Opinion
1751-2023
08-08-2024
JERROD FULLER v. EMILY FULLER
IN THE APPELLATE COURT OF MARYLAND UNREPORTED [*]
Circuit Court for Frederick County Case No.: C-10-FM-23-810396
Tang, Kehoe, S., Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ.
OPINION
TANG, J.
Jerrod Fuller ("Husband"), the appellant, appeals from the entry, by the Circuit Court for Frederick County, of a final protective order sought by his then-wife, Emily Fuller ("Wife"), the appellee. He asserts that (1) he was "denied due process"; (2) he was "denied the opportunity to submit a response before, during and after the hearing"; and (3) there was "overreach by the judge who challenged [his] Motion to Dismiss." Because we find no merit to his contentions, we shall affirm the judgment.
When the final protective order was entered, the parties were married. They are now divorced. See n.4, infra. Because they have the same surname, for clarity and ease of reading, we shall refer to Mr. Fuller as "Husband" and Ms. Fuller as "Wife."
Husband is pro se, as he was in the circuit court. Wife had counsel in the circuit court and is pro se in this appeal. She did not file an appellee brief.
BACKGROUND
On August 28, 2023, Wife filed, in the District Court of Maryland, sitting in Frederick County, a petition for relief from abuse by Husband on behalf of herself and their four minor children. She alleged that the day before, Sunday, August 27th, Husband entered her separate residence without permission. Wife was able to leave with the children before Husband arrived. Husband then sent her a message claiming she had kidnapped the children and stating that "he would tell police to shoot [her]."
Temporary Protective Order
The District Court commissioner issued an interim protective order in the early morning of August 28th. The hearing for the temporary protective order was scheduled for the next day, August 29th, at 10:00 a.m., before the District Court.
At the ex parte hearing, the District Court granted Wife a temporary protective order to remain in effect through September 5, 2023, and scheduled the final protective order hearing for 2:00 p.m. on September 5th. The District Court then transferred the case to the Circuit Court for Frederick County to hear the final protective order hearing.
See Md. Code, Family Law ("FL") § 4-505(a)(1) (1984, 2019 Repl. Vol.) ("If, after a hearing on a petition, whether ex parte or otherwise, a judge finds that there are reasonable grounds to believe that a person eligible for relief has been abused, the judge may enter a temporary protective order to protect any person eligible for relief from abuse.").
On September 5th, Wife appeared at the final protective order hearing in the circuit court, but Husband was not present. A docket entry indicates that the court extended the temporary protective order because the "Resp[ondent was] not served." The court then set a new date for the final protective order hearing for October 5th at 2:00 p.m.
On September 6th, Husband filed, in the circuit court, a motion to dismiss the case, citing "lack of subject matter jurisdiction[.]" The filing was stricken due to non-compliance with the Maryland Rules, but Husband re-filed the motion the next day. The court ordered that the motion be heard at the final protective order hearing.
Final Protective Order
On October 5th, Wife and her counsel appeared for the final protective order hearing. At first, Husband was not present; counsel advised that "[s]ervice is still not happening." As a result, the court agreed to extend the temporary protective order further. But the transcript indicates that Husband was in the courtroom after a recess. The record reflects that Husband "appeared late" and was "served in open court" with the "Petition and Temporary Protective Order[.]"
A contested hearing was held on Wife's request for a final protective order. The court first addressed Husband's Motion to Dismiss "for lack of subject jurisdiction[.]" Husband asserted that Frederick County is "not in our jurisdiction." When asked to explain, Husband stated: "[T]hat's something I believe the [c]ourt is supposed to prove." When the court noted that Wife allegedly resides in Frederick County, where the petition for protective order was filed, Husband asserted: "That has to be proven, if that can be proven to me we can proceed, but that needs to be proven." Based on that, the court "reserve[d] on the jurisdiction issue."
Before taking testimony, the court advised Husband of his right to assert his Fifth Amendment right not to testify. It also advised that he could elect to have a hearing or consent to the entry of the protective order without a finding of abuse. Husband did not want to consent to the entry of a protective order.
