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King v. Pfeiffer - Appellant's Reply Brief
King v. Pfeiffer - Appellant's Reply Brief
Docket 127
Pursu ant t.o a Writ of Certiorari for the Court ofSpecial Appeals
(Petition Docket No. 460, September Term, 2010; No. 1007, Sept. Term, 2009)
Paul G. Griffin
1875 Connecticut Ave ., N.W. Ste. 710
Washington, D. C. 20009
(301) 254-2745; [email protected]'let
Roy Morris
PO Box 100212
Arlington, Virginia 22210
(202) 657 5793; Rov [email protected]
Docket 127
___________________________
Paul G. Griffin
1875 Connecticut Ave., N.W. Ste. 710
Washington, D.C. 20009
(301) 254-2745; [email protected]
Roy Morris
PO Box 100212
Arlington, Virginia 22210
(202) 657 5793; [email protected]
ARGUMENT…………………………………………………………...1
I. The Appellee’s Argument Cannot Be Reconciled with Any Reasonable
Interpretation of the Domestic Violence Statutes ....................................... 5
A. The DV Statute’s Text, History, Structure, and Purpose Preclude the
Premature Termination of Temporary Protective Orders .................................. 8
1. The DV Statute Does Not “Shield Extrinsic Fraud From Prompt Review” ................... 8
2. The Text of Md Code FL §4-507 of the Domestic Violence Statute Does Not Permit
Motions to Prematurely Quash TPOs ............................................................................... 10
B. Assuming. Arguendo, that TPO’s Could Be Prematurely Quashed Under
MD FL §4-507, Appellee Does Not Dispute the Facts That Show Its
Procedural Requirements Were Not Met ......................................................... 12
II. Appellee Provides No Valid Support for His Proposition That a TPO
Cannot Issue to Protect a Child and Her mother Against Abuse in
Maryland If a Custody Case Is Pending in Another State Where No Party
Was Living. ................................................................................................... 14
III. The Appellee Misapplies Many Legal Concepts and Facts, Often
Misrepresenting Them ................................................................................. 16
IV. There Was No Urgent Need to Rush to Quash the TPO; Duty Judge
Craven Did Not Find the Mother to Be A Threat to the Child ................ 19
V. Clear Mistake, Fraud and Irregularity Justified the Vacating of Judge
Craven’s June 5, 2008 Decision to Vacate the TPO .................................. 21
Mistake ............................................................................................................. 22
Extrinsic Fraud ................................................................................................. 22
Irregularity ....................................................................................................... 23
Abuse of Discretion ......................................................................................... 24
CONCLUSION……………………………………………………….25
i
TABLE OF AUTHORITIES
CASES
Autobahn Motors v. Baltimore, 321 Md. 558, 583, A.2d 731 (1989) .................... 22
Billingsley v. Lawson, 43 Md. APP 713, 406 A.2d 946 (1979) ............................. 22
Coburn v. Coburn, 674 A.2d 951 (1996) ............................................................... 25
Jones v. Rosenberg, 178 Md. App. 54, 940 A.2d 1109 (2008) ................................ 8
Katsenelenbogen v. Katsenelenbogen, 365 Md. 122, 775 A.2d 1249 (2001) .......... 8
Maryland Lumber v. Savoy, 286 Md. 98, 405 A.2d 741 (1979). ........................... 23
Mutual Benefit Society of Baltimore, Inc. v. Haywood, 257 Md. 538, 263 A.2d
868 (1970) ........................................................................................................... 23
Phillips v. Venker, 557 A.2d 1338 (1989) .............................................................. 13
Tandra S. v. Tyrone W, 336 Md. 303, 648 A.2d 439 (1994) ................................. 22
Torboli v. Torboli, 365 Md. 52, 775 A.2d 1207 (2001) ............................. 11, 13, 22
Weitz v. MacKenzie, 273 Md. 628, 331 A.2d 291 (1975) ..................................... 23
Yopp v. Hodges, 598 S.E.2d 760, 43 Va.App. 427 (2004) .................................... 16
STATUTES
MD Code FL § 9.5-201 .......................................................................................... 19
MD Code FL §4-501, et seq ......................................................................... 1, 10, 12
MD Code FL §4-501(p) .......................................................................................... 11
MD Code FL §4-505 ................................................................................................ 8
MD Code FL § 4-506(a), (b)(1) ................................................................................ 8
MD Code FL §4-507 .................................................................................. 11, 12, 22
MD Code FL §4-507(a)(1) ......................................................................... 10, 11, 12
MD Code FL §4-508.1 ....................................................................................... 4, 17
MD Code FL §9.5-101(h) ....................................................................................... 19
MD Code FL §9.5-109 ........................................................................................... 20
MD Code FL §9.5-305 ........................................................................................... 17
MD Code Human Services §1-201, 1-202 ............................................................ 24
OTHER AUTHORITIES
2002 Md. Laws Ch. 235 ......................................................................................... 12
RULES
MD Rule §2-535 ............................................................................................... 21, 23
MD Rule §8-131 ....................................................................................................... 1
MD Rule §8-501(k) .................................................................................................. 1
MD Rule §16-102 ................................................................................................... 22
ii
iii
ARGUMENT
The critical question of this case -- for which Appellant’s Petition for writ of certi-
parte hearing before a duty judge (other than the original TPO judge) during the “most
vulnerable time” between the TPO hearing and the court-scheduled Final Protective
This case presents the rare opportunity to affirm Maryland’s Domestic Violation
Statute’s protections (DV Statutes, MD Code FL §4-501, et seq.), and assure that those
statutes carry out the role and function for which they were primarily intended, namely to
protect domestic violence victims from further abuse by their alleged abusers. As urged
by Amici,3 the Court should tread carefully so as not to upset the delicate balance of
Maryland’s DV Statutes, particularly given that victims seeking TPO relief are typically
1
Appellant notes that Appellee’s Brief raised novel issues that were not certified for
certiorari – MD Crt of Appeals Rule §8-131. Compare, Appellant Petition for Certiorari
at 5-6, Appellant Br. at 7, and Appellee Br. at 13.
