Arlene S.

IN THE COURT OF SPECIAL APPEALS OF MARYLAND Appeal No. 02406 September Term, 2012 CATRINA SNOWDEN Appellant v. DARREN SNOWDEN Appellee Appeal from the Circuit Court for Baltimore County (The Honorable Justin King) Brief of the Appellant Submitted by: Arlene A. Smith-Scott, Esquire Strategic Law Group, LLC 367 Main Street Laurel, Maryland 20707 PH:- FAX:--Attorney for Appellant TABLE OF CONTENTS TABLE OF CONTENTS 2-3 TABLE OF CITATIONS 4-6 STATEMENT OF THE CASE 7-10 STATEMENT OF THE QUESTIONS PRESENTED 11-12 STATEMENT OF FACTS 13-21 STANDARD OF REVIEW 21 ARGUMENT 21-24 I. Summary of the Appellant’s Argument II. The Trial Court Erred by Failing To Award Physical and Legal Custody to the Appellant and/or Shared Legal and Physical Custody III. III. IV. VI. V. The Trial Court Abused Its Discretion by Failing to Award Child Support to the Appellant for Sixteen Months with Appellee The Trial Court Abused Its Discretion by Awarding Child Support To Appellee When Appellant Shares a “Quasi” Joint Custody VII. The Trial Court Erred by Distributing Non-Marital Assets to Appellee VIII. The Trial Court Erred by Allowing the Appellee to Dissipate Marital Assets and Penalize the Appellant VII. CONCLUSION 33-34 VIII. AFFIDAVIT OF SERVICE APP1 IX. VERBATIM TEXT OF ALL RELEVANT CASES, STATUTES, RULES, AND RELAVENT DOCUMENTS TO THE FACTS OF THIS CASE APP1 TABLE OF CITATIONS TABLE OF AUTHORITIES A. CASES Benjamin v. Benjamin, 370 S.W.2d 639 (Mo. 1963). See Ex parte H.H., 2002 26 Ala. LEXIS 44 (Ala. 2002) Biedelfecld v. Bennett-White, 91 Md. App. 488, 605 A.2d 172 (1992) 29 Best v. Best, 93 Md. App. 644. 613 A.2d 1043 (1992) 28 Elbert v. Elbert, 579 N.E.2d 106 (Ind. Ct. App. 1991): In re Jannot, 110 Wn. 26 App. 16, 37 P.3d 1:65 (Wash. Ct. App. 2002) Davis v. Davis, 280 Md. 119, 372 A.2d 2331 (Md.), cert. denied, 434 U.S. 939 (1977) 24 Domingues v. Johnson, 323 Md. 486, 593 A.2d 1133 (1991) 25 Fletcher v. Fletcher, 447 Mich. 871, 526 N.W.2d 889 (1994) 27 Golmceier v. Lepselter, 89 Md. App. 301, 598 A.2d 482 31 In re Mark M., 365 Md. 687, 705, 782 A.2d 332 (2001), cert. denied, 2002 Md. LEXIS 1002 (Md. Dec 23, 2002:) 27 Kovacs v. Kovacs, 98 Md. App. 289, 633 A.2d 425 (1993), cert. denied 334 25,33 Md. 211, 638 A.2d 753 (1994) Kramer v. Krcamer, 26 Md. App. 620, 339 A.2d 328, 338 (1975) 27 Marriage of Hadeen, 27 Wash. App. 566, 519 P. 2d 374 (1980) 29 McCready v. McCreadc, 323 Md 476, 483., 593 A2d 1128 (1991) (citations 10 omitted) Montgomery County Department of Social Services v. Sanders, 38 Md. App. 20,28,32 406, 420, 381 A.2d 1154 (1978) Nadiak v. Nadiik, 172 So. 2d 253 (Fla.Dist.Ct.App.), cert. Denied, 179 So. 2d 26 218 (Fla. 1965) Ross v. Pick, 199 Md. 341, 353, 86 A. 2d 463 (1952) 32 Shaw v. Shaw, 159 Ind. App. 33, 304 N.E.2d 536 (1973) 26 Shuirupoff v. Vockroth, 372 Md 639, 814 A2d 543 (1/7/03) 31 *iii Stern v. Horner, 22 Md. App. 421, 324 A.2d 134 (1974) 25 Shunk v Walker, 87 MdApp 389, 589 A2d 1303 (5/14/91) 10 Taylor v. Taylor, 306 Md. 290, 508 A. 2d 964 (1986) 28 B. STATUTES MD. CODE ANN., FAM. LAW § 5-203 (a) 32 Maryland Family Law § 6-3 (d) No Maternal Preference 32 §6-5 Maryland Family Law (b) The Presumption and Its Exceptions 32 § 15 A. 07 Understanding Child Development 11,12,13 § 24 A. 02 [1] Child Custody Evaluation 13,16 § 24 A. 02 [2] Child Custody Evaluation 13 § 24 A. 01 The Legal Parameters 14 § 24 A. 03 [3] Child Custody Evaluation 16,17 § 24A.04 Evaluation Techniques 17 § 24A.05[2] Child Custody & Visitation part [b] Essential Questions in Reviewing a Report 18 § 26.01 Introduction Child Custody & Visitation 25 § 26.02 Procedural Requirements 26 § 26.06 Procedural Requirements 27 Family Law Manual, Children Custody Section 30 Maryland Family Law § 6-2. “Best Interests” Standard 31 Maryland Family Law § 6-3 (c) Preference of the Child 32 § 6-3. Factors Considered in Custody Disputes 31 § 6-11 (c) Custody is Never Permanent 32 § 6-11 (h) A Material Change in Circumstances 32 IV C. RULES SECTION 402. [Best Interest of the Child.] 15 Section XI. APPEALS of Maryland Divorce and Separation Law, section A. 24 Interlocutory Orders are Appealable Maryland Divorce and Separation Law 28,29 Title 8 of the Child Custody Act 30 Fourteenth Amendment's Due Process Clause 30,31 E. LITERATURE CITED Breger, L. From Instinct to Identity: The Development of Personality at 39 (Prentice-Hall, Englewood Cliffs, N.J. 1974) Schutz, Dixon, Lindenberger and Ruther, Solomon's Sword: A Practical Guide to Conducting Child Custody Evaluations (Jossey-Bass 1989) STATEMENT OF THE CASE The parties to this appeal are Catrina Snowden (Appellant) and Darren Snowden (Appellee). The Snowdens were married on November 26, 1997, and are the parents of Darrius Snowden, born September 23, 1999, and Cayla Snowden, born November 7, 2000. During the spring of 2011, the Snowdens began experiencing marital difficulties. That on the 11th day of April, 2011, the Appellee initiated a physical attack on the Appellant that resulted in both physical and mental injuries. For personal safety reasons, the Appellant decided to leave the residence that she shared with the Appellee and the children. She moved in with her grandmother, who lived within a quick drive to her residence. The Appellant and the Appellee continued to live separate and apart since April 11, 2011. On August 4, 2011, Appellant filed a Complaint for Limited Divorce with Affidavits and the Appellant filed a Petition for Emergency Pendente Lite Custody with Affidavit seeking temporary and permanent custody of the children. In the Appellant’s Complaint for Limited Divorce she claimed constructive desertion and cruel and excessively vicious conduct. In August 2011, the Appellant was able to retrieve her children from the Appellee. They moved in with her mother in Laurel, Maryland. She enrolled the children in school in Laurel. The Appellant and the Appellee navigated the issue of visitation and custody. On May 28, 2012, the Appellee received an ex parte protective order for both of the children as well as custody. On May 31, 2012, the Appellant was granted physical and legal custody of the children with liberal visitation for the Appellee. The Appellee had not paid child support since the children were in her custody from August 2011. The Appellant and the Appellee had a trial in front of the Honorable Justin King in the Circuit Court of Baltimore. He issued an Opinion and Order on October 31, 2012, which included the Award of Absolute Divorce on the ground that the parties were separated for one year or longer pursuant to Family Law Section 7-103(a)(4). The Court failed to order an award for alimony stating that there is simply no evidence before the Court to support an award of either permanent or rehabilitative alimony. The Court ordered a distribution of what he considered to be marital property. The Court stated that there was only a difference of $100.00 in the value of the property in each party's possession; the Court will not make a monetary award to adjust the equities of the parties with regard to personal property. However, he ordered the Appellant to transfer to the Appellee by way of a Qualified Domestic Relations Order the sum of $27,512.11 from her Individual Retirement Account ("IRA") to adjust for the disparity in their respective IRAs. And, that there was no dispute that Appellee has been the driver of the jointly titled 2003 Mazda. Appellant was ordered to sign whatever documentation is necessary to transfer title of the vehicle to the Appellee. As it pertained to custody, the Court made the following order. When considering the best interests of the children, the Court believed the Appellee should be awarded primary physical custody of the children during the school year. Appellant shall have overnight visitation every weekend beginning Friday after school until Sunday evening at 7 p.m., unless Monday is a school holiday, in which case visitation shall be extended until 7 p.m. on Monday. In addition, Appellant shall have mid-week visitation with the children two nights per week from the time after the children's school day ends and when Appellant can get to the school or the children's home until 8:30 p.m. Such time may be spent at Appellee's home, in which case Appellee shall leave the premises. Appellant shall have the children with her for four weeks during the summer. Appellant and Appellee will share holidays spent with the minor children; the parties will alternate each holiday every year. During even years, Appellant will have the children on the following holidays: New Year's Day; Memorial Day; Labor Day; and Christmas Eve from 6:00 p.m. until Christmas Day at noon. Also on even years, Appellee will have the children on the following holidays: Easter; 4th of July; Thanksgiving Day; and Christmas Day from noon until December 26 at 10:00 a.m. Appellant will have the children every Mother's Day, and Appellee will have the children every Father's Day. The vacation and holiday visitation schedule will prevail over the normal visitation schedule And, the Court ordered child support to be paid by Appellant directly to Appellee is $733.00 in accordance with the attached Maryland Child Support Guidelines. And, Appellee shall pay to Appellant $1,232.00 per month for the months of November and December in accordance with the attached Maryland Child Support Guidelines. The Appellant appealed the order from the Honorable Justin King raising the following questions, which