject.

Some of the factors that are considered in deciding what is in the best interest of a child are 1) Fitness of the party seeking child custody, 2) Adaptability of the prospective custodial parent to the task of raising the child, 3) Age, sex, and health of the child (and which parent could best accommodate them), 4) Physical and moral wellbeing of the child, 5) The child’s environment, and 6) The influence likely to be exerted on the child.  Gillespie v. Gillespie, 206 Md.App. 146 (2012).  In some cases, applying the facts to these factors may result in a court order that awards sole residential custody of a child to one parent or joint residential custody to both parents.  Under the Equal Protection Clauses of Maryland and U.S. Constitutions, a court may not consider a parent’s gender as a factor in deciding the custody of a child.

The issue can become more complicated when considering some of the factors and applying the parties’ life-style to them.  For example, many clients expect that their spouse’s adultery should be a determining factor in deciding their minor child’s residential custody, particularly when the moral wellbeing of a child is a stated factor in deciding the child’s best interest.  But adultery does not become a factor if the child has not been exposed to it. Swain v. Swain 43 Md.App 622 (1979).  In other words, a child is not negatively impacted by an adultery that s/he has not been exposed to; obviously, it would be a different situation if an adulterous relationship took place in the presence of a child but that is not a common scenario, and a parent who has exposed the child to his/her adultery probably has neglected the child in many other ways that would negatively impact that parent’s request for custody.

The household where the child resides (or is expected to reside) and its adequacy play a major role in deciding the issue of child custody in Maryland.  If the parents have already separated and do not live close to each other after their separation, the parent remaining in the family home where the child resided prior to separation has an advantage because an argument can be made that staying in the marital home would bring stability to the child’s life; in many cases that would allow the child to continue to attend the same school, and maintain the child’s bonds with the his/her friends in the same neighborhood.  If you are seeking custody of your child(ren), it would not be prudent to remove yourself from the family home and relocate far from it unless the custody and visitation issues have already been decided by a valid parental agreement or as part of a separation and property settlement agreement.

It is noteworthy that trial courts are prohibited from awarding custody to a parent at a distant future, Schaefer v. Cusak, 124 Md.App 288 (1998), i.e. awarding sole residential custody to one parent but also awarding custody to be changed to joint residential custody 2 years from the trial date. A court custody order is always subject to modification and a parent can petition the court to change the custody schedule provided that there were material and/or significant change in circumstances since the court last entered a custody order that would justify modifying it.

Make sure to review our family law FAQ page for additional information regarding Maryland custody laws. Contact us for an appointment if you would like to schedule a consultation for additional information, or are seeking experienced, aggressive representation in your custody case in Maryland. www.kamkarilaw.com (301) 309-9002.

 

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Valuation of Business in Divorce Cases in Maryland

26Mar

Maryland courts undertake a three-step process to determine whether a monetary award should be granted for a property, and if so, how much. The three (3) step process is: A) Determining whether a property is marital, B) Determining the value of the property that is determined to be marital, and C) Considering the statutory factors in deciding the equitable division of martial assets and the amount of monetary award.
Determining the value of a business is the subject of many litigated divorce cases. Often the parties have their respective valuation professionals that present the court with divergent and much disputed testimony regarding the value of a marital business at their divorce trial. Under Maryland law, value is defined as fair market value, and fair market value is “the amount at which property would change hands between a willing buyer and a willing seller.” Rosenberg v. Rosenberg, 64 Md.App 487, 497A.2d 485 (1985).

The second question in determining the value of a business is how to address Goodwill. Maryland courts addressed the definition of Goodwill and distinguished it between a business asset and an individual’s good reputation. Prahinski v. Prahinski, 321 Md 227, 582 A.2d 784 (1990). The Prahinski court stated that “for professional Goodwill to be marital property, it must be a business asset having a value independent of the continued presence or reputation of any particular individual.” The court distinguished the two. First, where Goodwill is a marketable business asset distinct from the personal reputation of a particular individual, as is usually the case with many businesses, that Goodwill has an immediately discernible value as an asset of the business and may be identified as an amount reflected in a sale or transfer of a business. Second, if the Goodwill depends on the continued presence of a particular individual, such Goodwill, by definition, is not a marketable asset distinct from the individual. Personal Goodwill associated with a dentist, for example, would most likely not be considered a marital asset as the Goodwill is generally dependent on the reputation of the dentist. The Goodwill of a restaurant, on the other hand, would probably be considered a marital asset because it is independent of its owner.

It would be of no surprise, of course, that different valuation professionals would allocate a different amount for the Goodwill if it should be considered in valuation of a marital property.

Feel free to call us (301-309-9002) if you are seeking experienced, aggressive representation in your divorce and/or custody case in Maryland.