2
In
this
Reply,
Appendix
References:
“E/App.-‐“
refers
to
Appellant’s
Appendix
with
Record
Extract
originally
filed
at
Court
of
Special
Appeals,
and
now
before
this
Court,
per
MD
Crt
of
Appeals
Rule
§8-‐501(k),
and
“Apx.-‐“
Refers
to
the
Appendix
filed
by
Appellee
before
this
Court
on
April
1,
2011.
3
Brief Of Amici Curiae The Domestic Violence Legal Empowerment And Appeals Pro-
ject Et Al. In Support Of Appellant, March 3, 2011 (Amici Brief). Amici joining in that
brief were: Domestic Violence Legal Empowerment and Appeals Project (“DV LEAP”),
a partnership between the George Washington University Law School and a network of
participating law firms; Legal Resource Center on Violence Against Women (“Legal
Resource Center”), a Takoma Park, Maryland-based national non-profit public interest
organization that works to improve legal representation for domestic violence survivors
in interstate custody cases so that victims are not forced to choose between their children
and their safety; and Battered Women’s Justice Project – Domestic Abuse Intervention
Programs, Inc., Duluth, MN (“BWJP”), a national technical assistance center. Amici
asked this Court to overturn the decisions below. See, Amici Brief at 1-3.
1
pro se, and traumatized during the statutorily protected “most vulnerable time” between
the issuance of the TPO and the court-scheduled FPO. It is during this “most vulnerable
time” period that the parties are instructed – by the directives clearly printed on the TPO
– to obtain counsel and gather their evidence to present at the court-scheduled FPO
hearing date specified in the TPO (which is set by the Court for seven days from the TPO
issue date). Furthermore, where – as here – the TPO judge ordered an investigation into
suspected sexual and physical abuse (including medical neglect) by the Department of
Social Services (DSS), this critical time-period provides the bare minimum time neces-
sary for the investigation to be properly done and its findings properly presented at the
The Appellee goes to great lengths to justify the clear irregularities, fraud, and
mistake of the unscheduled ex parte June 5, 2008 hearing before Duty Judge Craven
below. At that hearing, Duty Judge Craven engaged in an unprecedented act of prema-
turely quashing Judge Boynton’s June 2, 2008 TPO and explicitly second guessing Judge
Boynton’s judgment of the Appellant (Mother)’s testimony of June 2, 2008 – which Duty
Judge Craven never heard or read, and thus knew nothing of its content. Rather than
being able to rely solely on the trial court record below, Appellee attempts to prove that
Duty Judge Craven was correct in retrospect, by flooding this court with hundreds of
pages of documents, most of which Duty Judge Craven never saw or read.4 But, no
4
The Appellee filed hundreds of pages in an Appendix accompanying his brief but failed
to identify which pages were in the record and which were not. Appellant filed a Motion
to Strike those pages that were not part of the record, duplicative and/or irrelevant,
amounting to some two-thirds of Appellee’s total submission. See, Appellant’s Motion to
2
amount of documents from outside of the record can prove Duty Judge Craven’s only
conclusion to be sound. Judge Craven’s sole “reasoning” for vacating the TPO is clearly
"I find she knows about this, has chosen not to be here and there is reason to be-
lieve that the testimony given to Judge Boynton a few days ago is false."
The undisputed fact is that Judge Craven neither heard or read pro se Appellant’s
June 2, 2008 testimony before Judge Boynton, which testimony showed an extensive
discussion between Judge Boynton and Appellant concerning the Virginia custody case
and Judge Boynton’s views on its relationship, if any, to the Maryland TPO. [See, June 2,
Appellee Br. at 33, the June 2, 2008 testimony showed that Judge Boynton had no interest
in whether there was Virginia-licensed GAL assigned to the Virginia custody proceeding,
Strike Unauthorized Portions of Appellee’s Appendix, filed April 12, 2011. In response,
Appellee filed over 13 pages of new argument, three pages of undecipherable lists, and a
four page affidavit of Counsel for Appellee in a belated attempt to justify why this Court
should uphold the trial court based on documents that, for the most part, the trial court
neither saw nor heard argument on. See, Appellee’s Opposition to Appellant’s Motion to
Strike Portions of the [Appellee’s] Appendix, filed April 18, 2011. The extent to which
Appellee had to go to supplement the record on appeal further demonstrates why the TPO
should not have been prematurely quashed prior to the court-scheduled FPO hearing
where both sides could have presented evidence under the rules of evidence and with
counsel. Appellee also fails to note the pending appeal of December 2009 DC Superior
Court Order found at Apx. 233. [King v. Pfeiffer, DC Crt of Appeals, Case No. 09·FM-
1484, Oral Argument heard on October 20, 2010)]
5
Appellee Brief’s extensive argument regarding child custody jurisdiction is irrelevant as
to whether the TPO was improperly issued. Under the laws of Maryland, Judge Boynton
had the power to issue a TPO to protect persons within Maryland as he did on June 2,
3
Judge Boynton felt that a GAL was required for the Maryland TPO proceedings, he had
the option to assign a Maryland-licensed GAL to the case, but he did not. The fractured
supported by the record (or any other documents). Appellee Br. at 14 and 33.