we have condensed and rephrased: I. Did the circuit court abuse its discretion by granting physical custody of the children to the Appellee when the Appellant has had physical custody of the children since August 2011? II. Did the circuit court err by failing to order joint physical custody when it awarded visitation that surpasses 128 days? III. Did the circuit court abuse its discretion by awarding child support to the Appellee when the Appellant is awarded “Quasi” joint physical custody of the minor children? IV. Did the circuit court err by failing to award child support to the Appellant from August 2011, which is the time she had sole custody of the children and the time of the initial pleadings, i.e., Complaint for Absolute Divorce and Petition for Emergency Pendent Lite Child Custody? V. Did the circuit court abuse its discretion by distributing nonmarital assets to the Appellee? VI. Did the circuit court err by allowing the Appellee to dissipate marital funds when he withdrew more than $14,000 after the divorce was filed by the Appellant VII. Did the circuit court err by penalizing the Appellant by awarding 68% of her 401k Retirement Account to the Appellee who used 73% of his 401k Retirement Account as “Dissipation”? For the reasons to follow, we are seeking a reversal of the order of physical custody of the children by the Appellee to Physical Custody by the Appellant or Shared Joint Custody with each the Appellant and the Appellee; vacate a portion of the child support judgment that requires Appellant to pay child support and extend the child support that is due by the Appellee from the time of the filing of the pleading; vacate a portion of the distribution of what is purported to be marital assets as it concerns the Appellant’s 401k child support judgment, and otherwise affirm the judgments of the circuit court. STATEMENT OF THE QUESTIONS PRESENTED I. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO AWARD PHYSICAL AND LEGAL CUSTODY TO THE APPELLANT AND/OR GRANT SHARED LEGAL AND PHYSICAL CUSTODY TO THE APPELLANT AND THE APPELLEE. a. DID THE TRIAL JUDGE ERR IN RENDERING A FINAL DECISION THAT WAS NOT IN LINE WITH THE BEST INTERSTS STANDARD. b. DID THE TRIAL JUDGE ERR IN NOT CONSIDERING THE PSYCHOLOGICAL DAMAGE THAT WAS IMPARTED UPON THE MINOR CHILD AFTER BEING REMOVED FROM THE PRIMARY CARETAKER AND OTHER IMMEDIATE FAMILY MEMBERS? II. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO AWARD CHILD SUPPORT TO THE APPELLANT FROM THE TIME SHE WAS AWARDED PHYSICAL AND LEGAL CUSTODY TO THE TIME THAT SHE WAS ORDERED TO RELINQUISH THE CHILDREN TO THE APPELLEE. a. THE TRIAL JUDGE ERRED WHEN IT AWARDED CHILD SUPPORT TO THE APPELLEE AT THE SAME TIME IT ORDERED “QUASI” JOINT PHYSICAL CUSTODY OF THE CHILDREN. III. THE TRIAL COURT ERRED IN ITS MONETARY AWARD TO APPELLEE FROM THE APPELLANT OF THE 401K RETIREMENT ACCOUNT DISTRIBUTION OF 68% WHEN THE APPELLEE LIQUIDATED 73% OF HIS 401K RETIREMENT ACCOUNT AND USED IT FOR HIS OWN PURPOSES. . a. THE TRIAL COURT ERRED IN DETERMINING WHICH PROPERTY IS MARITAL PROPERTY AND THE VALUE OF THE MARITAL PROPERTY. b. BY ARBITRARILY APPLYING THE FACTORS OF FAMILY LAW ARTICLE, SECTION 8-205(B) (2), THE TRIAL COURT ERRED IN THE AMOUNT OF THE MONETARY AWARD. STATEMENT OF FACTS On August 4, 2011, the Appellant filed an Emergency Pendente Lite Complaint for Custody with Affidavit in the Circuit Court for Prince George’s County. Also on August 4, 2011, the Appellant filed a Complaint for Limited Divorce. The Appellant requested physical and legal custody of the two minor children; that the Appellee continue to carry health insurance through his employment for the Appellant and their two minor children; allocate between the parties any additional costs of providing hospital, medical or surgical benefits; child support for the children and alimony for herself and an equal distribution of the real property and the personal property that the Appellant and the Appellee collected during their marriage. The real property included use and possession, both pendente lite and for the maximum time permitted under the Family Law Article of the Annotated Code of Maryland, for the tangible personal property located at 8635 Oakleigh Road, Parkville MD 21234; a court order which specifies which property is marital property; a monetary award adjusting the equities and rights of the parties in said marital property; and, that the Appellee be ordered to reimburse the Appellant for all payments made toward the maintenance of the family home and motor vehicle, including but not limited to principal, interest, taxes, insurance, maintenance and repairs The Complaint for Limited Divorce also contained several counts including constructive desertion and cruel and excessively vicious conduct on the part of the Appellee. The first act was documented in criminal case 6C-, on November 7, 2008, which led to a granting of a temporary protective order for the Appellant. The Appellant states that the second act of violence the Appellee initiated a physical attack on the Appellant that resulted in both physical and mental injuries, which was documented by criminal case number A-. These acts of violence led to the Appellee’s constructive desertion of the Appellant. The Appellant argued that the Appellant’s act of violence and his continuous harassment was a final and deliberate means of pushing the Appellant out of their marriage. On September 6, 2011, the Appellee filed an Answer requesting sole physical custody and sole legal custody or shared physical and legal custody. The Appellee also requested child support. The Appellee argued that he was entitled to a larger percentage of the real property and the personal property. The Appellee also filed a Counter Claim. On September 13, 2011, the Appellee filed a response to the Appellant’s Pendente Lite Complaint for Custody and Affidavit. The Appellee has stated that the Appellant has physically attacked him. On April 11, 2011 at 12:30pm, the Baltimore County Police was dispatched to 8635 Oakleigh Road in reference to a domestic issue involving both the Appellant and the Appellee. The Appellant was arrested after the police observe scratches on the Appellee. On May 2, 2012, Appellant filed an Amended Complaint seeking an absolute divorce; child support and presumably, although not specifically requested, custody of the children; an earnings withholding order; alimony; a monetary award; a determination of the ownership of all personal and real property; and attorney’s fees. On May 31, 2012, Appellee filed an answer to the Amended Complaint requesting that the divorce be granted; that the parties be awarded joint legal custody; that he be awarded sole physical custody of the minor children and child support in accordance with the child support guidelines; and attorney's fees. On May 28, 2012, the Appellee went before the Commissioner of the District Court of Maryland in Baltimore and alleged child abuse after his children were disciplined by the Appellant. The complaint stated that, “Darius says whenever he gets in trouble, his Mom, the Appellant, gets in his face and takes him by his shirt, jerks him up and threatens him with a beaten.” Also, the complaint stated that Cayla said, “her mom, the Appellant, made her lay across the bed then beat her with a belt on her backside.” The Appellee received a Temporary Ex Parte Protective Order for each of the children and a hearing for the Permanent Protective Order was scheduled approximately a week later. Included in that order was a granting of custody to the Appellee which remained in effect for three days. The Court declined to issue a Permanent Protective Order based on the allegations asserted by the Appellee. On May 31, 2012, the Appellant filed a Petition for Immediate Custody and Request for Emergency Hearing. The Honorable Robert E. Cahill, Jr., presided over an emergency custody hearing and granted temporary sole legal and physical custody to the Appellant and specified visitation to the Appellee. The parties appeared before Honorable Justin King on October 10 through October 12, 2012, for a scheduled merits hearing on Appellant’s Amended Complaint for Absolute Divorce, Child Support and Other Relief. The Appellant, her grand-mother Shirley Smith, and her friend Patrice Dean testified on behalf of the Appellant. Appellant’s counsel also called the Appellee to testify. The Appellee testified on his own behalf and also called his mother, Margaret McIntosh, his stepmother, Shirley Snowden, his friend, Terek Stokes, and his stepsister, Gail Dyson to the stand. After the conclusion of Appellee's case, Appellant testified in rebuttal as did the Appellee in response to the Appellant's rebuttal testimony. On October 17, 2012, the Honorable Justin King conducted an in camera interview with the parties' minor children, Darrius Snowden, born September 23, 1999, and Cayla Snowden, born November 7, 2000. Prior to the interview, counsel was invited to submit suggested written questions for the Court to ask the children. The conversation was on the record but without the parties or their attorneys present. After reporting on the substance of the in camera interview, the Court instructed counsel for both parties to submit written closing memoranda addressing all issues related to the divorce, including alimony, property distribution, custody, visitation, child support, and attorney's fees. On October 31, 2012, the Honorable