Setting Aside Separation Agreements in Maryland

22Oct

In Maryland, it is very challenging to set aside a Marital Settlement Agreement, commonly also known as a Separation Agreement or Separation and Property Settlement Agreement (hereinafter referred to as “Separation Agreement”). While there are numerous ways to attack a Maryland Separation Agreement, the likelihood of success is low, primarily because under Maryland law Separation Agreements are presumptively valid. The law presumes that every adult has the capacity to enter into a valid contract, and a Separation Agreement is considered a contract in Maryland.

The spouse attacking the Separation Agreement has the burden of proving that it should be set aside. If the Separation Agreement was obtained by fraud, duress, undue influence, or collusion, it will not be enforceable. Also, if the terms of the Separation Agreement shock the conscience of the court, the court may refuse to enforce it or may limit the application of any unconscionable terms.

To establish fraud, the attacking spouse must prove that the other spouse either concealed or misrepresented a material fact in order to induce him or her to enter into the Separation Agreement. Duress, coercion, and undue influence are proven by showing that the spouse attacking the Separation Agreement was compelled by the other spouse to do something that he or she wouldn’t otherwise have done.

If a spouse can convince the court that, due to force, threats, or coercive promises, he or she was unable to exert his or her free will with regard to consenting to the terms of the Separation Agreement, then he or she may be able to establish duress, coercion, or undue influence and have the Separation Agreement set aside. It is likely that the only evidence of these types of wrongdoing is the attacking spouse’s testimony, which probably will be contradicted by the other spouse’s testimony.

Another attack to a Maryland Separation Agreement is that its terms are unconscionable. In other words, the Separation Agreement is shockingly one-sided. For example, Maryland appellate courts have found separation agreements inequitable where one spouse received less than two percent of the total assets.

The attacking spouse also may claim incompetence or lack of capacity to contract. In a recent Maryland Court of Special Appeals case, the wife claimed she was incompetent based on her mental distress and her long history of bi-polar disorder. Ultimately, the Court found no evidence of permanent incompetence or incompetence at the time the wife signed the Separation Agreement. Because she had maintained employment, controlled her own checking account, made her own car payments, and entered into a contract to purchase real property, the Court deemed her competent to enter into the Maryland Separation Agreement.

If the attacking spouse can establish the existence of a “confidential relationship” between the spouses, then the burden shifts to the spouse who seeks enforcement of the Separation Agreement to establish its fairness and reasonableness. A confidential relationship occurs when one person reasonably expects the other to act in his or her best interests. The existence of a confidential relationship imposes a duty on the relied upon spouse to act fairly.

Establishing a confidential relationship will depend upon the facts. Some factors considered in determining whether a confidential relationship exists are age, intelligence, mental condition, education, business acumen, health, and degree of dependence on the other spouse. If the spouse who seeks to set aside the Maryland Separation Agreement is vulnerable, easily manipulated, poorly educated, unsophisticated, trusting, or in poor physical or mental health, there may be a greater likelihood of establishing a confidential relationship. There may be a greater chance that a confidential relationship exists if the attacking spouse has no (or little) familiarity with the marital assets, investments, expenses, and other financial matters.

Conversely, if the attacking spouse sought even minor changes to the Separation Agreement before it was signed, that action likely decreases the chances that a court will find the existence of a confidential relationship because that spouse demonstrated a lack of reliance on the other spouse to do what is fair by negotiating terms. If a confidential relationship is established, that merely shifts the burden to the relied upon spouse to prove the fairness and reasonableness of the Separation Agreement. No reported Maryland case has held that the existence of a confidential relationship alone is sufficient to set aside a Maryland Separation Agreement.

Furthermore, the spouse seeking to invalidate a Maryland Separation Agreement may have waived that right by accepting benefits under it. Once the spouse suspects a basis to set aside the Separation Agreement, he or she must stop accepting benefits under the Separation Agreement in order to improve the likelihood of setting it aside.

Contact our Maryland divorce lawyers (301-309-9002; ask@kamkarilaw.com) for an appointment if you are seeking experienced representation for reaching a Separation Agreement or an aggressive Maryland lawyer to represent you in your divorce case.

Employer’s Liability for Employee’s Car Accident in Maryland

22Oct

Maryland Business Law Regarding Employer’s Liability for Employee’s Car Accident.

The doctrine of respondeat superior, which has long been recognized in Maryland, holds an employer vicariously liable for the tortious conduct of an employee when the employee is acting within the scope of the employment relationship.  It is thus the general rule “that a master is liable for the acts which his servant does with the actual or apparent authority of the master, or which the servant does within the scope of his employment, or which the master ratifies with the knowledge of all the material facts.”   The rule, however, has been to some extent narrowed with respect to automobiles.  “On account of the extensive use of the motor vehicle with its accompanying dangers, the courts have realized that a strict application of the doctrine of respondeat superior in the modern commercial world would result in great injustice.”  “It is now held by the great weight of authority that a master will not be held responsible for negligent operation of a servant’s automobile, even though engaged at the time in furthering the master’s business unless the master expressly or impliedly consents to the use of the automobile, and … had the right to control the servant in its operation, or else the use of the automobile was of such vital importance in furthering the master’s business that his control over it might reasonably be inferred.”

