David A. v. Karen S.

Fader, C.J. This appeal requires us to determine: (1) whether a de facto parent is eligible for an award of attorney's fees and costs incurred in a dispute over custody and visitation; and (2) whether such an award can be made against a non-parent who intervenes in such a dispute. We conclude that, under § 12-103(a)(1) of the Family Law Article (Repl. 2012; Supp. 2018), a de facto parent is eligible for such an award and an intervening non-parent can be ordered to pay such an award. Appellants David and Jennifer A. ask us to determine whether the circuit court erred in ordering them to pay the attorney's fees incurred by the appellee, Karen S., in connection with a battle over custody of five-year-old A.W. ("Child"). 1 The custody battle involved four at least nominally-distinct parties: (1) the A.s, Child's paternal grandparents; 2 (2) Ms. Karen S., Child's maternal grandmother ("Ms. Karen S."); (3) Matthew W., Child's father ("Father"); and (4) Sara S., Child's mother ("Mother").

After a custody hearing, the Circuit Court for Baltimore City issued a comprehensive order in which the court concluded, among other things, that Ms. Karen S. was entitled to an award of attorney's fees and costs against the A.s under § 12-103(a)(1). The court subsequently set the amount of the award at $57,289.32, the entire amount incurred by Ms. Karen S. (the "Fee Award"). The A.s challenge the Fee Award on five grounds.

In addition to their contention that § 12-103(a)(1) authorizes an award of attorney's fees only by one parent against another, the A.s argue that the circuit court erred in (1) ordering them to pay all of Ms. Karen S.'s attorney's fees and costs, rather than a portion of them; (2) determining that Ms. Karen S. had not waived her claim for attorney's fees; (3) finding that the A.s lacked substantial justification for bringing their claims; and (4) failing to reduce the Fee Award in light of sums the A.s had previously paid to support Child. Finding no error or abuse of discretion as to any of these determinations, we affirm. BACKGROUND Father initiated this litigation in February 2017 by filing a complaint for sole legal and physical custody of Child, naming as defendants Ms. Karen S. and Mother. Two days later, Ms. Karen S. brought an ex parte emergency custody proceeding in Harford County, through which that court granted her temporary custody of Child.

See Case No. 12-C-17-000450 (Cir. Ct. Harford County). The two actions were later consolidated in the Circuit Court for Baltimore City. In his complaint, Father alleged that Mother was a drug user who "deliberately committed various acts of destruction ... in the presence of [Child]" and was unfit to have custody. Father also alleged that Ms. Karen S. had taken Child from his residence, which had deprived Father of his parental rights, and that she refused to allow him or the A.s access to Child.

On April 5, 2017, the A.s moved to intervene. In their motion and their cross-complaint for custody, visitation, and child support, the A.s alleged that they had participated in raising Child, that Child had a deep attachment to them, and that they had provided financial support to Child, Father, and Mother. The A.s "den[ied] that [Father] is not a fit parent," but sought "full legal and full physical custody of [Child], in the event that [Father] is found by this Court to be unfit for custody." The A.s also alleged that Ms. Karen S.'s home was not fit for Child and that Ms. Karen S. herself "is not a fit and proper person to have custody or visitation" with Child. 3 The Trial In May 2018, the court held a four-day trial in which it heard testimony from, among others, Mother, Father, Ms. Karen S., Ms. A., and Mr. A. All parties except Mother were represented by counsel. Testimony revealed that Mother and Father had both abused drugs, had physical altercations with each other, relied on the A.s and Ms. Karen S. for financial support and childcare, and lacked steady employment.

Mother testified that she had a drug addiction, but had been clean for 15 months. Father denied having a drug addiction. The testimony at trial was generally positive with respect to the relationship between Child and both Ms. Karen S. and the A.s., as well as the support the grandparents had provided for and to Child. Notably for our purposes, Ms. A.'s trial testimony contradicted that of her deposition as well as the allegations of her cross-complaint in that she admitted at trial that: (1) Father is not fit to have custody of Child; and (2) Ms. Karen S. is fit to have custody.