Justin King issued his opinion and order in the Snowden vs. Snowden case. He ruled on several issues, however, the three issues that the Appellant is asking the Court of Special Appeals to reverse or to modify would include (a) the issue of custody and visitation, (b) the issue of child support and (c) which property the court determined was marital versus non-marital property that could be distributed in the order. Concerning the issue of custody and visitation, the Honorable Justin King ordered as follows: Custody and Visitation The Court stated that the Appellant sought sole legal and physical custody of the minor children, although not specifically requested in her Amended Complaint. Appellee sought sole physical custody and joint legal custody. Most of the testimony in this case involved custody and visitation issues. The Court considered each witnesses assertions carefully. In addition, the Court conducted an interview with the minor children in chambers without the parties or their attorneys present. However, the interview was on the record. The court relied upon Montgomery County vs. Sanders, 38 Md. App. 406 (1977), in order to determine what is in the children's best interest, a number of factors should be considered. Id. at 420. Accordingly, the Court awarded joint legal custody to the parties. Accordingly, the parents will keep each other fully informed of all medical, educational, recreational, and extra-curricular events. In the event of a stalemate, the primary custodial parent will be allowed to make a decision after having contacted and fully informing the other. In the event of an emergency, the parent who has physical custody at the time of the emergency will make any decision necessary to address the emergency. The Court also ordered the parties to attend parenting classes and family mediation through the Baltimore County Circuit Court Office of Family Support Services so that the parties will learn to communicate, compromise, and cooperate with each other. Either party's failure to participate in the parenting classes or family mediation will be looked upon harshly by this Court. The Court has also carefully considered the factors in determining which parent should be given primary physical custody. When considering the best interests of the children, the Court believes that Appellee should be awarded primary physical custody of the children during the school year. However, the Court has considered Appellee's request that the children be allowed to finish the school term in their present school. Therefore, physical custody shall remain with Appellant until the school's winter break that begins on December 21, 2012. Appellant will have full and liberal access to the children to foster as close a relationship as possible under these circumstances. The children want and need to have ample visitation with their mother. However, both parties must make their children's needs their priority; the parties' social or recreational activities must be set aside to accommodate the children's schedules. The Court awarded Appellant overnight visitation every weekend beginning Friday after school until Sunday evening at 7 p.m., unless Monday is a school holiday, in which case visitation shall be extended until 7 p.m. on Monday. In addition, Appellant shall have mid-week visitation with the children two nights per week from the time after the children's school day ends and when Appellant can get to the school or the children's home until 8:30 p.m. Such time may be spent at Appellee's home, in which case Appellee shall leave the premises. Appellant shall have the children with her for four weeks during the summer and the parties will communicate no later than April 1 of each year to compare schedules, discuss summer plans and possible summer camps for the children, and arrive at a mutually agreeable schedule to accommodate Appellant's time with the children. Appellant and Appellee will share holidays spent with the minor children; the parties will alternate each holiday every year. During even years, Appellant will have the children on the following holidays: New Year's Day; Memorial Day; Labor Day; and Christmas Eve from 6:00 p.m. until Christmas Day at noon. Also on even years, Appellee will have the children on the following holidays: Easter; 4th of July; Thanksgiving Day; and Christmas Day from noon until December 26 at 10:00 a.m. Appellant will have the children every Mother's Day, and Appellee will have the children every Father's Day. The vacation and holiday visitation schedule will prevail over the normal visitation schedule AWARD OF CHILD SUPPORT Appellant earns $1,923.24 semi-monthly or $3,846.48 per month. Appellee earns $6,472.00 per month. Health insurance for the children is provided as part of Appellee's union dues. There was no testimony regarding the cost to insure the children. There are no extraordinary expenses associated with the children nor is there any daycare expense. Based on the above earnings and the number of overnights spent with each child, the amount of child support to be paid by Appellant directly to Appellee is $733.00 in accordance with the attached Maryland Child Support Guidelines. These support payment will begin on January 1, 2013. Because Appellant will have the children for the balance of the calendar year, Appellee shall pay to Appellant $1,232.00 per month for the months of November and December in accordance with the attached Maryland Child Support Guidelines. MARITAL PROPERTY DISTRIBUTION The Court stated that there is a three-step process to determine eligibility for a marital award. Initially, the Court must characterize the property owned by the parties, however titled, as either marital or non-marital. The second step requires the Court to value that property. Finally, the Court must determine whether to enter a monetary award, and if so, how and when it is to be paid. Alston v. Alston, 331 Md. 496, 499-500 (1993). The overarching interest is to fairly and equitably adjust the property interests of the spouses at the time the marriage is dissolved, with consideration given to the monetary and nonmonetary contributions made during the marriage. Bledsoe v. Bledsoe, 294 Md. 183, 185-86 (1982). Step 1— Characterization of Property The parties submitted an Amended Joint Marital and Non-Marital Property Statement. The parties agree on the classification of all items listed except the living room and dining room furniture. Although Appellant does not address either of these items in her Proposed Findings of Fact and Conclusions of Law, she testified that both are her nonmarital property because they were acquired prior to the parties' marriage. The Court heard testimony from the Appellee concerning the dining room set, which stated that he gave the Appellant one-half of the funds to purchase the dining room set, making it jointly owned and marital property. The Appellant failed to adequately rebut that testimony. The court found that the dining room set is marital property and is in the possession of the Appellant. The Appellee testified that the living room set was a gift to both parties, given to them before the marriage but during a time when they resided together. The Court found that the living room furniture was a gift given to the Appellant prior to the marriage. Therefore, the living room furniture is not marital property and belongs to the Appellant. The parties agree that two vehicles, one in the Appellee's name and one in the wife's name, are non-marital property. Presumably, the vehicles are in the parties' respective possession as the court has not been informed otherwise. Step 2 — Valuation Appellant testified that the values she assigned to each of the marital property items were the costs of replacing the property or what was originally paid for the items. The court did not accept these valuations. The original cost or the cost of replacement does not reflect the fair market value of the items. Appellant did not challenge the Appellee's values that, for most of the items are lower than Appellant's; the Court accepts Appellee's valuation as the actual value of each marital item. Accordingly, the total value of Marital Property, before retirement assets are considered is $7,800.00, of which $3,850 worth of items is in Appellant's possession. Appellant has a 401(k) plan with a current agreed balance of $40,000.00, and Appellee has a 401(k) plan which Appellant values at $18,382.22 and Appellee values at $5,024.22. Appellant argued that the explanation for the lower value of the account is that Appellee dissipated the assets presumably to avoid having to divide them with Appellant. The Appellee’s 401k statement also showed a withdrawal of $14,016.96 in the fourth quarter of 2011. Appellee testified that he cashed in a portion of his 401(k) in the fall of 2011, receiving approximately $12,000.00. The Appellee testified that he needed this money to pay various expenses including his attorney's fees and bills that had accumulated. Maryland law defines dissipation as when "one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time where the marriage is undergoing an irreconcilable breakdown." Omayaka v. Omayaka, 417 Md. 643, 651 (2011) (quoting Sharp v. Sharp, 58 Md. App. 386, 401 (1984)). The Court stated that there was no credible evidence presented to support the Appellant's assertion that the Appellee dissipated his interest in his 401(k). The