Appellee advanced in its brief a “red herring” argument that there was a threat to
the child if the TPO had not been lifted. E.g. Appellee Br. at 17. However, there is
nothing in either Judge Craven’s rulings or his dicta that suggest that he perceived any
credible threat to the child that would justify the premature quashing of the TPO. More-
over, if Duty Judge Craven had found such a threat, the proper remedy would have been
to issue a removal order to place the child in the safety of the Montgomery County
DSS/CPS until the Court-scheduled FPO hearing – not to prematurely quash the TPO
issued in the good judgment of Judge Boynton. The lack of credibility of Appellee’s
claim that Appellant was somehow a threat to the child is underscored by the failure of
both Appellee and the DSS/CPS to ask Duty Judge Craven for such removal relief below,
and that Duty Judge Craven did not order the child to be removed from the Appellant. In
fact, Duty Judge Craven left the child in the legal custody of the Appellant for the rest of
the June 5, 2008 – “as normal” under the previously existing custody/visitation regime.6
2008 with regard to abuse and neglect of the child, and violence towards the Appellant.
Appellant Br. at 29-30. In a failed attempt to make an out-of-state custody order rele-
vant, Appellee misapplies MD Code FL §4-508.1(a) (Appellee Br. at 11) by ignoring 4-
508.1(a)(2) ("’Order for protection’ does not include a support or child custody order.”)
6
See, February 21, 2008 Virginia “Amended” Custody Order, at Apx. 162.
4
I. The Appellee’s Argument Cannot Be Reconciled with Any Reasonable
Interpretation of the Domestic Violence Statutes
Appellee’s position is antithetical to the purposes of the DV statutes (MD Code FL
§4-‐501, et. seq.) and provides no effective procedural protections against a motion to
prematurely quash a TPO, particularly in the case of a pro se DV victim
Appellee cannot dispute that TPO Judge Boynton engaged pro se Appellant (accom-
panied by her daughter) in extensive questioning after being referred for a TPO by her
Montgomery County Abused Persons Program (APP) assigned counselor [June 2, 2008
Tx. at 7-9, E/App.-25-27]. After that hearing, TPO Judge Boynton issued a TPO on June
1) Appellee “SHALL NOT abuse, threaten to abuse, and/or harass , or “contact” “by
any means” the Appellant and her daughter;
3) both were “eligible for relief,” and there were “reasonable grounds to believe that
Respondent committed ....Statutory abuse of a child (Physical and Sexual) (Forward
to DSS for Investigation).”
5) “Each party should have a lawyer. If you are the petitioner and cannot get a private
lawyer, there are support agencies that may be able to help you .... , all of the Rules of
Evidence will apply to the case ....
In the transcript of the June 2, 2008 TPO hearing, TPO Judge Boynton specifically
instructed the Appellant as to what she should expect next. He told her that the date of
5
the next hearing would be “next Monday,” and that the case would be listed on the
Court’s docket (which is listed electronically “downstairs” on the “monitors upon the
wall” of the courthouse). See, June 2, 2008 Tx. at 32, E/App.- 50.
Without question, TPO Judge Boynton, consistent with the DV Statutes, created
clear expectations for the pro se Appellant about how the TPO process would roll out
over the week leading up to the FPO Hearing. In order for those expectations to be met
and the parties to be properly prepared for the FPO Hearing, all of the procedural protec-
tions set forth in the DV Statutes of Maryland and the words of the TPO must be fully
followed in every case by all courts. The need for these procedural protections are
particularly acute when the person seeking protection is pro se and had not yet had an
“[T]he most vulnerable time for domestic violence victims is immediately fol-
lowing the issuance of a temporary protective order.”
It is inappropriate to cut procedural corners that weaken the protections of a TPO dur-
ing that “most vulnerable time” between the issuance of the TPO and the FPO hearing.
Indeed, there was no ambiguity in the June 2, 2008 TPO’s words (which are mostly
dictated by statute and by the standard form for compliance). There also was no ambigui-
ty in TPO Judge Boynton’s directives to pro se Appellant about how the process was to
proceed between June 2, 2008 and the June 9, 2008 FPO Hearing. Appellee ignores
6
those words and directives of TPO Judge Boynton, along with the expectations they
with the DV statute to expect that a pro se domestic violence victim – who just received a
TPO – to be expected to follow any directives from the alleged abuser or his counsel.