Ms. A. attributed the change in her testimony to "something wrong in communication with [her] counsel" during her deposition, but she acknowledged that she knew she was under oath at the time. The A.s and Ms. Karen S. each testified at trial regarding the state of their respective finances. Mr. A. testified that he had paid cash for a home he bought for Father's family, that he earned "about $2,900,000" in gross income the previous year, and that he owned a beach property and other significant assets. By contrast, Ms. Karen S. testified that she had been forced to "cash[ ] out" her retirement assets to pay legal fees of approximately $19,500, and that she had no funds available to pay approximately $23,740 in outstanding legal fees.

In making her pro se closing argument, Mother admitted to her drug addiction and to her current unfitness to have custody over Child. She argued that the A.s should not have custody over Child because of their history of ignoring and enabling Father's ongoing drug addiction, which left Child in a "dangerous environment for three years," and she implored the court to "protect my son." Ms. Karen S. argued that Mother and Father were both unfit and that it was in Child's best interest for her to have sole custody. Like Mother, Ms. Karen S. argued that the A.s had ignored signs of Father's addiction for years and continued to enable his addiction. Indeed, she observed, the A.s had contended that Father was a fit parent in supplemental interrogatory responses filed just five days earlier.

Ms. Karen S. asked for custody of Child "just until these parents can get on their feet." She also requested that the court order the A.s to make "a contribution to [her] attorney's fees." The A.s' closing argument, echoing Ms. A.'s testimony, departed from the positions they had taken leading up to trial in two critical respects. First, they admitted that Father was "unfit to have custody and there are a whole series of reasons why." Second, they admitted that Ms. Karen S. is fit. They also, however, asked the court not to penalize them for having missed the signs of their son's addiction and sought shared custody of Child. The A.s also asked that the court not enter an award of attorney's fees against them, contending that they had been "very kind and good ... in supporting this family" and "that they had substantial justification for participating in this litigation." Before his own counsel's closing argument, Father made a statement in which he admitted, for the first time, that he had a drug addiction and required help to get treatment.

His counsel then acknowledged Father's present unfitness and asked the court to implement the shared custody plan advocated by the A.s. At the conclusion of trial, the court announced its findings and conclusions from the bench, including: • Mother and Father both have drug addictions, but were at different stages in their recoveries. Both are unfit to have custody. • Mother, who the court found to be credible, had been clean since February 2017 and was on the road to recovery. However, Mother had not "been clean for long enough" or established a long enough track record for the court to be convinced that it was in Child's best interest for her to have custody. • Father, who the court did not find to be credible except for his belated admission that he was a drug addict, had not yet begun his recovery. • Ms. Karen S. and her husband, Mr. S., were both credible, cared deeply for Child, and were capable of taking care of him.

Ms. Karen S. had acted in Child's best interests in removing him from the dangerous environment he had been living in and obtaining a court order allowing her to take over his care. • For the last year, Ms. Karen S. had been Child's de facto parent. • As a result of the parents' addictions, exceptional circumstances existed to award custody to a non-parent. • Although the A.s love Child, the court found much of their testimony incredible, which raised doubts regarding their "character and reputation." The court identified a number of inconsistencies in their testimony and in the positions they had taken in the case, including as to their alleged lack of awareness of Father's addiction, their prior claims that Father was fit and that Ms. Karen S. was unfit, and Ms. A.'s testimony regarding signing documents under oath that included statements with which she disagreed. • Although the A.s were in position to give Child "an exceptional financial future," Ms. Karen S. and her husband "can meet his every need ...." The court reviewed all of the required statutory factors and then awarded Ms. Karen S. sole legal custody and primary physical custody of Child, with the A.s having visitation every other weekend and on certain holidays. The court allowed Mother to have unsupervised visitation with Child as long as she continues to seek treatment and have clean drug tests, and stated that Father would eventually be allowed the same access if he also receives treatment and has consistent clean drug tests. The Attorney's Fees Award In a subsequent written order that restated many of these findings and conclusions, the court also concluded that Ms. Karen S. was entitled to an award of attorney's fees and costs. In a simultaneously-filed memorandum opinion, the court identified the three factors it was required to consider: "(1) the financial status of each party; (2) the needs of each party; and (3) whether there was substantial justification for bringing, maintaining, or defending the proceeding." Reviewing each factor in detail, the court made the following findings and conclusions: • Father and Mother had both been supported by their respective parents and did not have the financial ability to pay any award of attorney's fees. • The A.s "maintain an upper-class standard of living" and own "numerous and substantial financial assets." Ms. Karen S.