Husband expressed that he did not understand why he was there and wanted to know why there was "a [temporary] protective order on me when [Wife] has contacted me multiple times, not only after August 27th, the day of the incident, but also continuously after the protective order was in place? I have dates such as September, official evidence of email-[.]" The court interjected that Husband was getting into whether the final protective order should be granted; it advised Husband that Wife would present evidence and he would have the chance to question witnesses "and then we'll proceed from there." When Husband repeated that he did not understand, the court asked whether he wanted an attorney to represent him, to which Husband responded: "I do not." The court proceeded with the hearing.
Wife testified first. She stated that the parties married in 2014 and are the parents of four children, who, at the time of the hearing, ranged in age from three to eight. In June 2023, Wife left the marital home in Baltimore City and moved with the children to Frederick County. She testified that she moved following incidents of physical abuse by Husband.
Wife testified about the incident on Sunday, August 27th, that prompted the filing of the petition for protective order. Although the children had spent the summer in Frederick County and began school there on August 23rd, Husband told Wife that he intended to pick them up on Sunday, take them home to Baltimore City, and have them attend school there. Wife did not agree and told him that she preferred to wait and "do a custody hearing." But at around 8:00 p.m., Husband advised Wife that he was on his way to her residence to retrieve the children. Wife protested that the children, already in bed, were prepared to go to school the next day in Frederick County, and they would be traumatized if woken up and dragged back to Baltimore City. But Husband responded that he would wake the children up one by one, that it would be fine, and that he was on his way to get them.
We take judicial notice of the following. On August 16, 2023 (prior to filing the petition for a protective order), Wife filed a complaint in the Circuit Court for Frederick County in case number C-10-FM-23-001402, seeking sole legal and physical custody of the parties' children. She later amended the complaint to include a request for absolute divorce. Following a hearing, the court, by order entered on March 28, 2024, granted Wife an absolute divorce and sole legal and physical custody. Husband was awarded supervised visitation with the children. Husband noted two appeals in the divorce/custody case, which are docketed in this Court as No. 2374, Sept. Term, 2023 and No. 489, Sept. Term, 2024. Case No. 2374-2023 was dismissed by this Court. Case No. 489-2023 is presently pending.
Wife then took the children to a hotel for the night because she was scared. She explained that a few weeks earlier, Husband had come to her Frederick residence with his teenage daughter who assaulted her. Husband chased Wife around the house and locked her in a room. At one point, she was holding one of her children and Husband "was pulling" the child from her arms, which resulted in Wife calling the police.
Wife also testified that, before her leaving the marital home in Baltimore City, Husband "was physically violent towards [her] and it was in front of the children." She attributed an escalation in Husband's behavior in the past year to certain events including the death of her father-in-law, Husband being robbed at gunpoint, and Husband's 17-year-old son "sexually abusing" their "7-year-old[.]" She claimed that Husband's physical abuse "went from being very sporadic to being almost like twice a week." She stated that he was verbally and emotionally abusive. As a result, Wife was fearful for herself and their children.
At the hotel, when Wife was putting the children to bed at about 9:00 p.m., Husband sent Wife an email that read:
Is this Emily Fuller?
Have you kidnapped my family?
I am here at [address omitted] and my Family is not here. The house is a mess and I am calling the cops reporting your kidnapping immediately!
They will trace you down
I will tell them you are armed So they shoot you on site
YOU WILL NOT GET AWAY!!!
Have fun my love see you soon[.]
The email was admitted into evidence. Wife testified that when she received the email, she called the police, informed them of it, and advised that Husband was at her house. According to Wife, the police responded to her home and confirmed that Husband was there. She said the police officer advised her to seek a protective order. Later that night, she received a call from another police officer telling her that Husband was at the police station and that "they just needed to verify that the children were okay." She said that this officer also advised her to seek a protective order.
When Wife completed her testimony, the court asked Husband whether he had any questions for her. Husband replied: "I object to the entire statement that was made other than the email." When asked again whether he had any questions for Wife, Husband replied: "I don't want to go into it." The court then asked a third time: "So you don't want to ask her any questions?" Husband responded: "Not today." The court confirmed: "You do not." Husband answered: "No."
