UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0719 September Term, 2014 STEPHEN D. CHAMBERLAIN v. JUDITH C. CHAMBERLAIN Wright, Reed, Alpert, Paul E, (Retired, Specially Assigned), uy, Opinion by Wright, J. | Filed: April 21, 2015Appellant, Stephen Chamberlain (“Father”), and appellee, Judith Chamberlain (“Mother”), were granted a divorce in 2009 by the Circuit Court for Anne Arundel County. As a part of the divorce proceedings, the parties entered into a Marital Separation ‘Agreement (“Agreement”) that, among other things, contained provisions related to the responsibilities of each party to pay for the college education for their children, including their youngest child, John. As John began the college selection process, there was a disagreement between the parties as to which schools would be acceptable. This disagreement led to litigation that ultimately concluded with the parties orally agreeing on a payment scheme later contained in a consent order. In this appeal, Father challenges the consent order. Question(s) Presented Father asks this Court to consider the following questions:! 1. Did the circuit court have jurisdiction to hear this case? 2. Did the circuit court properly deny Father's motion for a mistrial? 3. Did the circuit court properly enter the consent order? We have reworded the questions presented by Father in his brief: 1. Did the Circuit Court have jurisdiction to try a case for which there was no live controversy? Is the oral agreement made on the record on April 18, 2014 voidable due to duress, undue influence, the lack of essential terms, and modification by the trial judge?? (sic] 3. Was it an abuse of discretion for the trial judge to sign a Consent Order 3 weeks after he was aware one party did not give his assent to the agreement?‘We answer yes to all three questions and affirm the cireuit court’s judgment. Facts Father and Mother were married for21 years when they were divorced in May 2009. In the months leading up to the divorce, the parties entered into the Agreement. The Agreement contained a provision, Paragraph 8, stating that the parties, along with their child, would form a consensus before applying to, or enrolling in, any college or university: “{Father| shall pay the costs of tuition, room and board, books, registration fees, and reasonable application fees incident to providing each Child with an undergraduate college education for four consecutive years of college. The selection of which college or university cach Child shall attend shall be made by [Father], [Mother] and the Child, prior to application and prior to enrollment.” The Agreement covered the parties’ three children. The two older children completed college without any apparent dispute over the provision in the Agreement, The issues in this case stem from the college selection process of the third child, John, Through June and July 2013, Father, Mother, and John exchanged several e-mails regarding potential schools for John, without apparent resolution, and this litigation ensued. Mother requested a hearing to allow John to apply to colleges, beyond those to which Father agreed, in order to determine the possibilities of scholarships and to celculate ihe overall cost. Prior to the heating, it was discovered that John had already applied to colleges without Father's consent. Mother then filed a motion suggesting that the issue was moot. Father responded to that motion agreeing on the issue of mootness but requesting that his attorney's fees be paid by Mother. 2A hearing was scheduled for April 18, 2014. At the start of the hearing, it was revealed that Mother had withdrawn her motion regarding the issue of mootness. Father then challenged the extent of the proceeding since both sides had earlier agreed that the primary issue was moot, however, the circuit court accepted Mother's withdrawal of her motion and began the hearing. After the presentation of some evidence, the court requested the attorneys” presence in chambers telling the parties, “Maybe we can save a little time.” Following this recess for time in chambers, the parties came to a mutual agreement regarding the payment of John’s college expenses. The court instructed Father’s counsel, Mr. Schaeffer, to voir dire Father: MR. SCHAEFFER: ... . Could you please stand up, Mr. Chamberlain? Mr. Chamberlain, you've heard my recitation of the terms of settlement today, you're not under the influence of any alcohol or drugs or anything that might affect you anything that might affect your reasonable judgment, correct? [FATHER]: No. MR. SCHAEFFER: Can you confirm to the Court that you have heard and understand the terms of the agreement? [FATHER]: Yes. MR. SCHAEFFER: And can you confirm to that you want the Court to incorporate the terms of the agreement into a consent order that will be enforceable by the Court in the event of a breach by either of you? [FATHER]: Yes. MR. SCHAEFFER: Do you believe the terms under the circumstances, to be fair and reasonable? [FATHER]:MR. SCHAEFFER: Do you have any questions for me regarding the terms and conditions at this time? [FATHER]: No. MR. SCHAEFFER; And have you been generally satisfied with my services as you counsel throughout these proceedings? [FATHER]: Yes, sir. MR. SCHAEFFER: Okay. Thank you, Your Honor. THE COURT: He's entering into the consent order freely and voluntarily and after being properly advised of his rights. Following voir dire of