"maintains a middle-class standard of living" that "pales in comparison" to the financial status of the A.s. • Ms. Karen S. "is in need of and is entitled to the reimbursement of the fees incurred in this matter." She "has exhausted most of her retirement savings for this case" and still owes approximately $23,000 to her counsel. She "is in need due to the financial burden of defending this case." • Ms. Karen S. was justified in defending this proceeding. When the lawsuit was filed, she was Child's de facto parent and there was no evidence that she was unfit. 4 In light of the evidence regarding the dangers to Child if he had been allowed to stay in the custody of Father-even under the supervision of the A.s-Ms. Karen S.

"had more than a substantial basis for defending the action." • The A.s "did not have substantial justification for bringing the action." Until their opening statement at trial, they claimed that Father was fit to have custody. The court found their testimony explaining that contention to be incredible and so doubted "the veracity of their stated reason to intervene in this case." The court concluded that their intervention had "led to a substantial amount of additional preparation and work for [Ms. Karen S.]'s counsel." The court concluded that Ms. Karen S. was entitled to an award of attorney's fees and costs to be paid by the A.s. The court ordered her to submit an affidavit and memorandum "with the final statement of account balance and an explanation of all costs, along with a description of the complexity of this case and a summary of her experience." The court reserved judgment regarding the reasonableness of the fees and costs. Ms. Karen S.'s counsel submitted the required affidavit along with a detailed time ledger in support of a final claim for $57,289.32 in attorney's fees and costs.

The A.s opposed the request, arguing that Ms. Karen S. failed to preserve her claim for attorney's fees, that she lacked a statutory basis for the claim, that she could not recover all of her fees from them, and that the court should give them a credit for amounts they had previously paid to support Child and Mother. In an order dated August 16, the court awarded attorney's fees and costs in favor of Ms. Karen S. and against the A.s for the full amount sought by Ms. Karen S. The A.s appealed. In their brief, the A.s challenge only the court's Fee Award. They do not challenge the court's decisions regarding custody or visitation or any of its related findings.

Ms. Karen S. did not file a brief and has not participated in this appeal. DISCUSSION "The trial court's award of fees and costs is a matter of discretion and is not subject to change unless clearly erroneous." In re Guardianship No. 89-CA-9865 in Circuit Court for Howard County , 88 Md. App. 191 , 197, 594 A.2d 606 (1991). In a child custody proceeding, "[a]n award of attorney's fees will not be reversed unless a court's discretion was exercised arbitrarily or the judgment was clearly wrong." Petrini v. Petrini , 336 Md. 453 , 468, 648 A.2d 1016 (1994). Abuse of discretion "occurs when a trial judge ... acts beyond the letter or reason of the law." Garg v. Garg , 393 Md. 225 , 238, 900 A.2d 739 (2006) (quoting Jenkins v. State , 375 Md. 284 , 295-96, 825 A.2d 1008 (2003) ).

Moreover, "an exercise of discretion based upon an error of law is an abuse of discretion." Brockington v. Grimstead , 176 Md. App. 327 , 359, 933 A.2d 426 (2007) ; see also Arrington v. State , 411 Md. 524 , 552, 983 A.2d 1071 (2009) ("[T]he court's discretion is always tempered by the requirement that the court correctly apply the law applicable to the case."). I. MS. KAREN S. DID NOT WAIVE OR FAIL TO PRESERVE HER CLAIM FOR ATTORNEY'S FEES AND COSTS. The A.s contended below and in their appellate brief that Ms. Karen S. waived her claim for attorney's fees and costs by failing to comply with the requirement of Rule 2-703(b) that such a claim be included in a party's initial pleading.