uncontroverted testimony was that he had been out of work for several months due to an on the job injury and had been in arrears on many of his bills. In fact, the testimony from both parties confirmed the fact that their poor financial situation contributed to their ultimate separation. The Court finds that value of the marital pension funds total $45,024.22 of which $40,000.00 is in the Appellant's name and $5,024.22 is in the Appellee's name. Step 3 - Monetary Award In making a monetary award, the Court must consider the following several factors. Keeping in mind that it is the Court's responsibility to "fairly and equitably adjust the property interests of the spouses at the time the marriage is dissolved," Bledsoe v. Bledsoe, 294 Md. 183, 185-86 (1982), the Court finds that both parties made equal monetary and nonmonetary contributions to the marriage and the raising of their two children and, by all reasonable accounts, are on equal footing. After considering the above factors, and because there is only a $100.00 difference in the value of the property in each party's possession, the Court will not make a monetary award to adjust the equities of the parties with regard to personal property. As to the retirement accounts, the Court will order the Appellant to transfer to the Appellee by way of a Qualified Domestic Relations Order the sum of $27,512.11 from her Individual Retirement Account ("IRA") to adjust for the disparity in their respective IRAs. Finally, there was no dispute that Appellee has been the driver of the jointly titled 2003 Mazda. Appellant did not object to Appellee keeping this vehicle. Appellant will be ordered to sign whatever documentation is necessary to transfer title of the vehicle to the Appellee. On November 16, 2012, the Appellant filed a Motion to Reconsider requesting that the Honorable Justin King reconsider three issues. The first issue is the fact that Appellant was seeking physical and legal custody and he granted shared legal custody, but awarded the Appellee physical custody. The second issue is the fact that the Appellant had the children since August 2011 and that the Appellee paid no child support from that time to the present, even though, the Appellant provided their financial support. And, the third issue is the fact that under Maryland Law, the Appellee did dissipate his 401k retirement account. The Appellant is seeking a just and equitable remedy, when the Appellee is awarded physical custody, child support and a distribution of the Appellant’s 401k, when she had the 401k prior to the marriage and did not dissipate her account.. On November 16, 2012, the Appellant also filed a Motion to Alter or Amend Judgment or in the Alternative, a Motion for a New Trial. It, too, raised issues that the Appellant believed was an abuse of the Court’s discretion or that the trial court erred. The Appellant argued that the Appellant's debt is marital debt that was acquired during the marriage and should be shared by the parties. that if Appellant's debt is not marital, the non-marital debt clearly reflects on that party's economic circumstances at the time the award is to be made. Schweizer v. Schweizer, 301 Md. 626; 484 A.2d; 1984 Md. LEXIS 397. STANDARD OF REVIEW Pursuant to Maryland Rule 8-131(c), where, as here, an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. “It will not set aside the judgment of the trial court on the evidence unless clearly erroneous ” Md. Rule 8-131(c). “The appellate court must consider evidence produced at the trial in a light most favorable to the prevailing party[.]” Ryan v. Thurston, 276 Md. 390, 392, 347 A.2d 834, 835 (1975). “If there is any competent evidence to support the factual findings below, those findings cannot be held to be clearly erroneous.” Solomon v. Solomon, 383 Md. 176, 202, 857 A.2d 1109, 1123 (2004) (citation omitted). The trial court’s conclusions of law, however, are not entitled to the deference of the clearly erroneous standard. See Clancy v. King, 405 Md. 541, 554, 954 A.2d 1092, 1099 (2008). Friedman v. Hannan, 412 Md. 328, 335-36 (2010). I. Custody In all contested custody matters, the governing standard is the best interest of the child. McCready v. McCready, 323 Md. 476, 481 (1991). On appeal from a custody determination, we apply three interrelated standards of review: When the appellate court scrutinizes factual findings, the clearly erroneous standard of [Rule 8-131 (c)] applies. [Second,] if it appears that the [court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the [court] founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [court's] decision should be disturbed only if there has been a clear abuse of discretion. Gillespie v. Gillespie, 206 Md. App. 146, 170 (2012) (quoting In re Yve S., 373 Md. 551, 586 (2003). In Montgomery County Dep’t of Social Services v. Sanders, 38 Md. App. 406, 420 (1978), this Court set forth a nonexclusive list of factors relevant to the best interest inquiry: (1) fitness of the parents; (2) character and reputation of the parties; (3) desire of the natural parents and agreements between the parties; (4) potentiality of maintaining natural family relations; (5) preference of the child; (6) material opportunities affecting the future life of the child; (7) age, health and sex of the child; (8) residences of parents and opportunity for visitation; (9) length of separation from the natural parents; and (10) prior voluntary abandonment or surrender. Section XI. Appeals of Maryland Divorce and Separation Law, section 1. Interlocutory Orders are Appealable, specifically states that Courts & Jud. Proc. Section 12-303(3)(x) provides a right of appeal from an order “depriving a parent, grandparent, or natural guardian of the care and custody of his child, or changing the terms of such an order. In Davis v. Davis, 280 Md. 119, 372 A.2d 231 (Md.), cert. denied, 434 U.S. 939 (1977), the Court of Special Appeals set forth the standard of appellate review in custody cases. The resolution of a custody dispute continues to be one of the most difficult and demanding tasks of a trial judge. It requires thorough consideration of multiple and varied circumstances, full knowledge of the available options, including the positive and negative aspects of various custodial arrangements, and a careful recitation of the facts and conclusions that support the solution ultimately selected. Because most decisions are not subjected to appellate review, and because appellate review is properly limited in scope, Davis v. Davis, 280 Md. 119, 372 A.2d 231, cert. denied, 434 U.S. 939, 98 S.Ct. 430, 54 L.Ed.2d 299 (1977), the burden of making an appropriate decision necessarily rests heavily upon the shoulders of the trial judge. a. Expectation of the Trial Court. It has long been held that “[a] parent's interest in raising a child is, no doubt, a fundamental right, recognized by the United States Supreme Court...” In re Mark M., 365 Md. 687, 705, 782 A.2d 332 (2001), cert. denied, 2002 Md. LEXIS 1002 (Md. Dec. 23, 2002). When parties divorce, a trial court becomes involved in determining the custody of any children of the marriage. See Kramer v. Kramer, 26 Md. App. 620, 339 A.2d 328, 338 (1975) (“An equity court has a substantial interest and particular concern in the welfare of children, and while these courts are not a party to custody or support proceedings they do stand as parens patriae to the child when the jurisdiction of the court is invoked.”) In Maryland, a court must consider the children's best interest in making any custody determination. b. Best Interest of the Child Standard Montgomery County v. Saunders Chief Judge Gilbert “stressed that no single factor outweighs all others, and that the trial court must consider the totality of all factors, which include, but are not limited to: (a) The fitness of the parents; (b) The character and reputation of the parties; (c) The desire of the natural parents and the content of any agreement between them; (d) The potentiality of maintaining natural family relations; (e) The preference of the child, at least when the child is of sufficient age and capacity to form a rational judgment; (f) Any material opportunities affecting the future life of the child; (g) The age, health and sex of the child; (h) The suitability of the residences of the parents, and whether the noncustodial parent will have adequate opportunities for visitation. The Best Interest of the Child Standard. The Court, correctly, relied upon Montgomery County vs. Sanders, 38 Md. App. 406 (1977), to determine the best interest of the child. G. Fitness of the parents: Both parents presented testimony from witnesses who deem both of them "fit parents." Both parents are fit and proper persons to be awarded custody. The parties clearly love their children and place the children's well-being above all else. H. Character and reputation of the parties: There was no testimony provided that would call into doubt either party's character or reputation. Both parties are fully employed and are responsible, contributing members of society. I. Desires of the natural parents and agreements between the parties: The parties had arranged among themselves a suitable custody and access schedule, until May, 2013. D. Potentiality of maintaining natural family relations: The Honorable Judge King states that he is not convinced that there will be any effort by either party to maintain ties to the other party's