When the court then asked Husband whether he wished to testify on his behalf, he replied that he had "a statement to make[.]" After being duly sworn, he testified that Wife, despite the temporary protective order, had contacted him multiple times via email. Husband offered for admission a copy of emails and texts between the parties spanning over 200 pages. In his view, these communications supported his position that he had never threatened her and that "every [word] spoken from me is out of love and out of care and out of concern. Nothing was directed toward [Wife], especially on August 27th." He also testified that the communications "validate[] that this protective order is invalid, not needed and the things that [Wife] proclaimed is not actual reality. It's not facts." The emails and texts were admitted without objection.
On cross-examination, Husband did not answer any questions by Wife's counsel and instead invoked his right against self-incrimination under the Fifth Amendment. The hearing concluded with no other witnesses.
The court then recessed to review the communications admitted into evidence. Upon returning to the bench, the court announced that it found that Husband had placed Wife in fear of imminent serious bodily harm, therefore entitling her to a final protective order.
The final protective order, effective through October 5, 2024, in pertinent part, provides that Husband shall not abuse or threaten to abuse Wife or contact or attempt to contact her. The order also awarded Wife custody of the parties' children for the duration of the order and granted Husband supervised visitation with the children.
We shall provide additional facts as necessary in our discussion.
STANDARD OF REVIEW
A petitioner seeking a final protective order must show "by a preponderance of the evidence that the alleged abuse has occurred[.]" FL § 4-506(c)(1)(ii); C.M. v. J.M., 258 Md.App. 40, 56 (2023). "Preponderance of the evidence means more likely than not." C.M., 258 Md.App. at 56-57 (cleaned up). When reviewing the issuance of a final protective order, we accept the trial court's findings of fact unless they are clearly erroneous. See Md. Rule 8-131(c); Barton v. Hirshberg, 137 Md.App. 1, 21 (2001). We "must consider evidence produced at the trial in a light most favorable to the prevailing party and if substantial evidence was presented to support the trial court's determination, it is not clearly erroneous and cannot be disturbed." Ryan v. Thurston, 276 Md. 390, 392 (1975). We defer to the trial court's credibility determinations because it has "the opportunity to gauge and observe the witnesses' behavior and testimony during the trial." Barton, 137 Md.App. at 21 (citation omitted). "As to the ultimate conclusion, however, we must make our own independent appraisal by reviewing the law and applying it to the facts of the case." Piper v. Layman, 125 Md.App. 745, 754 (1999).
DISCUSSION
In an informal brief, Husband states that he "is appealing all judgements, decisions and orders on the dates held 9-5-2023, 10-5-2023[.]" He claims that (1) he was "denied due process"; (2) he was "denied the opportunity to submit a response before, during and after the hearing"; and (3) there was "overreach by the judge who challenged [his] Motion to Dismiss." He requests that this Court "vacate the judgments" and direct that the parties' children be returned to the parties' "marital home to reunite with [him]." Although he mentions the September 5th hearing, his arguments center on the final protective order hearing on October 5th.
As a threshold matter, we explain the issues not properly before us in this appeal. First, to the extent that Husband challenges the extension of the temporary protective order on September 5, 2023, such a challenge is moot. This is because the temporary protective order expired on October 5, 2023, and was supplanted by the final protective order. See Suter v. Stuckey, 402 Md. 211, 219 (2007) ("A case is moot when there is no longer an existing controversy when the case comes before the Court or when there is no longer an effective remedy the Court could grant.").
Even if not moot, we decline to address any challenge to the court's entry of the extended temporary protective order on September 5, 2023. Husband did not present us with the transcript of that proceeding. See Kovacs v. Kovacs, 98 Md.App. 289, 303 (1993) (citations omitted) ("The failure to provide the court with a transcript warrants summary rejection of the claim of error."). Nor did Husband adequately brief any such challenge. The Guidelines for Informal Briefs that were appended to the briefing notice issued in this appeal provide, in relevant part, that the informal brief:
must identify issues that explain why the trial court erred or made a mistake in deciding the case and why the decision should be reversed or modified. The issues presented in the informal brief should be stated concisely with a description of the facts surrounding the issue and an argument supporting the resolution of the issue.Guidelines for Informal Briefs (b)(2) (emphasis added). Husband's informal brief does not articulate any arguments explaining why the court erred in extending the temporary protective order on September 5, 2023.