The application of the doctrine “rests upon the power of control and direction which the superior has over the subordinate, and … does not arise when the servant is not actually or constructively under the direction and control of the master.”   In other words, the doctrine may be properly invoked to hold an employer liable if the master has, “expressly or impliedly, authorized the [servant] to use his personal vehicle in the execution of his duties, and the employee is in fact engaged in such endeavors at the time of the accident.”   Normally, therefore, while driving to and from his job site, an employee is not acting within the scope of his employment.  It is essentially the employee’s own responsibility to get to or from work.  Thus, the general rule is that absent special circumstances, an employer will not be vicariously liable for the negligent conduct of his employee occurring while the employee is traveling to or from work.

If there is no consent, express or implied, by the employer to the use of the employee’s automobile as the means of transportation to the place of employment, then the employer is not liable for the damages caused by employee’s car accident.  However, if the employer consents, expressly or impliedly, to the use of employee’s automobile as part of his employment, then the employer may be liable for the damages caused by the employee’s automobile accident in Maryland.  In other words, the doctrine of respondeat superior may be properly invoked if the master has, “expressly or impliedly, authorized the employee to use his personal vehicle in the execution of his duties, and the employee is in fact engaged in such endeavors at the time of the accident.”   Normally, therefore, while driving to and from his job site, an employee is not considered to have been acting within the scope of his employment.  It is essentially the employee’s own responsibility to get to or from work.  Thus, the general rule is that absent special circumstances, an employer will not be vicariously liable for the negligent conduct of his employee occurring while the employee is traveling to or from work.

Some “special circumstances” that have led to the employer’s vicarious liability for employee’s car accident are whether the employee’s position with employer require driving on a regular basis.  If an employee does not have the option of using alternative means of transportation to work, the employee’s use of his own vehicle then does not become a matter of choice or personal convenience.  If employee’s use of personal automobile at the time of accident was in furtherance of employee’s business then the employer may be held liable for damages caused by the employee’s car accident in Maryland.

An experienced Maryland business lawyer can minimize your liability for your business activities by implementing the right structure, policies, and procedures that protect you under the law.  Contact us for an appointment (301-309-9002; ask@kamkarilaw.com) if you need additional information from Maryland business lawyers regarding Maryland business laws, buying or selling a business in Maryland, forming new Maryland business entities (Maryland corporation, LLCs, PCs, etc), or if you are seeking aggressive representation regarding your business dispute and/or commercial litigation.

Some excerpts from the Maryland Court of Appeals decisions in Dhanraj v. Potomac Electric Power Co., 305 Md. 623, 506 A.2d 224 (1986), and Oaks v. Connors, 339 Md. 24, 660 A.2d 423 (Md., 1994).

Duty of Corporate Directors to Shareholders in Maryland

12Oct

Generally, a board of directors manages the business and affairs of a corporation in Maryland.  Unless a transaction or decision must, under Maryland law or under the corporate charter, be approved by the shareholders, the directors exercise the powers of the corporation-either directly or by virtue of the officers they appoint. See C.A. § 2–405.1(b). Ordinarily, shareholders are not permitted to interfere in the management of the company. This is because they are the owners of the company, but not its managers. Thus, “any exercise of the corporate power to institute litigation and the control of any litigation to which the corporation becomes a party rests with the directors or, by delegation, the officers they appoint.”

As a check on this broad managerial authority, directors’ actions in Maryland are subject to fiduciary duties. Originally, corporate directors, with respect to management of the corporation, owed fiduciary duties of care and loyalty to both the corporation and the shareholders. Over time, however, the law became that, generally, directors owed corporate management duties to the corporation alone—not the shareholders. The standard of care owed by directors to the corporation is currently codified at C.A. § 2–405.1, which requires directors to perform their duties (1) “in good faith;” (2) “in a manner reasonably believed to be in the corporation’s best interests;” and (3) “with the care that an ordinarily prudent person in a like position would use under similar circumstances.” C.A. § 2–405.1(a). The statute effectively constitutes a limitation on liability to the corporation that would otherwise exist under common law.

Because directors’ fiduciary duties relating to management do not extend to shareholders, a minority shareholder in Maryland generally does not have a direct action for breach of those duties against the directors, except in cases affecting fundamental shareholder rights ( e.g., a shareholder’s right to require the corporation to buy its stock, known as an appraisal right). As a result, the shareholder’s derivative action developed at common law “in the mid–19th Century as an extraordinary equitable device to enable shareholders to enforce a corporate right that the corporation failed to assert on its own behalf.”