extended family; there have been no such efforts since the parties' separation. He continues to state that the will of the parties to maintain relations with their respective in-laws is not as clear. Yet, the Honorable Judge King notes many of the witnesses who testified were relatives of the parties and that the children are fortunate to have a supportive family and both parties have suggested that they will maintain those family ties. It appears that the Appellant and the Appellee are on equal footing as it pertains to the potentiality of maintaining natural family relations. Yet, the Court has implied that the Appellant will fail to allow the children to foster relationships with their extended family, while the Appellee may do so. The Court further states that the children only spend time with their relatives when they are visiting their father, however, they are living with their Mother and their Grandmother and they are seeing their cousins as well as other family members often. E. Preference of the children: The Court stated that neither child wants to return to Laurel for a number of reasons. The children don't feel safe due to some recent criminal activity in the neighborhood. The Appellant and the children live in a large colonial, five bedroom home, two car garage, large deck, fireplaces, built in custom cabinets, high ceilings, etc. Each child has their own room, their own privacy and their own space they can call their own. They live with loving grandparents. They live with their mother. The community is made up of owner occupied, single family residences. The community is generally closed to foot traffic, since there is primarily one way in and one way out. Many of the people who are coming and going, live in the community. Unfortunately, criminal activity can occur in any neighborhood, especially, those with highly dense populations, such as large apartment complexes in Baltimore County. The Court stated that the children preferred to attend the same school that they were attending prior to August, 2011. It is understandable that the children would prefer to stay in the schools they were attending, however, each of the children were going to the next level, which meant for Darius, he could not go to the same school. However, the Court must consider how the children are doing in the schools where they lived with their mother. The Court stated that the children are doing well in Laurel and in fact, they are involved in extracurricular activities. The Court stated that the children were particularly concerned with the limitations that the Appellant has placed on their ability to visit with their father. The children are prohibited from leaving their home until their chores, cleaning their bedrooms and their bathroom, are complete. The Court stated that since it could take the children until 10:00pm, it interferes with their visitation with their father. It is the Appellant contention that the children are of the age that they should be responsible for the cleanliness of their respective living quarters. That if they picked up their clothes, put their items in their proper places, clean up regularly, it would not take until 10:00pm on a Friday evening to clean up their bedrooms and their bathrooms, which by the way, was an exception, not the rule. When the children are motivated, they can keep their spaces neat and clean or clean up earlier in the week. The Court stated that it applauds both parents for having the children perform chores, however, it is undermining the authority of the Appellant as a parent, when she can’t ask the children to complete their chores before they go out on the weekend. Especially, when there are other options, such as keeping their area neat all the time or cleaning up on Thursday night, so the children will be ready to leave on Friday. The Court noted that while the children were doing their chores, the Appellant, was usually lying down watching television and the Court states that the entire family should be made to do chores implying that the children are (a) made to clean up after everyone in the home and (b) made to clean when the Appellant has no household obligations, hence, the laying down watching television, These implications are untrue. The Appellant argues that this is a mischaracterization of the facts and a mischaracterization of the Appellant. Each person in the household has a responsibility to keep their area neat and clean. The children are pre-teen and teenager capable of cleaning after themselves. It is normal and routine to have the children make their bed, put their clothes away, vacuum the floor in their bedroom, etc. The Court stated that the children believes the Appellant is a strict disciplinarian and holds the children to exceptionally high standards and this was the last reason given by the children to want to live with the Appellee. It is true, that the Appellant believes her children are extremely intelligent and capable of accomplishing good grades in school and participating in extracurricular activities. She also recognizes when her children are not doing their best. However, they are both very happy, well-adjusted children. The Court describes them as “extremely well behaved.” The fact that the Appellant is a strict disciplinarian shows that she cares about her children’s future, if they are able to get into college, receive a scholarship, work independently, succeed in a competitive job market, etc. She spends time doing homework, discussing the issues that they are faced with and teaching them how to handle situations that comes their way. F. Material opportunities affecting the future life of the children: Both parties provide numerous opportunities for the children to participate in school and extracurricular activities. The Baltimore County and the Laurel communities both present adequate programs of which the children can take advantage and in which they have, can and do thrive. J. Age, health and sex of the children: The parties have a 13-year old son and an 12-year old daughter. Both are in good health and maintain appointments with all medical providers. K. Suitability of the residences of the parents, and whether the non- custodial parent will have adequate opportunities for visitation: Appellant resides in a four-bedroom home with the two children and her mother. Each child has its own bedroom. The children have resided in that home since August, 2011 and it is certainly suitable. The Appellee leases a two-bedroom apartment. When the children are with him, each child occupies one of the bedrooms and the Appellee sleeps on a couch in the living room. The Court states that it is not ideal. L.Length of separation from the natural parent who is seeking custody: Neither party has been "separated" from the children for any significant period of time. J. Prior voluntary abandonment or surrender of custody of the child: At the time of the initial separation, the Appellant moved out of the home but did not take the children with her. She maintained a residence with her grandmother and visited the children often. She received the children in August of 2011. The Court stated Legal custody awarded to only one parent precludes the other from being a full participant in the children's lives. It is in the best interest of the children that both parents be involved in major decisions affecting them. It is the Appellant contention that physical custody awarded to only one parent negatively impacts the noncustodial parent by limited access to the children. Essential to determining the facts of this case, and any custody case for that matter, is the findings of the Supreme Court of Michigan in Fletcher v. Fletcher, in which it was deemed that child custody cases are to “be reviewed in accordance with Section 8 of the Child Custody Act, which enumerates three standards of review, designed to promote the best interests and welfare of children.”(§ 26.06 Procedural Requirements): 1) First, findings of fact in child custody cases are to be reviewed under the “ ‘great weight of evidence” standard. The evidence of the case unmistakably and specifically shows that the totality of the evidence in the determination of child custody was not given the appropriate weight. For example, the testimony of the Appellee during the course of the custody trial failed to corroborate his answers provided in cross-examination. These inconsistencies in the statements and assertions made by the Appellee are present within the court transcript. 2.) Second, discretionary rulings are to be reviewed under a “palpable abuse of discretion” standard. To whom custody is granted is a discretionary dispositional ruling, and therefore a custody award should be affirmed unless it represents an abuse of discretion. According to the court, while the abuse of discretion is strict, it does not afford trial courts unfettered discretion in awarding custody. The court's exercise of that discretion is already limited by the statutory best interest factor. The evidence and facts of the case clearly and distinctly prove beyond preponderance of the evidence that sole legal custody and residential custody to the mother are in the best interests of the minor child. By not considering the totality of the evidence presented, the trial Judge's ruling was a direct abuse of discretion. 