Second, the portion of the final protective order pertaining to custody of the children for the duration of the order is not properly before us because a subsequent order by the circuit court dated March 28, 2024, in the parties' divorce case, awarded Wife sole legal and physical custody of the children. See n.4, supra; FL § 4-506(j)(3) ("A subsequent circuit court order pertaining to any of the provisions included in the final protective order shall supersede those provisions in the final protective order.").
I.
DUE PROCESS
Husband argues that the final protective order should be vacated because he was denied due process. As best we can discern, Husband bases his contention that he was denied due process on the following: he "was not aware of the protective order in the month of September. [He] was not served nor present for the first hearing on October 5, 2023 that was held before the 9 am scheduled hearing to [his] best belief. [He] was made aware of the protection order in October, also served minutes before the second hearing on October 5[,] 2023."
At "[t]he core of due process is the right to notice and a meaningful opportunity to be heard." Roberts v. Total Health Care, Inc., 349 Md. 499, 509 (1998). Due process "is a flexible concept that calls for such procedural protection as a particular situation may demand." Wagner v. Wagner, 109 Md.App. 1, 24 (1996). It "does not mean that a litigant need be satisfied with the result." Id. at 23. Nor does it "require procedures so comprehensive as to preclude any possibility of error." Id. at 24. "Stated another way, due process merely assures reasonable procedural protections, appropriate to the fair determination of the particular issues presented in a given case." Id.
The statute for final protective orders provides in relevant part:
If the respondent appears before the court at a protective order hearing or has been served with an interim or temporary protective order, or the court otherwise has personal jurisdiction over the respondent, the judge:
(i) may proceed with the final protective order hearing; and
(ii) if the judge finds by a preponderance of the evidence that the alleged abuse has occurred, or if the respondent consents to the entry of a protective order, the judge may grant a final protective order to protect any person eligible for relief from abuse.FL § 4-506(c)(1) (emphasis added). "A respondent under § 4-505 of this subtitle [temporary protective orders] shall have an opportunity to be heard on the question of whether the judge should issue a final protective order." FL § 4-506(a).
The record does not support Husband's claim that he was denied due process. The court followed the statutory procedure when it proceeded with the final protective order hearing. Husband appeared before the court on October 5th, and the court gave him the opportunity to be heard on whether a final protective order should be issued.
It is unclear what Husband means when he says that he was not served or present "for the first hearing on October 5, 2023 that was held before the 9 am scheduled hearing[.]" There was no hearing scheduled at 9:00 a.m. To the extent that "the first hearing on October 5" is a typographical error and Husband meant "September 5," the original date of the final protective order hearing, there was no denial of due process.
At the September 5th hearing, it was noted that Husband was not present and had not been served. As a result, the court extended the temporary protective order and rescheduled the final protective order hearing for October 5th. This was apparently done to allow for service to be carried out. See FL § 4-505(c)(2) ("The judge may extend the temporary protective order as needed, but not to exceed 6 months, to effectuate service of the order where necessary to provide protection or for other good cause."). By extending the temporary protective order, it appears the court was ensuring that Husband had notice and an opportunity to be heard on whether the final protective order should be granted. In other words, the extension of the temporary protective order aimed, in part, to safeguard due process rather than deny it.
Finally, we are not persuaded that Husband was unaware of a protective order in September. Communications admitted into evidence at the final protective order hearing on October 5th indicate that Husband was aware of the "domestic violence" case against him. Although she did not appear to explicitly tell Husband that she had petitioned for a protective order and that the hearings related to temporary and final protective orders, Wife informed Husband on September 4th that there "is a hearing scheduled for 2 pm tomorrow [September 5]" and that Husband "should call the sheriff they have tried to serve you." On September 6th, after the court extended the temporary protective order, Husband moved to dismiss the case for lack of jurisdiction. On September 7th, Wife advised Husband: "There is a court order in place. We can have it amended prior to October 5 but you need to accept service."