Father, Mother and John were similarly examined and found, by the court, to be freely entering into a payment scheme. The general terms of the payment scheme were announced in open court and placed on the record. ? Several weeks after the April 18, 2014 hearing, but before the consent order was signed, Father filed a motion seeking to have a mistrial declared. Father argued that the citeuit court lacked jurisdiction and that his acquiescence to terms of the payment scheme were made under duress and were, therefore, void. On June 5, 2014, the court denied Father's motion and signed the consent order. This timely appeal followed. Standard of Review Generally, consent orders are not appealable. The Court of Appeals explained, “[t]he rule that there is no right to appeal from a consent decree is a subsct of the broader 2 The payment scheme was that: Father would pay up to $14,000.00 per year towards John’s college obligations as set forth in the Agreement. Payment would be made to John upon a reasonable time after Father received the invoice ftom the school. 4principles underlying the right to appeal. ‘The availability of appeal is limited to parties who are aggrieved by the final judgment. A party cannot be aggrieved by a judgment to which he or she acquiesced.” Suter v, Stuckey, 402 Md. 211, 224 (2007) (internal citations omitted). But, “[i]f there was no actual consent because the judgment was coerced, exceeded the scope of consent, or was not within the jurisdiction of the court, or for any other reason consent was not effective, an appeal will be entertained.” Id. at 224 n.10 (citations omitted). Md. Rule 8-131(a) provides for the scope of appellate review of jurisdictional questions. In Himes Associates, Lud. v. Anderson, 178 Md. App. 504, 526 (2009), this Court, “read Rule 8-131(a) to permit appellate review of the issue] of . . . subject matter jurisdiction on the entire record.” This Court went on to state that, with respect to jurisdictional issues, “[o]ur standard of review is de novo: we decide ‘whether the trial court was legally correct[.}” Jd. (citation omitted). With respect to the circuit court’s decision on a mistrial, we apply an abuse of discretion standard. “The decision to grant a motion for a mistrial is a matter within the discretion of the trial judge. A denial of a motion for mistrial will only be reversed on appeal when there was clear prejudice to the defendant,” Alston v, State, 177 Md. App. 1, 6 (2007) (internal citations omitted).Discussion 1 Circuit Court’s Jurisdiction Father initially challenges the validity of the circuit court's issuance of the consent order due to a lack of subject matter jurisdiction. Specifically, Father argues that the issue of whether his consent was required to apply to certain colleges was moot and cites Mother’s motion for voluntary dismissal where she too noted that the issue was moot} “A case is moot when there is no longer an existing controversy between the parties at the time it is before the court so that the court cannot provide an effective remedy. Generally, a moot case is dismissed[.]” Coburn v. Coburn, 342 Ma. 244, 250 (1996) (internal citations omitted), Based on the record, both parties filed motions contending that the initial issue was moot; however, Mother withdrew thet contention at the hearing, Regardless, mootness is a legal determination -- a case is moot based on the facts, not the motions of the parties. In this case, the circuit court determined that there was a controversy upon which the court could provide an effective remedy. Notwithstanding John’s unauthorized applications, the issue of whether Father’s consent would be required in order to pay for college was a lingering outstanding controversy. In fact, the exact provisions of the agreement, upon which the application issue was based, also concemed the issue of the future payment of college expenses. The circuit court’s contractual interpretation of the provision would, 3 Mother initially asked the circuit court to interpret the terms of the Agreement to allow John to apply to colleges of his choice without Father’s consent. John applied prior to the court’s ruling, thus eliminating the need for the court to rule on whether Father's permission was required at the application stage. 6thus, have provided an effective remedy to the question of the degree of involvement cach party must have in the final college decision and any subsequent tuition responsibilities. Since there was a live controversy upon which the court could render an effective remedy, the case was not moot, and the court had subject matter jurisdiction. I. — Motion for Mistrial Father next challenges the circuit court’s refusal to grant a mistrial. Father contends now, as he did in a May 15, 2014 motion considered by the court, that his agreement to the payment scheme on April 18, 2014, was voidable because it was made under duress, and that he was subject to undue influence. The court denied Father’s motion without explanation! As to Father’s contention, this Court defers as to the factual findings of the circuit court because it is the pres ing judge that often has the best perspective on the issue. See Jackson v. State, 164 Md. App. 679, 713 (2005) (“Because so much depends on the inherent ‘sense’ of justice of the trial judge, the only judicial figure who has his thumb on the actual pulse of the trial, the judge’s exercise of discretion in evaluating