3) Third, questions of law must be reviewed for legal error, and when a court incorrectly chooses, interprets, or applies the law, it commits legal error that the appellate court is bound to correct. These specific rulings are directly relevant in the effort of rendering a valid and just decision on this case, and specific provisions, authorities, and statutes were overlooked or disregarded by the trial judge which deserve the attention of the Honorable Court of Special Appeals and, in the case of error by the trial court, these errors should be corrected by the Court of Special Appeals in accordance with Title 8 of the Child Custody Act which invests it with the authority to do so. Through this examination it will without any doubt be revealed that the trial court's judgment on the evidence was erroneous c. Joint Custody Defined. In our case, the Court has ordered a “Quasi” Joint Physical Custody Arrangement. The Appellant is ordered to all weekends, two evenings a week, four weeks in a summer, each holiday extension to Mondays, various holidays, etc. There are fifty-two weeks in a year, therefore, there are at least 104 days from the weekends alone. There are twenty-eight days for the summer break or four weeks in the summer. There are at least ten holidays and extensions to Mondays. The Appellant is also ordered to be with the children two evenings out of a week. The Court order surpasses the minimum standard for shared joint physical custody. If the Appellant has been given a shared joint physical custody arrangement, then the court should be specific concerning the terminology. In Taylor v. Taylor 60 Md. App. 268, 482 A.2d 164 (1984), the court discussed the definition of joint custody by breaking down the meaning of custody and its affects upon the court. The court in Taylor states, “while it is clear that both parents in a joint custody arrangement function as "custodians" in the sense that they are actually involved in the overall welfare of their child, a distinction must be made between sharing parental responsibility in major decision-making matters and sharing responsibility for providing a home for the child.” The court in Taylor states legal custody carries with it the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child's life and welfare. See generally P. Axelrod, A. Everett and A. Haralambie, Joint Custody, in Handling Child Custody Cases § 5.01, at 50 (1983); A. Berman and D. Kirsh, Definitions of Joint Custody, 5 Fam.Advoc. 2 (Fall, 1982); J. Ester, Maryland Custody Law-Fully Committed to the Child's Best Interests?, 41 Md.L.Rev. 225, 251 (1982); Joint Custody and Shared Parenting ch. 1, at 7 (J. Folberg ed. 1984). Joint legal custody means that both parents have an equal voice in making those decisions, and neither parent's rights are superior to the other. Physical custody, on the other hand, means the right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually with the parent having such custody. Joint physical custody is in reality "shared" or "divided" custody.5 Shared physical custody may, but need not, be on a 50/50 basis, and in fact most commonly will involve custody by one parent during the school year and by the other during summer vacation months, or division between weekdays and weekends, or between days and nights. With respect to physical custody, there is no difference between the rights and obligations of a parent having temporary custody of a child pursuant to an order of shared physical custody, and one having temporary custody pursuant to an award of visitation. Thus, a determination to grant legal custody to one parent and to allocate physical custody between the parents may be accomplished either by granting sole custody to one parent and specified rights of visitation to the other, or by granting legal custody to one parent and specified periods of physical custody to each parent. In either instance the effect will be the same. Criteria of Joint Custody: a. Willingness of Parents to Share Custody. Generally, the parents should be willing to undertake joint custody or it should not be ordered. However, in our case, the Court ordered a “quasi” joint custody relationship. From April 2011 through May 2012, the Appellant and the Appellee were able to mutually agree upon visitation , custody, etc. b. Fitness of Parents. The psychological and physical capabilities of both parents must be considered, although the determination may vary depending upon whether a parent is being evaluated for fitness for legal custody or for physical custody. The Court noted in the Opinion and Order that both parents were fit to raise the children. c. Preference of the Child. The reasonable preference of a child of suitable age and discretion should be considered. The children preferred to live with their Dad because he was not a strict disciplinarian, however, it is important for children to become responsible adults. d. Potential Disruption of Child's Social and School Life. Joint physical custody may seriously disrupt the social and school life of a child when each parent has the child for half the year, and the homes are not in close proximity to one another. The court not noted that the children was doing well in school in Laurel and that they were involved in extracurricular activities. e. Geographic Proximity of Parental Homes. Parental homes within the same school district offer certain advantages in a joint custody situation. Parental homes are not within the same school district, however, the Appellant and the Appellee has been successful in the past as it pertains to working their schedules to meet the needs of the children. f. Demands of Parental Employment. In some situations, joint physical custody will be appropriate only if the work hours of the parents are different, or there is flexibility in the demands of the employment of each. It is noted that the Appellee works late and the children spend several hours unaccompanied, if the Appellant had the children during those times, the children would be supervised. g. Age and Number of Children. The factor of age obviously interrelates with other factors already discussed. h. Sincerity of Parents' Request. A number of interested observers have opposed the concept of joint custody absent mutual agreement on the ground that one spouse may interpose a demand for joint custody solely to gain bargaining leverage over the other in extracting favorable alimony, child support or property concessions. See, e.g., B. Levy and C. Chambers, The Folly of Joint Custody, 3 Fam.Advoc. 6, 7-8 (Spring, 1981); J. Schulmann and V. Pitt, Second Thoughts on Joint Child Custody: Analysis of Legislation and its Implication for Women and Children, in Joint Custody and Shared Parenting ch. 19, at 213 (J. Folberg ed. 1984). It is noted in the Court’s Opinion and Order, that both parents were sincerely interested in what was best for the children. In fact, the Court ordered parenting classes to assist the Appellant and the Appellee to build a working relationship so they could be successful in the future. To determine whether the trial judge abused his discretion, his exact nature of the custody arrangement must be understood. It is clear he did not intend to perpetuate the arrangement found to exist at the time of trial, which was characterized as legal and physical custody by the Appellant. His custody arrangement was not based on an arrangement stipulated by the “visitation schedule” nor was it a basis of the pendent lite custody order. It appears by the Opinion and Order, the Court wanted the Appellant and the Appellee to share the responsibility of parenting. Also, it appears that the Court wanted the Appellant and the Appellee to both play major roles in the children’s development. The Court should have ordered shared Physical and Legal Custody and determined where the children should go to school. Therefore, the Court erred by awarding physical custody to the Appellee, even though, the conditions that were ordered reflects a shared physical custody. II. CHILD SUPPORT AWARD Family Law Code Annotated § 12-101. Award by court – Authorized, states the following: (a) Awarded from time of filing of pleading: (1) Unless the court finds from the evidence that the amount of the award will produce an inequitable result, for an initial pleading that requests child support pendente lite, the court shall award child support for a period from the filing of the pleading that requests child support. (2) Notwithstanding paragraph (1) of this subsection, unless the court finds from the evidence that the amount of the award will produce an inequitable result, for an initial pleading filed by a child support agency that requests child support, the court shall award child support for a period from the filing of the pleading that requests child support. (3) 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. Here, in the case at hand, the Court ordered the Appellee to pay Appellant $1,232.00 per month for the months of November and December in accordance with the attached Maryland Child Support Guidelines. The court stated that the Appellant earns $1,923.24 semi-monthly or $3,846.48 per month. Appellee earns $6,472.00 per month. Health insurance for the children is provided as part of Appellee's union dues. There was no testimony regarding the cost to insure the children. There are no extraordinary expenses associated with the children nor is there any daycare expense. However, the children were in the Appellee’s custody since August 2011 and the Appellee did not