On September 8th, Husband emailed Wife stating that he learned of the domestic violence case against him:
I see a domestic violence case was formed against me. I've been asking you, what did you file and you will not tell me. I've asked you what is the filings about and you disregard my emails and texts. I've never been served. You telling me we have a hearing is not a form of being properly served.(Emphasis added). Husband followed up with another email asking Wife: "When did domestic violence [occur]? Where did Domestic Violence [occur]? Who performed Domestic Violence?
On September 24th, Wife emailed Husband: "You are refusing service and not showing up for court." Husband responded, "I refused no service. No one ever visited me. Sweetheart[,] I consistently remind you we are not in that jurisdiction [Frederick County]. [Y]our a lawyer you should know that." Although Husband may not have specifically known about the temporary protective order in September, he knew that there was a "domestic violence" case against him, that there was a court order in place, and that he had to be served. He also knew enough about the action to move to dismiss the case.
In any event, Husband learned about the temporary protective order on October 5th at the final protective hearing. He elected to proceed with a contested hearing even though he was offered the chance to obtain legal counsel. During the hearing, Husband was given the opportunity to be heard on whether a final protective order should be issued before the court granted it. For the reason stated, there was no denial of due process.
II. OPPORTUNITY TO PRESENT DEFENSE
Husband asserts that he was "denied the opportunity to submit a response before, during and after the hearing[.]" He states that he "provided proof and objected to all claims submitted by [Wife], including false claims that also were unsubstantiated and dismissed by government agents." But Wife, he maintains, "was allowed to defame [him] with the submission of the false claims."
We are not persuaded that Husband was denied the opportunity to present a defense. Before taking testimony at the final protective order hearing on October 5th, the court advised Husband that Wife would present evidence and he would have the chance to question witnesses. When Husband expressed that he did not understand, the court asked whether he wanted an attorney to represent him, to which he responded: "I do not."
During Wife's testimony, when she purportedly made improper statements, Husband did not timely object to or move to strike her testimony; it was only after Wife completed her testimony that he objected to Wife's entire statement. See Md. Rule 2-517(a) ("An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived."). Nor did Husband test the veracity of her statements through crossexamination. When the court asked Husband whether he wished to ask Wife any questions, he affirmatively declined.
Husband was then given the opportunity to testify on his behalf and present a defense. The court admitted the only exhibit he offered, a packet of several communications that he maintained supported his position that he had never threatened Wife, that his words were "out of love and out of care and out of concern[,]" and that "this protective order is invalid, not needed and the things that [Wife] proclaimed is not actual reality."
After the exhibit was admitted, the court inquired whether Husband had anything further to present, and he replied: "I do not." Cross-examination of Husband was brief, as he invoked his privilege against self-incrimination under the Fifth Amendment. The court then recessed to review the exhibit submitted into evidence by Husband. In sum, the court gave Husband the opportunity to be heard before announcing its ruling.
The circuit court, in a bench trial, is "entrusted with making credibility determinations, resolving conflicting evidence, and drawing inferences from the evidence" and has the "ability to choose among differing inferences that might possibly be made from a factual situation[.]" Koushall v. State, 479 Md. 124, 149 (2022). The court apparently found Wife's testimony credible in granting the final protective order. See Smith v. State, 415 Md. 174, 185 (2010) ("Because the fact-finder possesses the unique opportunity to view the evidence and to observe first-hand the demeanor and to assess the credibility of witnesses during their live testimony, we do not re-weigh the credibility of witnesses or attempt to resolve any conflicts in the evidence."). Given the above, we find no merit in any contention that Husband was denied an opportunity to present a defense.
III. MOTION TO DISMISS
Husband asserts that his rights were violated due to "overreach by the judge who challenged [his] Motion to Dismiss." As we understand, Husband argues that the circuit court erred in effectively denying his Motion to Dismiss. Although he claimed below that the motion was based on a "lack of subject matter jurisdiction," the actual basis was for improper venue. Husband states that he and Wife "were domiciled in Baltimore" and, therefore, "any action for a protective order is appropriate in Baltimore." He claims that Wife changed her address after she had filed for a protective order. In other words, on appeal, he argues that Baltimore City, not Frederick County, was the appropriate venue for this matter. We disagree.