A corporate derivative action is essentially a suit by the shareholders to compel the corporation to sue and, simultaneously, a suit by the corporation, asserted by the shareholder on its behalf, against a defendant or defendants.  This type of suit is derivative because the plaintiff “derives” its right to sue from the ability of the entity whose rights the plaintiff is asserting. Usually, the proceeding is only necessary for minority shareholders, since a majority or controlling shareholder can typically persuade the corporation to sue in its own name.

An action for damages for injuries to a corporation must be brought derivatively in the name of the corporation. In other words, “if the wrong alleged was committed against the corporation, then the stockholder may not sue individually but only derivatively.”  Conversely, “if the wrong alleged was committed against the stockholder rather than the corporation, then the stockholder must bring the action as a direct action—either individually or as a representative of a class—and not as a derivative action.”

Reasons for derivative actions include: (1) the prevention of several lawsuits by shareholders against the same defendants; (2) protection of corporate creditors by putting assets back into the corporation; and (3) protection of all shareholder interests by increasing the value of their shares. At the same time, derivative suits adequately compensate claimant shareholders by increasing the value of their shares.

In part because a derivative action intrudes on directors’ managerial prerogatives, the law limits shareholders’ ability to bring such actions. Before filing suit on behalf of the corporation, shareholders must first make a good faith effort to have the corporation act directly. This effort is known as making “demand” upon the corporation. Once demand is made, the board of directors must conduct an investigation into the allegations in the demand, and decide whether litigation would be in the corporation’s best interests.  The board can appoint a committee of disinterested directors to undertake this investigation. If the corporation fails to bring suit, the shareholders may then bring a “demand refused” action. The plaintiff can still allege that the board, in fact, did not act independently, or that the board’s refusal to bring suit was wrong.  To determine whether the board wrongly refused to bring suit, courts review the board’s investigation under the strict business judgment rule. Id. Under that rule, courts defer to the board or committee’s decision not to bring suit “unless the stockholders can show either that the board or committee’s investigation or decision was not conducted independently and in good faith, or that it was not within the realm of sound business judgment.”

Shareholders can avoid the demand requirement only if demand is excused as “futile.” The futility exception is viewed as a very limited exception, to be applied only when the allegations or evidence clearly demonstrate, in a very particular manner, either that (1) a demand, or a delay in awaiting a response to a demand, would cause irreparable harm to the corporation, or (2) a majority of the directors are so personally and directly conflicted or committed to the decision in dispute that they cannot reasonably be expected to respond to a demand in good faith and within the ambit of the business judgment rule.

We aggressively represent clients in various commercial litigation matters ranging from shareholder and partnership disputes, breach of contract disputes, lawsuit between different entities such as corporations and LLCs.  Call us for an appointment if you need additional information from a Maryland business trial lawyer regarding representation in a business lawsuit. (301-309-9002; ask@kamkarilaw.com).

Excerpts from the Maryland Court of Special Appeals in George Wasserman & Janice Wasserman Goldsten Family LLC v. Kay, 197 Md.App. 586, 14 A.3d 1193 (Md. App., 2011).

Divorce & Custody in Maryland When Spouses Live Together

12Oct

The Court of Appeals of Maryland decided in Ricketts v. Ricketts, 903 A2d 857, 393 Md 479 (2006) that a spouse could file and maintain a case for limited divorce and custody even if the couple live together. The Court’s decision in Ricketts stands for the proposition that withholding marital relations could be a ground for limited divorce in Maryland based on constructive desertion, and the parties do not necessarily have to live separate and apart in separate residences to obtain a divorce.  The Maryland Court of Appeals essentially reasoned that the requirement that the parties “live apart” before they can file for limited divorce based on constructive desertion should be looked in the context of marriage and it could be defined as “ceasing to live together as husband and wife.”  The Court also looked at some precedent and decided that the circuit courts have jurisdiction to decide a custody dispute between divorcing parties even if they live together.  The Court cited to the following lanaguage from Mower v. Mower, 209 Md. 413, 121 A.2d 185 (1956): Where a complaint for divorce ”also prays for custody of a minor child and for its support and maintenance, and the divorce is denied, the bill should not be dismissed but custody should be awarded and jurisdiction should be retained for the purpose of awarding support and maintenance if the circumstances should warrant such action.”

Contact our Maryland divorce lawyers for an appointment (301-309-9002; ask@kamkarilaw.com) if you are seeking experienced, aggressive representation in your divorce and/or custody case.

“Respond to every call that excites your spirit. Ignore those that make you fearful and sad, that degrade you back toward disease and death.”  RUMI