credibility is indispensable.”). This is particularly true in this case. In his brief, Father avers that an audio recording of his acquiescence to the payment scheme shows that his answer “was made in an overtly distresses [sic] tone.” This argument is contrary to the circuit court’s + The fact that the court did not articulate its reasoning, does not provide a basis for error. Marquis v. Marguis, 175 Md. App. 734, 755 (2007) (We presume judges know the law and apply it “even in the absence of a... . indication of having considered it.”) (Citation omitted).finding of fact moments thereafter that Father was agreeing to the terms “feely and voluntarily and after being properly advised of his rights.” Having presided over the proceeding during voir dire, the circuit court was in the best position to evaluate whether the parties were under duress. Based on our review of the entire record in this case,’ the cirenit court's ruling that the payment scheme was entered into freely was not clearly erroneous. Father also contends that the agreement to the payment scheme was voidable because it lacked consideration. In his brief, Father argues that “[fJorbearance to assert a claim which proves to be invalid is not consideration . . .. No reasonable person could believe the withdrawal of vexatious lawsuit .. . could be valid ‘consideration.”” However, Maryland courts have held that “[cJonsideration is not always tangible. In the case of a consent judgment, the fact that ‘the parties give up any meritorious claims or defenses they may have had in order to avoid further litigation’ may serve as consideration.” Suter, 402 Md. at 225 (citation omitted). In this case, Mother and son, John, abandoned any chance to have Father exclusively fund John’s college education in an effort to end the litigation. 5 The record contains an ex parte letter, drafted by Father and sent to the cireuit court, regarding Father’s desire to move forward with the consent order as a pro se party. In this letter, Father does not claim that the agreement to the payment scheme is voidable due to duress or other factors. Rather, Father writes “I was placed in a position where a negotiated settlement to the matter occurred. The agreement to the payment scheme was made verbally before the Court, and it should be a simple matter to draft a Consent Order{.]” He goes on to describe his conduct in the proceedings as “fair, reasonable, and cooperative[.|” While not part of the docketed record, this letter further supports the court’s | finding that there was no duress at the time of the agreement to the payment scheme. | 8Father’s obligation was limited to only $14,000.00 per year. This type of consideration is precisely, what is described by the Court in Suter. TIE Consent Order Finally, Father argues that the circuit court erred in entering the consent order despite being aware of one party’s objection. To support his position, Father cites Dorsey v. Wroten, 35 Md. App. 359 (1977), where this Court reversed the circuit court’s refusal to allow one party to withdraw consent to an oral agreement prior to the judge enrolling the consent order. However, there is a critical distinction between Dorsey and the instant case. Here, Father's agreement to the terms of the consent order was made on the record, in open court, while in Dorsey, the appellant withdrew his oral consent to the settlement agreement before the final meeting with the trial judge, and both the trial judge and appellee had full knowledge that appellant was not consenting to the decree two days before it was signed. In Barnes v, Barnes, 181 Md, App. 390, 408 (2008), this Court examined the facts of Dorsey: “[iJn Dorsey, the Court determined that an agreement entered on the record in open court is distinet from a settlement agreement that is not entered on the record, There, the parties held ‘a “settlement type conference” in the judge’s chambers’ and, when they reached an agreement, the judge ‘requested that a consent decree be prepared and presented to him.” (Citation omitted). Critical to this case, however, “when, as here, ‘the parties entered into an agreement in open court, which under Maryland law is binding upon the parties," intending that the court will subsequently reduce the agreement to a written order, the legal principles regarding consent orders are ‘equally applicable’ to the resulting order.” Id. at 409 (citation omitted). Specifically, the Court of Appeals has held, “[t]he fact that 9one of the parties may have changed his or her mind shortly before or shortly after the suby d consent order was signed by the court does not invalidate the signed consent judgment.” Chernick v. Chernick, 327 Md. 470, 484 (1992). It is pellucid that, based on the most relevant case law, the circuit court properly entered the Order despite Father's | post-agreement objection. For all of the foregoing reasons, the consent order, entered by the circuit court on June 5, 2014, is valid and enforceable, We hold that the court did have jurisdiction to hold a hearing regarding the contractual language in the Agreement. Furthermore, we agree | with the court’s finding that Father's agreement to the payment scheme was made freely and voluntarily Finally, we do not believe that the court improperly entered the consent order. For the aforementioned reasons, we affirm the judgment of the circuit court. JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.