However, that is exactly what happened in this case. The alleged abuser’s counsel
unilaterally demanded that the victim go – on at most only a few hours notice – to an
unscheduled, non-court-set hearing without her assigned lawyer from the House of Ruth
or completion of the sexual physical abuse (including medical neglect) DSS/CPS investi-
gation. The direct and indirect directives by the alleged abuser’s counsel were incon-
sistent with the words of the TPO, Judge Boynton’s directives, any response to queries to
either the Court clerk or even the chambers of the Duty Judge Craven – all of whom were
unaware of any scheduled hearing for this case for June 5, 2008 as of that morning.
These inconsistencies and the widespread lack of knowledge of any hearing were not
Appellee’s conduct below demonstrates how, under Appellee’s view of the issues, an
alleged abuser and his counsel can continue to use unilateral aggressive and intimidating
tactics to further perpetuate the abuse that the TPO – which contained a “no contact”
provision – was designed to halt for the seven-day “most vulnerable time” between the
TPO and court-scheduled FPO hearing. It highlights why these procedural protections
7
Arguably, the Appellee’s counsel’s attempt to directly contact Appellant just prior to the
June 5, 2008 hearing was a violation of at least the spirit, if not the intent, of the TPO’s
“no contact” provision.
7
must be strictly adhered to.
Addressing arguments made by Amici, Appellee asserts that alleged abusers need
the ability to prematurely terminate TPOs to prevent the DV Statute from “shield[ing]
extrinsic fraud from prompt review.” Appellee Br. at 33. As a threshold matter, Duty
Judge Craven did not find “extrinsic fraud” nor did the record show any had occurred.8
Furthermore, even if extrinsic fraud did exist, Appellee ignores the General
Assembly’s built-in protection to respondents against fraud or other potential defects with
TPOs: one of the shortest TPO periods in the country. See Amici Br. at 7, 14 & App. A.
Within seven days, respondents are given an FPO hearing and “shall have an opportunity
to be heard on the question of whether the judge should issue a final protective order.”
time” for abuse victims (Appellee Br. at 21, 32) – is part of a deliberative balance struck
by the General Assembly. See Katsenelenbogen v. Katsenelenbogen, 365 Md. 122, 135-
36 (2001); Amici Br. at 7-8, 11. The brevity of the period provides alleged abusers a
8
As Appellee’s own brief states: “Fraud is extrinsic when it actually prevents an adver-
sarial trial but is intrinsic when it is employed during the course of the hearing which
provides the forum for the truth to appear, albeit, the truth was distorted by the com-
plained of fraud." Jones v. Rosenberg, 178 Md. App. 54, 73, 940 A.2d 1109, 1119 (MD
Ct. Spec. App. 2008). The court-scheduled FPO hearing provides both parties the
opportunity to fully provide the Court with their views. The TPO, by statutory design,
is ex parte, and allows for the issuance after ex parte questioning of only the party seek-
ing the TPO. MD Code FL §4-505.
8
means to quickly address any defects he/she believes exists with a TPO at the FPO
hearing, which is set by the court to be within seven days of the TPO’s issue. The limit
on premature termination of the TPO protects victims from the disruption attendant to
having to respond to motions to quash TPOs during the very period in which they are
seeking refuge from the abuse and preparing to meet their heavy burden of securing more
permanent protection through a FPO – which is outlined in the TPO itself. In short, the
General Assembly did not include procedures for prematurely quashing TPOs among the
statutory protections afforded to respondents, choosing instead one of the shortest TPO
To be sure, it may be the “rare” case where “the average batterer or abuser is . . .
going to be able to show up with proof that the TPO was obtained by fraud.” Appellee
Br. at 21. But that will not prevent abusers from bringing any number of motions to
was done here. See Amici Br. at 19. And Appellee’s concession that instances where
alleged abusers can offer proof of fraud will be “rare” only confirms that the
case, no reasonable reading of the full transcript of June 2, 2008 TPO hearing, along with
the application for TPO, arguably supports the Appellee’s claim that there was “extrinsic
fraud.” Appellant answered all questions posed by Judge Boynton, as best as one would
9
As noted above, that Appellee saw the need to flood this court with a multihundred page
appendix filled with documents that were not before the trial court below in order to
9
2. The Text of Md Code FL §4-507 of the Domestic Violence
Statute Does Not Permit Motions to Prematurely Quash TPOs
court to modify or rescind a “protective order” before the order expires, that necessarily
applies to temporary protective orders. Appellee Br. at 33-35. The General Assembly
included no general definition of “protective order” that applies to all provisions of the
DV Statute, see Md. Code FL §4-501, and thus the term “protective order” in Section 4-
507(a)(1) should be interpreted in accordance with its longstanding meaning and in a way
In this regard, Appellee does not dispute that when the General Assembly enacted
MD Code FL §4-507(a)(1) in 1992, the section applied only to FPOs. At that time,
throughout the DV Statute, a “protective order” was synonymous with what is now called
a “final protective order.” See Amici Br. at 11-13. Nor does Appellee contest that the
General Assembly did not change Section 4-507(a)(1)’s application when in 2002 it
protective orders,”10 and that other provisions of MD Code FL §4-507 that refer to
“protective orders” make sense only if applied to FPOs, not TPOs. Id. at 13. And
Appellee nowhere disputes that there are no judicial decisions applying MD Code §4-
rationalize what occurred below; further driving home that a premature quashing of a
TPO by an ex parte unscheduled hearing is not proper.