pay any child support from that time. In fact, there has been testimony by the Appellant that the Appellee had not paid child support. FL section 12-201 states that child support should be awarded from the time of the pleading for child support. The Appellant filed her pleading requesting child support on August 4, 2011. She had custody from August 2011. She had custody of the children until May 28, 2012. She regained custody of her children three days later on May 31, 2012 and based on the award of the Court, she will have them until December 21, 2012. Therefore, child support should have been awarded for sixteen months (16) instead of two (2) months. Pursuant to FL section 12-202(a) the court “shall use the child support guidelines” in calculating each parents’ child support obligation. There is a “rebuttable presumption that the amount of child support which would result from the application of the child support guidelines” is correct. FL § 12202(a)(2)(i). This presumption may be rebutted “by evidence that the application of the guidelines would be unjust or inappropriate in a particular case.” FL § 12-202(a)(2)(ii). If the court determines that a deviation from the guidelines figure is appropriate, it “shall make a written finding or specific finding on the record stating the reasons for departing from the guidelines.” FL § 12-202(a)(2)(v)(1). Its findings must include the child support obligation that would have resulted by application of the guidelines, the amount of the departure from that figure, and the reasons justifying such a deviation. FL § 12 202(a)(2)(v)(2). In our case, the Appellee did not provide persuasive testimony that a granting of child support from the initial pleading date of August 4, 2011, would be unjust or inappropriate, especially, when he did not contribute to the financial well-being of the children. The Court did not make a written finding or specific finding on the record stating the reasons for departing from the guidelines as it pertains to the Appellee. Therefore, the trial court erred by not granting child support to the Appellant since the time of the pleading, August 4, 2011, and since the time of physical custody of the children. In cases where there was not shared custody, “each parent’s child support obligation shall be determined by adding each parent’s respective share of the basic child support obligation, work-related child care expenses, health insurance expenses, extraordinary medical expenses, and additional expenses under subsection [12-204(i)]; the person receiving child support (“the obligee”) “shall be presumed to spend that parent’s total child support obligation directly on the child or children”; and the person paying child support (“the obligor”) “shall owe that parent’s total child support obligation as child support to the obligee minus any ordered payments included in the calculations made directly on behalf of the child or children for work-related child care expenses, health insurance expenses, extraordinary medical expenses, or additional expenses under subsection [12204(i)].” FL § 12-204(l). (Emphasis added. Maryland’s Shared Custody Guidelines can be Used if the Subject Child has at Least 128 Overnights Per Year with Each Parent Under Maryland law, sole physical custody becomes shared custody as the number of over nights spent with the non- custodial parent exceeds 35% or 128 days per year. To apply the Court’s order to the 128 days per year, it is important to understand that Appellant is ordered to spend all weekends, two evenings a week, four weeks in a summer, each holiday extension to Mondays, various holidays, etc. There are fifty-two weeks in a year, therefore, there are at least 104 days from the weekends alone. There are twenty-eight days for the summer break or four weeks in the summer. There are at least ten holidays and extensions to Mondays. The Appellant is also ordered to be with the children two evenings out of a week. The Court order surpasses the minimum standard for shared joint physical custody of 128 days. There are two important principles the court takes into consideration when deciding a Maryland Custody Order. One is what kind of living arrangement is in the best interest of the child. The other principal is one of the factors embedded into the best interest of the child list- is maintaining the status quo and to not grant additional visitation to the non-custodial parent who has not recently had a significant involvement in their child’s life. In our case, the Court determined the earnings of the Appellant and the Appellee and ordered the Appellant to pay to the Appellee $733.00 per month in child support. However, the Court also ordered the Appellant to visit with the children at least four days of the seven days in a week, incur the expenses of the children during the time that she has them, to stay with them in the evenings that are ordered, to take care of them, to teach them, to help them grow, etc. Now, keep in mind, the Court has ordered the Appellant to do what she has been doing since she was separated from the Appellee, when she was incurring the expense of raising the children. Therefore, it is the Appellant’s contention that child support should not have been ordered and each, the Appellant and the Appellee should incur the shared expense of raising the children. The child support order requiring the Appellant to pay the Appellee, contradicts the custody order which requires the Appellant to be with the children four days a week. The Court erred in its ruling of the child support because the custody order calls for shared joint physical custody, where the children goes to school in Baltimore County. III. MARITAL PROPERTY DISTRIBUTION We start with the well-established proposition that only marital property is subject to the equitable distribution provisions of Md. Code (2006 Repl. Vol.), Family Law Article (“FL”) §§ 8-201, et seq. Marital property is “all property, however titled, acquired by 1 or both parties during the marriage.” FL § 8201(e)(1). When the court makes an equitable distribution of the property, the court first determines whether the property belonging to the couple is marital property. It then determines the value of that property. It is the parties’ responsibility to present the evidence from which the court can make these determinations. Finally, Pursuant to §8-205, when determining the amount and method of payment of any monetary award, the Court shall consider the following factors: • The contributions, monetary and non-monetary, of each party to the wellbeing of the family; • The value of all of the property interests of each spouse; • The economic circumstances of each spouse at the time the award is to be made; • The circumstances and facts which contributed to the estrangement of the parties; • The duration of the marriage; • The age and physical and mental condition of the parties; • How and when specific marital property was acquired, including the effort expended by each party in accumulating the marital property; • Any award or other provision which the court has made with respect to family use personal property or the family home, and any award of alimony; • Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award; and, • In lawsuits after 1994, the contribution of either party to the acquisition of the property is also considered. As a part of an order addressing a marital property award, the court can order a transfer of ownership of certain property titled in one spouse’s name to the other spouse. Or, the parties may agree and take steps to transfer this property on their own in and as a result of a marital agreement. The court can order a transfer of ownership in retirement accounts, pensions and profit sharing, in real property if the property was the primary residence of the parties, and family use personal property. DISSIPATION OF MARITAL PROPERTY Generally, "property disposed of before commencement of the trial under most circumstances cannot be marital property". Hoffman v. Hoffman, 93 Md. App. 704, 721 (1992) (quoting Gravenstine v. Gravenstine, 58 Md. App. 158, 177 (1984)). Only property in existence at the time of the trial can be included as marital property. Id. One exception to this rule is funds that have been dissipated. Maryland law defines dissipation as when "one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time where the marriage is undergoing an irreconcilable breakdown." Omayaka v. Omayaka, 417 Md. 643, 651 (2011) (quoting Sharp v. Sharp, 58 Md. App. 386, 401 (1984)). In Omayaka, the Court found that dissipation could occur when the marriage is not undergoing an irreconcilable breakdown, and/or when "the dissipating spouse's principal purpose was a purpose other than the purpose 'of reducing the amount of funds that would be available for equitable distribution at the time of the divorce.'" Id. (citing Welsh v. Welsh, 135 Md. App. 29, 51 (2000)). The "ultimate burden of persuasion remains on the party who claims that the other party has dissipated marital assets." Omayaka, 417 Md. at 656. Furthermore, attorney's fees are generally viewed as a legitimate expenditure of marital funds. See Allison v. Allison, 160 Md. App. 331, 338 (2004). In the case at hand, the Appellant filed her case against the Appellee on August 4, 2011. The Appellee had assets in his 401k retirement account totaling $19,041.18. This amount is arrived through the testimony