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In our last blog post about pendente lite hearings in Maryland, we talked about the process of determining how interim issues, such as child custody, child support, and alimony, are handled by the Maryland courts pending the final resolution of a divorce. Following the pendente lite hearing, the Circuit Court magistrate who presided over the hearing will issue a “report and recommendation” regarding those specific issues. (In rare circumstances, it will be the judge, not the magistrate, who presides over this initial hearing and the judge will, instead, issue a ruling.)

In this post, we will discuss the magistrate report and recommendations (“recommendations”), and what to do if you disagree with those findings.

Understanding the Magistrate’s Recommendations

The magistrate may make oral recommendations on the record at the conclusion of a pendente lite hearing. If the magistrate does not make recommendations on the record, he or she must provide those recommendations in writing to the parties within ten (10) days of the hearing. In addition, the magistrate then submits a copy of the recommendations and proposed orders to a Circuit Court judge in the case.

The recommendations are then verified and signed by the judge, which renders them as a binding court order upon the parties. However, even in the interim period between submission of recommendations to the judge and signing of the recommendations, you should generally plan to abide by their terms regarding child custody, access, support, and any other issues. For instance, if the recommendations give your spouse residential custody of your child along with an amount of child support to be paid each month, and recommends a specific visitation and access schedule for you, you should follow those recommendations – unless you disagree with the recommendations and plan to lodge a formal objection in the court record.

What Do I Do if I Disagree With the Magistrate’s Recommendations?

As in many family law disputes, one party (if not both) may be dissatisfied with the outcome of a pendente lite hearing. Do you have any recourse if you object to the magistrate’s report and recommendations? Yes; you can appeal these recommendations. The process for doing so is called “filing exceptions.”

Understand that, like other appeals, you cannot file exceptions simply because you do not like the result the court reached. You must have a legal basis for your objection to the magistrate’s recommendations, such as that the magistrate incorrectly applied the law to the facts of your situation. An experienced family law attorney can help you determine if you have a legal basis to file exceptions.

Filing Exceptions to a Magistrate’s Report and Recommendations

Under Maryland law, either party may file exceptions to a magistrate’s report and recommendations. Exceptions must be in writing, and must describe the specific legal error that that party believes the magistrate committed in arriving at their recommendation. A Circuit Court judge will review the exceptions, using the transcript of the pendente lite hearing, reviewing the evidence that was provided during the pendente lite hearing, reviewing documents relating to the exceptions as filed by both parties and, on some occasions, an additional hearing. If you are the party filing the exceptions, you will also be responsible for ordering and paying for this transcript and providing to the court and the opposing party. The longer the hearing was in duration, and the more testimony that was taken, the more costly the transcript will be.

You will also need to file a certificate of compliance showing that you ordered the transcript and submitted it for the court’s review, as well as making a copy available to the other party. In some circumstances, you may be able to request that the court accept an electronic recording of the hearing instead of a transcript, or may be able to ask the court to certify that it does not need a transcript to rule on the exception.

How Does the Court Decide on Exceptions to a Magistrate’s Recommendations?

You can request a court hearing on the exceptions at the time you file them. If it is the other party who files exceptions, you can file a request for a hearing within ten (10) days of being served with your copy of the other party’s exceptions. The decision whether to grant a hearing is within the judge’s discretion. If the judge agrees to hold a hearing, both sides and their attorneys will be notified of the hearing date and time.

Be aware that a hearing on exceptions is not an opportunity to introduce new evidence or litigate new issues that have arisen. It is narrowly focused on the question of whether the magistrate committed a significant legal error during the pendente lite hearing.

Often, the court will make a ruling on the exceptions without the need for a hearing. If you successfully allege in your filed exceptions that the magistrate committed reversible legal error, the judge may set the magistrate’s recommendations aside and replace the findings with his or her own. Sometimes, the judge will point out the error to everyone and order the parties, and the magistrate, to come back to court and have another hearing so the “error” can be corrected. Sometimes, an error will be corrected during this re-hearing, but it will lead to the exact same recommendations made from the magistrate the first time.

Because exceptions are based on legal error, it is difficult to craft a successful argument for your position without the help of an experienced Maryland family law attorney. If you are filing for divorce and seeking pendente lite relief, or if you need to file exceptions to a magistrate’s recommendations, contact Strickler, Platnick & Hatfield to schedule a consultation to discuss your options.

Categories: Divorce, Legal Process