10
Appellee incorrectly states that the term “temporary protective order” was first
used in the DV Statutes in 1992. Appellee Br. at 33. From 1992 until 2002, however, the
term “protective order” in the DV Statutes referred only to what is now called a “final
protective order,” while what is now called a “temporary protective order” was called a
“temporary ex parte order.” Amici Br. at 12-13.
10
Citing Torboli v. Torboli, 365 Md. 52, 63, 775 A.2d 1207 (2001), however,
Appellee argues that the Court should ignore the longstanding interpretation of
“protective order” in MD Code FL §4-507 because this Court purportedly has already
found “the language of Section 4-507 to be clear and unambiguous.” Appellee Br. at 34.
But Torboli was not addressing the application of Section 4-507 to TPOs. To the
contrary, Torboli held that the statute was “clear” that a FPO could be modified only:
“by the court that issued it, during the term of the order and after notice and a
hearing before the expiration of the order.”
“protective order” was synonymous with what is now called a “final protective order.”
Amici Br. at 12-13. Given that FPOs ran for typically for a year, the provision made
sense for them. Torboli also recognized that only the court that issued the “protective
order” was in a position to modify it – a requirement that was not followed below.11
protective order issued under §4-505 of this subtitle.” But that provision does not
expand the settled meaning of MD Code FL §4-507(a)(1) for the first time to apply to
TPOs it would have done so explicitly. At a minimum, it would not have departed from
11
In any case, the Duty Judge Craven below deviated from Torboli’s requirement that the
modification be done “by the court that issued it.” i.e, Judge Boynton’s court.
11
the long-held interpretation of 4-507(a)(1) through an oblique reference in a provision
“final protective orders” (4-501(h)), it declined to add a definition of the more general
“protective order” that applied to all provisions of the DV Statutes. See, 2002 Md. Laws
Ch. 235. Further, concurrent with these changes, the Legislature also added explicit
references to “temporary protective orders” throughout the DV Statutes, see Id., yet it
The Court should thus construe MD Code FL §4-507(a)(1) – consistent with its
longstanding meaning and the text, structure, history, and purpose of the DV Statutes – as
applicable to only FPOs. Any other interpretation would have devastating consequences
to domestic-abuse victims, see Amici Br. at 16-20, which cannot have been the intent of
the General Assembly. The legislature did provide a mechanism for modifying a
TPO, it is the Court-scheduled and Court-noticed FPO – along with the necessary
Assuming arguendo that the MD Code FL §4-507 applied to TPOs, the Appellee’s
argument must still fail. As noted above, Torboli held that the statute was “clear” that a
12
FPO could be modified only: “by the court that issued it, during the term of the order
and after notice and a hearing.” (emphasis added) Torboli, 365 Md. at 63 (2001).
Certainly the “notice” required could be expected to be no less than the notice for
the FPO, which the statute requires to have at least the following elements:
In sum, even if one accepts, arguendo that MD Code FL §4-507 applies to TPOs
12
The “Opposition” that Appellee points to in his brief, Appellee Br. at 30 was NOT
personally filed or served by Appellant (see service certificate), and does not evidence
any knowledge of when any upcoming hearing was to occur, other than the court-
scheduled June 9, 2008 FPO Hearing. Thus the existence of that Opposition does not
demonstrate in any way that Appellant knew that there was to be a bona fide hearing nor
that she had notice that an evidentiary hearing was to be held on June 5, 2008, with
witnesses, nor does it evidence that she was available for any unilaterally called hearing.
13
II. Appellee Provides No Valid Support for His Proposition That a TPO
Cannot Issue to Protect a Child and Her mother Against Abuse in Maryland If
a Custody Case Is Pending in Another State Where No Party Was Living.
The Appellee relies upon extensive repetitive and/or outside-the-record materials
(over 170 pages of the Appellee’s 249 pages “Appendix”) in a desperate attempt to prove
Appellant “failed to disclose” to Judge Boynton when he issued the TPO on June 2, 2008,
somehow invalidating that TPO. Appellee Br. at 14. A careful reading of the transcript
of the June 2, 2008 hearing before Judge Boynton clearly shows that all questions were
answered as best a layman who is pro se could be expected to answer them, and, more
importantly, that Judge Boynton was satisfied with those answers. Appellee’s Brief
repeats his counsel’s false proffers to Duty Judge Craven that TPO Judge Boynton was
not made aware of the Virginia custody proceedings. The record shows otherwise:
14
call it, and lack of continuing jurisdiction [through a then-pending Petition for
Writ of Mandamus to the Virginia Supreme Court]. I've lived back in Montgomery
County since October 15th.
Q All right.
A And I've lived here before that.
Q So you live in Montgomery County, he lives in D.C., why is he filing in Virgin-
ia?
A We don't know, sir. Oh, I was there, I'm sorry. I was there for 29 days, I needed
temporary emergency housing.
Q Right.
A I couldn't find any here so I found housing in Arlington, Virginia. And at the
time, before he filed, he was working with a lawyer to do a parenting agreement or
something.
Q To do what?
A A parenting agreement.
Q Okay.
A He went out to do a parenting agreement and said that he would have that, but
while I was waiting for that, I mean, literally, I mean, literally while I was waiting
for that, he filed in Virginia. I was there for 29 days.