that was given by Appellee and the evidence relied upon by the court, the fourth quarter statement of the Appellee’s 401k Statement. This statement showed a balance of $5,024.22 and a withdrawal of $14,016.96, which equals $19,041.18. This is a huge 73.61% of his 401k retirement account. The fourth quarter 2011 covers a period from September through December, 2011, which occurred after the filing of the Appellant’s Complaint for Limited Divorce and after the Filing of the Emergency Complaint for Pendente Lite Custody with Affidavit. The Appellant and the Appellee did not have an agreement for the Appellee to utilize 73.61% of his 401k retirement account. The Appellee provided testimony that he withdrew the monies from his 401k retirement account to pay several of his creditors, including his legal counsel. The monies were not used for the purpose of the marriage, it was used for his personal and individual needs. The Appellant produced sufficient evidence during trial to generate a genuine question of fact on the issues of whether the assets were taken without agreement, and/or where the funds are, and or were they used for marital or family expenses. The Appellee’s own testimony fits the definition of dissipation, which is to use marital funds for the purpose of that individual, not the husband and the wife, for a purpose unrelated to the marriage at a time where the marriage is undergoing an irreconcilable breakdown. a. At least $6,153.84 of the Appellant’s 401k was not marital Property When the court makes an equitable distribution of the property, the court first determines what property belonging to the couple is marital property. It then determines the value of that property. It is the parties’ responsibility to present the evidence from which the court can make these determinations. The Court has ordered a division of the Appellant’s 401k Retirement account. The Court did not consider that the Appellant began putting money into the account prior to the marriage and that portion is not subject to distribution. If there is $40,000 in the 401k retirement account at the time of trial and it was accumulating for thirteen years, eleven years during the marriage. The average yearly deposits would be $3,076.92 by two years before the marriage would equal $6,153.84. At least, $6,153.84 should not have been distributed as marital assets. The Court erred by failing to consider the portion of the 401k Retirement Account that should not have been considered marital assets. And, it should not have been distributed. b. The Appellant is Penalized for not dissipating her 401k retirement account The Court did not consider the fact that by distributing the Appellant’s 401k Retirement account to the Appellee, it is penalizing the Appellant for not dissipating her account. Penalty is defined as (i) a punishment imposed for breaking a law, rule, or contract or (ii) a disadvantage or unpleasant experience suffered as the result of an action or circumstance. Here, we have two individuals, the Appellant and the Appellee, who both have 401k Retirement accounts at the end of their marriage and at the time of filing for divorce. One party, the Appellee, liquidates his account in the amount of $14,016.96, or 73.6% of its actual value. The other party, the Appellant, does not liquidate her account. She enters into agreements to pay her legal counsel through her wages. She makes monthly payments to her creditors, even though, she makes almost half of what the Appellee makes per pay period. Yet, the Court orders the Appellant to not only give a portion of her retirement account to the Appellee, but 68.78% of the $40,000, or $27,512.11. The Court erred and it abused its discretion when it made this injurious and inequitable ruling. Here, the Court states that the Appellant has $40,000 in her 401k retirement account and that the Appellee has $5,042.22 because he has used 73.6% of it once he received notice of the Divorce filing. The Court adds the Appellant’s $40,000 plus the remaining $5,042.22, which totals $45,024.22 and gives Appellee by way of a Qualified Domestic Relations Order the sum of $27,512.11, which is 68% of the Appellant’s 401k and it does not take into consideration the fact that she was saving money prior to her marriage in this 401k. The Court’s ruling encourages parties to dissipate their marital property. What would prevent a person from acting in this manner, when they can use marital funds in their control and then have the court to grant them the monies in their spouse’s control, too? Just consider the facts of this case. The Appellant makes almost half of what the Appellee makes per month. The Appellant was reasonable and she was disciplined. She has negotiated monthly payments with her legal counsel. She has tried to pay her debts from her wages and not through the withdrawal of her 401k. If the Appellee did not dissipate his 401k. The distribution would look like $19,000 plus $40,000 equaling $59,000 divided by 2 equals $29,500, of which the Appellant would be paying approximately $10,500 or 26% of her $40,000 versus $27,000 or 68% of her $40,000. The Court must consider the impact of dissipation on the Appellant. She is required to pay more than 42% of the 401k because of the Appellee’s bad act of dissipating his account. This has an devastating impact on the Appellant, her future and the children. This 42% is a penalty that the Appellant has to endure because she was trying to be responsible with her finances and consider her future needs by not liquidating her 401k account. An equitable distribution for the Appellant and the Appellee is to allow the both to pay their debts and legal fees out of their respectively 401k retirement account and then distribute the remaining balances. To fail to do so, will cause the Appellant has suffer a penalty for keeping her 401k Retirement intact and making monthly payments to her legal counsel until the debt is paid off. c. The Appellant and the Appellee to be treated fair, equitable and equal under the law The Court erred by awarding to the Appellee, 68.78% of the Appellant’s 401k retirement account after the Appellee purposely dissipates his own 401k account by 73.6%. The Court states that the Appellee was out of work for a short period of time. The Court states that he used some of the monies for purposes of hiring legal counsel. The Court relied upon Allison v. Allison, 160 Md. App. 331, 338 (2004), which states that hiring legal counsel is a legitimate expenditure of marital property. Therefore, the Court should have allowed the Appellant to pay her legal counsel by withdrawing funds from her own 401k retirement account before the calculation of marital property and distribution of marital assets. Pursuant to Legal Rights in Marriage & Divorce in Maryland, written by the Women’s Law Center of Maryland, revised by Laurence Ruth for the Fourth Edition, states that absent an agreement, the division of property is governed by the Marital Property Act. Under the act, all marital property is subject to equitable distribution. Equitable distribution does not necessarily mean equal distribution, but it should be fair and just. CONCLUSION Discretionary rulings are to be reviewed under a “palpable abuse of discretion” standard. To whom custody is granted is a discretionary dispositional ruling, and therefore a custody award should be affirmed unless it represents an abuse of discretion. According to the court, while the abuse of discretion is strict, it does not afford trial courts unfettered discretion in awarding custody. The court's exercise of that discretion is already limited by the statutory best interest factor. The evidence and facts of the case clearly and distinctly prove beyond preponderance of the evidence that sole legal custody and residential custody to the father are in the best interests of the minor child. By not considering the totality of the evidence presented, and due to the lack of completeness and preciseness, the trial Judge's ruling was a direct abuse of discretion. Custody of one's children is a primary right of a parent. When parties place custody of their children under the jurisdiction of a trial court, that trial court is invested with the duty of parents patriae to ensure that the children's best interests are met. Indeed, the trial court is required to exercise its own independent judgment over such matters, and a failure to do so is an abuse of discretion. Kovacs v. Kovacs, 98 Md. App. 289, 633 A. 2d 425, 431 (1993), cert. denied 334 Md. 211, 638 A.2d 753 (1994). Appellant avers that the record herein clearly supports his contention that the trial Court abused its discretion and/or erred as a matter of law when it failed to acknowledge that fact. Certificate of Compliance I hereby certify, pursuant to Maryland Rules 8-112 and 8-504, that this brief was printed with proportionately spaced 13 point font, Times New Roman style, with at least 1.5 spacing between the lines and the text, except headings, indented quotations and footnotes. _________________________ Arlene A. Smith-Scott, Esq. CERTIFICATE OF SERVICE I hereby certify that on May 28, 2013, two copies of the brief were served, by first class mail or overnight delivery, to the following persons: Britta Hugoson-Burnet, Esquire Law Office of Britta Hugoson-Burnet 400 Allegheny Avenue Towson, MD 21204 Attorney for Defendant ______________________________ Arlene A. Smith-Scott, Esq. 4