"Jurisdiction" "refers to the fundamental power of a court to decide a dispute, by virtue of the nature of the dispute (subject matter jurisdiction) and the connection between the defendant and the state (personal jurisdiction)." Sigurdsson v. Nodeen, 180 Md.App. 326, 342-43 (2008). In contrast, "venue" "does not concern the power of a court to decide an issue. It concerns the place, among courts having jurisdiction, that an action will be litigated." Id. at 343.
"We review de novo the decision of the circuit court on a motion to dismiss for improper venue." Halstad v. Halstad, 244 Md.App. 342, 348 (2020). A petitioner may file a petition for protective order with a commissioner if "neither the office of the clerk of the circuit court nor the Office of the District Court Clerk is open for business[,]" and the commissioner may issue an interim protective order. See FL § 4-504(a)(1), § 4-504.1(a), (b).
A commissioner is a judicial officer of the District Court of Maryland. See Md. Code, Courts &Judicial Proceedings ("CJP") § 2-607(a)(1) (1973, 2020 Repl. Vol.) ("The administrative judge of each district, with the approval of the Chief Judge of the District Court, may appoint the number of commissioners necessary to perform the functions of the office within each county."); Md. Rule 21-102(b) ("judicial officer" means "District Court commissioner"). "The District Court is a single unified court, divided into districts, with uniform statewide jurisdiction." Brown v. State, 153 Md.App. 544, 576 (2003).
Frederick County is part of District 11. See CJP § 1-602(11). The District Court of Maryland, sitting in Frederick County, is commonly known as the "District Court of Maryland for Frederick County."
Wife filed the petition for protective order with a District Court commissioner on August 28, 2023, and the commissioner issued an interim protective order that morning. Several days earlier, Wife had filed a complaint in the Circuit Court for Frederick County in case number C-10-FM-23-001402, seeking sole legal and physical custody of the children. See n.4, supra; see also CJP § 6-202 (An action related to custody, maintenance, or child support may be brought in the count where "the father, alleged father, or mother of the child resides, or where the child resides[.]"). After issuing the interim protective order, the commissioner reviewed the District Court and circuit court records for pending actions involving the parties. The commissioner reported in the case file that the custody action was pending in the circuit court.
After the District Court granted a temporary protective order on August 29th, it transferred the case to the Circuit Court for Frederick County under Maryland Rule 3-326(c)(1). That Rule, in pertinent part, provides:
[A]fter entering a temporary protective order, the District Court, on motion or on its own initiative, may transfer the action to a circuit court for the final protective order hearing if, after inquiry, the District Court finds that (i) there is a pending action in the circuit court involving one or more of the parties in which there is an existing order or request for relief similar to that being sought in the District Court and (ii) in the interests of justice, the action should be heard in the circuit court.
In its transfer order, the District Court found that "there was a pending action in the circuit court involving one or more of the parties in which there is an existing order or request for relief similar to that being sought in these proceedings, and that it is in the interests of justice to transfer this action to the circuit court" under Rule 3-326(c)(1). Because there was a pending custody action in the Circuit Court for Frederick County seeking similar relief as the District Court case (i.e., custody), it was proper to transfer the District Court case to the Circuit Court for Frederick County for the final protective order hearing. Accordingly, the Circuit Court for Frederick County did not err when it effectively denied Husband's Motion to Dismiss, and we perceive no "overreach" by the judge on this issue.
Even if, as Husband's claimed below, Wife's residency in Frederick County had to be proven to proceed with the final protective order hearing in the Circuit Court for Frederick County, the evidence established her residency there. Wife testified that she had left the marital home in June, moved to Frederick County, and enrolled the children in school there. Additionally, in an email dated June 4, Husband acknowledged Wife's move to Frederick: "[Y]ou moved to Frederick and have enrolled our children in their public school." Thus, the evidence demonstrated that Wife was residing in Frederick County when she filed the petition for protective order on August 28th.
JUDGMENT OF THE CIRCUIT COURT FOR FREDERICK COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
[*] This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B).