Q Well, I guess my, I understand the whole, the history of what's happened here.
A Yes, I'm just trying to tell you everything as truthfully as I can.
Q And that's fine. But this is a particular petition that has limited use. The purpose
of this is to protect against domestic violence and child abuse which is ongoing.
A Yes, sir.
Q That's happening now.
A Yes, sir.
Q Not a year and a half --
A That's right, sir, that's right.
-- See, June 2, 2008 Tx at 9-12, E/App. – 27 – 30.
other state does not prevent the issuance of a TPO in Maryland for protection of those
within Maryland’s borders. Appellee cites no case law to support his illogical view that a
custody proceeding in another state requires that a DV victim in Maryland travel to that
state outside of Maryland in order to obtain TPO protection in Maryland. Given that a
custody proceeding in another state could not pre-empt a TPO from being issued to
domestic violence victims who are located – including living or attending school – within
15
Maryland’s borders, it follows that each excruciating detail of an out-of-state custody
proceeding would not be relevant to the issuance of a Maryland TPO. If one of the
parties believes that some key element of such an out-of-state custody case is relevant,
they may raise it at the court-scheduled FPO Hearing, where competent counsel can
argue with supporting facts on both sides of that issue. However, Appellee identifies
nothing relevant and material that Appellant omitted from her testimony that could have
(GAL) – who has a limited role of representing the “best interests” in a Virginia custody
proceeding – is essential to a TPO proceeding in Maryland for the mother and her child.
Appellee’s Brief at 33. In fact, the Virginia courts have ruled that GALs are not “neces-
sary or indispensible” parties to Virginia custody cases to which they are assigned.
Yopp v. Hodges, 598 S.E.2d 760, 43 Va.App. 427 (Va. App. 2004). In addition, if Judge
Boynton felt that a GAL was needed in the Maryland TPO proceeding, Judge Boynton
had the power to assign a Maryland-licensed GAL to the child – but he did not.
III. The Appellee Misapplies Many Legal Concepts and Facts, Often
Misrepresenting Them
Appellee’s Brief presents very inaccurate and misleading treatment of legal con-
cepts and facts before this court. For example, Appellee self-servingly mischaracterizes
the February 21, 2008 Virginia custody order, which specifies visitation and custody for
both parents, as providing “limiting access” to only the Appellant. See, Appellee’s Brief
16
at footnote 1.13 To the contrary, the February 2008 custody order divided the child’s time
between both parties – with the mother having most weekends, along with Wednesdays
and Thursdays of each week, while the father had the remaining time. See, February 21,
Appellee further promotes a novel theory that the June 6, 2008 custody order –
“protective order.” See, June 6, 2008 Virginia “Final” Custody Order, found at E/App.-
87; also, Appellee’s Brief at 11. Appellee cites MD Code FL §4-508.1(a)(1), but ignores
being recognized as “protective orders.” (MD Code FL §4-408.1(a)(2) "Order for pro-
tection" does not include a support or child custody order”). Thus, despite Appellee’s
attempts to convince this court otherwise, the out-of-state Virginia custody orders are not
subject to the automatic recognition of a “protective order” but must be shown to meet
17
Appellee states that it “admits” that “with permission of the court noticed the
hearing for 11:00 a.m., Thursday on June 5. 2008.” Appellee’s Br. at 17. Appellee
presents no facts to support this claim, and can point to no entry in the docket showing
such “permission” being granted, nor any other notice being issued by the court below for
a false impression with this court. As noted in Appellant’s Brief, the June 5, 2008 hear-
ing was not set by the circuit court, nor docketed in advance, nor was the Montgomery
County clerk’s office or even Judge Craven’s chambers aware as late as that very morn-
ing that a hearing was to take place on June 5, 2008. See, Appellant’s Brief at 15.
Appellee also falsely claims that Appellant was “in the same building” as the
Court on the morning of June 5, 2008. Appellee’s Br. at 25. However, the testimony of
Ms. Catron, who testified at the June 5, 2008 hearing, clearly indicated otherwise. Ms.
Catron testified that she saw Appellant the morning of June 5, 2008, and Ms. Catron
further testified that she had been at the Treehouse Child Assessment Center for Mont-
gomery County. June 5, 2008 Tx. At 11, found at E/App.-73. The Montgomery County
Finally, although not relevant to the merits of Appellant’s case here, Appellee
extensively misuses the UCCJEA term “home state,” without regard to its statutory
meaning – claiming Virginia to have been the child’s “home state.” Appellee’s Br. at 18.
18
Appellee’s confuses “home state” with “custody jurisdiction.” In order for any state to
have been the child’s home state, the child had to live in that state for six months. MD
Code FL §9.5-101(h). Appellee does not cite any case that specifically found Virginia to
be the child’s “home state,” including the March 14, 2008 opinion of Maryland Circuit
Court Judge Algeo. 14 This is not surprising because at no time did the child live in
Virginia for the required minimum of six months required by the UCCJEA “home state”
definition. On the other hand, Maryland had met the criteria for being the child’s “home
state,” as the child had lived there most recently lived for that long. “Home state” is only
one of four possible bases for a state to take custody jurisdiction. MD Code FL § 9.5-201
(When court has jurisdiction). Just because Virginia may have asserted child custody
jurisdiction does not mean that Virginia was found to be the child’s “home state.”
IV. There Was No Urgent Need to Rush to Quash the TPO; Duty Judge
Craven Did Not Find the Mother to Be A Threat to the Child
The pressing question that Appellee fails to answer is “Why couldn’t Duty Judge
Craven simply defer the Appellee’s Motion to Quash to the court-scheduled and properly
noticed FPO hearing two business days later?” Appellee gives two flawed reasons.
First, Appellee argues that there was a previously scheduled hearing in the custody
proceeding in Virginia on an unrelated matter for June 6, 2008, and this somehow re-
quired the quashing of the Maryland TPO for protections of both the mother and the
14
Judge Algeo’s ruling at his hearing on March 14, 2008 specifically stated that he was
dismissing Appellant’s divorce and custody case in Maryland because Virginia had,
asserted child custody jurisdiction, and he said he did not want to have “dueling
jurisdictions on issues of divorce and custody.” King v Pfeiffer, Case No. 56890, March
14, 2008 Transcript at 14.
19
child. This argument holds no water because Appellee fails to explain how this Mary-
land TPO issued to protect both a child and her mother in Maryland necessarily interfered
with any alleged hearing in a custody proceeding in Virginia – assuming one had been
properly scheduled and noticed. As noted above, Judge Boynton was fully aware that
there was an ongoing proceeding in Virginia for custody. See, June 2, 2008 Tx at 9-12,
E/App. – 27 – 30. Appropriately, Judge Boynton did not see any conflicts with his entry
of a TPO for both the mother and the child and the Virginia custody proceeding. If there
were concerns of conflict, the proper action under the UCCJEA was a conference with
the Virginia Court to assure proper uninterrupted protections and investigation for Judge
Boynton’s concerns for sexual and physical abuse by the father involving a child in
Maryland. (MD Code FL §9.5-109) The unilateral lifting of a TPO in Maryland is not –
by any measure – the proper remedy. The unilateral lifting of the TPO in Maryland
created a vacuum offering no protections to address the concerns of TPO Judge Boynton
– namely abuse by the Appellee, Mr. Pfeiffer. Duty Judge Craven gave no explanation
of why he could not have left the TPO in place until the court-scheduled, and properly-
The second flawed reason Appellee gives for the need to have the TPO quashed
before the FPO hearing on June 9, 2008 is the Appellee’s baseless contention child was
“in danger.” Appellee Br. at 8 and 17-19. If Duty Judge Craven believed the child was
in danger by being left with the mother (Appellant), then the proper emergency remedy
was to issue an immediate removal order for the child – not to quash the TPO. Neither
the father, his attorney, nor even the CPS asked the Duty Judge Craven to issue such an
20
immediate removal order. Because the Virginia custody order filled any vacuum created
by the quashing of the TPO on June 5, 2008, Duty Judge Craven’s actions left the child
with her mother (Appellant) for the remainder of that Thursday, June 5, 2008 (and, under
the pre-existing temporary custody order of Virginia, Apx. 162, also for the following
weekend starting that Friday after school). Thus, the lifting of the TPO did nothing to
“protect the child” from any alleged concerns that the Appellee had with regard to Appel-
lant. Duty Judge Craven expressed no alarm or concern for the safety of the child in
being with her mother (Appellant). The “safety of the child” does not justify Duty Judge
Duty Judge Craven’s entire “reasoning” for vacating the TPO is clearly erroneous:
"I find she knows about this, has chosen not to be here and there is reason to be-
lieve that the testimony given to Judge Boynton a few days ago is false."
Duty Judge Craven ignored the defects in the hearing’s notice, inconsistencies of
the holding of the June 5, 2008 hearing with the TPO’s instructions that indicated the
only other hearing was to be June 9, 2008, had not referred the case back to TPO Judge
Boynton to determine what he had actually heard at the June 2, 2008 TPO hearing (which
turns out not to have been false), had not read the TPO hearing transcript but expressed
an opinion based on clearly false proffers from Appellee’s counsel regarding the June 2,
2008 hearing, and did not, as a Duty Judge, have the authority to dispose of such matters.
21
MD Crt. Rule §16-102 (Duties of the Chambers Judge); see also Torboli.
The three bases for vacating Duty Judge Craven’s June 5, 2008 decision vacating
the June 2, 2008 TPO are: “mistake,” “fraud,” and “irregularity.” MD Rule §2-535
Mistake
As Appellee notes (Appellee Br. at 31), “mistake” occurs when a Judge does
something for which it does not have the power. Autobahn Motors v. Baltimore, 321 Md.
558 at 562, 583 A.2d 731 at 733 (Md. App. 1989); Tandra S. v. Tyrone W, 336 Md. 303,
317, 648 A.2d 439, 445 (Md. App. 1994). As noted above, under MD Crt. Rule §16-102
(Duties of the Chambers Judge) and Torboli, Duty Judge Craven did not have the power
to prematurely quash the TPO issued by Judge Boynton. In addition, even under MD
Code FL §4-507, there was mistake by holding a hearing with inadequate notice and
Extrinsic Fraud
Fraud is extrinsic when "it actually prevents an adversarial trial..." Manigan v.
Burson, 862 A.2d 1037, 160 Md. App. 114, 120-121 (Md.Sp.App. 2004) (quoting
Billingsley v. Lawson, 43 Md. APP 713, 719, 406 A.2d 946, 951 (Md. Ct App. 1979).
Appellee never explains how pro se Appellant was to obtain counsel on such short notice
due to Appellee’s failure to provide proper and adequate notice to his June 5, 2008 ad
hoc, ex parte hearing, nor how she was supposed to have adequate time to prepare any
counsel never fully explains why he proffered false claims about the June 2, 2008 TPO
22
testimony, causing Duty Judge Craven to grant his motion based on those false represen-
tations. Appellee’s rush to have a flawed hearing assured no opportunity to obtain, and
read and/or hear a transcript of what was actually stated at the hearing before Judge
Boynton on June 2, 2008, denying the Court an alternative to his false proffers. His rush
also assured that the CPS/DSS investigation for abuse and neglect would not be complet-
ed, including an interview of Appellee that was scheduled for the afternoon of June 5,
2008 – which, because of the rushed hearing, was prevented from taking place. Of
course, in the totality, Appellee prevented Appellant from her fair adversarial FPO
Irregularity
This Court has defined “irregularity” in Weitz v. MacKenzie, 273 Md. 628, 630-31,
Under our cases, an irregularity which will permit a court to exercise revisory
powers over an enrolled judgment has been consistently defined as the doing or
not doing of that, in the conduct of a suit at law, which, conformable to the prac-
tice of the court, ought or ought not be done [citations omitted.]
It has been held that the types of irregularities contemplated by MD Rule §2-535
are: the dismissal of a case without giving notice as required by the Maryland Rules,
Mutual Benefit Society of Baltimore, Inc. v. Haywood, 257 Md. 538, 263 A.2d 868
(1970), and the failure of a clerk to send the required notice upon the entry of a default
judgment, Maryland Lumber v. Savoy, 286 Md. 98, 405 A.2d 741 (1979).
Such irregularities existed below. Appellee Brief does not dispute that Duty Judge
Craven quashed a properly issued TPO based solely on his claim that testimony of June
23
2, 2008 was “false” even though he had neither heard nor read its contents. Appellee
Brief also does not dispute that Duty Judge Craven did not provide any notice for the
hearing of June 5, 2008. Appellee Brief does not dispute that Duty Judge Craven’s
hearing on Appellee’s Motion to Quash the TPO issued by TPO Judge Boynton was not
provided for by the TPO. Appellee Brief does not demonstrate how the Virginia custody
proceeding had any true bearing on whether a TPO could be validly issue for Appellant,
as well as for her daughter in Maryland. Appellee Brief does not credibly dispute that
Duty Judge Craven allowed unauthorized testimony by Ms. Catron and Ms. Hoffman
of CPS/DSS about an ongoing child abuse investigation in open court before a public
audience, in violation the law. Contrary to Appellee Br. at 26, disclosures in a public
Abuse of Discretion
On
June
5,
2008,
Duty
Judge
Craven
did
not
know
the
contents
of
nor
had
he
heard Appellant’s June 2, 2008 testimony to TPO Judge Boynton. Judge Craven
abused his discretion when he held the June 5, 2008 hearing and ruled to vacate
TPO Judge Boynton’s decision based the alleged truthfulness of the June 2, 2008
testimony that Duty Judge Craven had not reviewed or heard. Duty Judge Craven
further abused his discretion by later failing to vacate his June 5, 2008 decision in
light of the obvious mistake, fraud, and irregularity. Duty Judge Craven’s decisions
24
CONCLUSION
Despite Appellee’s attempts to remove focus from it, the primary cert issue re-
mains whether a TPO issued to protect a pro se Appellant (mother) and her then five year
old daughter, along with the abuse investigation initiated by that TPO, can be premature-
a Duty Judge during the “most vulnerable time” between the issuance of the TPO and the
only court-scheduled Full Protective Order Hearing (FPO) that was noticed in that TPO.
If allowed to stand, the case below opens up the proverbial Pandora’s box. The
case below invites alleged abusers to rush into court and appear before a duty judge who
is unfamiliar with the facts of the case –including the testimony underlying the original
grant of the TPO – seeking to vacate a TPO along with its protections and any investiga-
For the reasons set forth in the Amici Brief, and Appellant’s Brief and this Reply,
the Court is respectfully requested to vacate the decision below, even if moot per Coburn
v. Coburn, 674 A.2d 951 (1996), and provide explicit guidance that a TPO may not be
Respectfully submitted,
Paul G. Griffin
1875 Connecticut Ave., N.W. Ste. 710
Washington, D.C. 20009
(301) 254-2745, [email protected]
Roy Morris
PO Box 100212
Arlington, Virginia 22210
(202) 657 5793, [email protected]
Counsel for Petitioner-Appellant Font: Times New Roman, 13 pt,
25
CERTIFICATE OF SERVICE
I hereby certify that on this 21nd day of April, 2011, I caused to be sent two copies
of the forgoing Brief, by first class mail, postage prepaid, to: Sean O'Connell, 4113
Lee Highway, Arlington, VA 22207, and Cameron W. Arnold, ARNOLD & POR-
TER LLP, 399 Park Avenue, New York, N.Y. 10022.
__________________
Roy Morris