At oral argument, however, they conceded that Rule 2-703 does not apply here because Rule 2-702(b) expressly provides that the Chapter 700 rules "do not apply to claims for attorneys' fees [ ] in an action under Code, Family Law Article where an award of attorneys' fees does not depend on the applicant's having prevailed in the action or on any particular claim or issue in the action ...." The A.s nonetheless contend that Ms. Karen S. should be precluded from pursuing attorney's fees and costs because she raised her claim too late. We disagree. Although Ms. Karen S. did not expressly seek attorney's fees from the A.s in her answer to their crossclaim, her claim was not a surprise. Both parties had the opportunity to present evidence and arguments regarding her claim at trial and again in post-trial briefing and both parties did so.

We discern no abuse of discretion in the circuit court's determination that Ms. Karen S. had not waived or failed to preserve her claim for attorney's fees and costs.

II

THE COURT WAS AUTHORIZED TO AWARD COUNSEL FEES AND COSTS UNDER § 12-103 OF THE FAMILY LAW ARTICLE. The A.s argue that Ms. Karen S. was not eligible for an award of attorney's fees and costs under § 12-103(a)(1) of the Family Law Article because such fees may be awarded only as between parents, not grandparents. Determining whether they are right requires an examination of the language of the statute, which provides, in relevant part: (a) The court may award to either party the costs and counsel fees that are just and proper under all the circumstances in any case in which a person: (1) applies for a decree or modification of a decree concerning the custody, support, or visitation of a child of the parties; .... (b) Before a court may award costs and counsel fees under this section, the court shall consider: (1) the financial status of each party; (2) the needs of each party; and (3) whether there was substantial justification for bringing, maintaining, or defending the proceeding.

(c) Upon a finding by the court that there was an absence of substantial justification of a party for prosecuting or defending the proceeding, and absent a finding by the court of good cause to the contrary, the court shall award to the other party costs and counsel fees. Fam. Law § 12-103. When interpreting a statute, "[w]e assume that the legislature's intent is expressed in the statutory language and thus our statutory interpretation focuses primarily on the language of the statute to determine the purpose and intent of the General Assembly." Phillips v. State , 451 Md. 180 , 196, 152 A.3d 712 (2017).

Thus, "we begin 'with the plain language of the statute, and ordinary, popular understanding of the English language dictates interpretation of its terminology.' " Blackstone v. Sharma , 461 Md. 87 , 113, 191 A.3d 1188 (2018) (quoting Schreyer v. Chaplain , 416 Md. 94 , 101, 5 A.3d 1054 (2010) ). In reading the plain language, "we will not add or delete words from the statute." Melton v. State , 379 Md. 471 , 477, 842 A.2d 743 (2004). "We read 'the statute as a whole to ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.' " Conaway v. State , 464 Md. 505 , 522-23, 212 A.3d 348 , No. 69, Sept. Term 2018, 2019 WL 3024706 , at ⁹ (July 11, 2019) (quoting Ingram v. State , 461 Md. 650 , 661, 197 A.3d 14 (2018) ). "In parsing whether plain meaning or ambiguity is the case, we view the relevant statutory scheme as a whole, rather than seizing on a single provision." Conaway , 2019 WL 3024706 , at ⁹.

If the plain language of the statute is "ambiguous and subject to more than one reasonable interpretation," or "become[s] ambiguous when read as part of a larger statutory scheme," we "must resolve the ambiguity by searching for legislative intent in other indicia, including the history of the legislation and other relevant sources intrinsic and extrinsic to the legislative process." Town of Forest Heights v. Maryland-Nat'l Capital Park & Planning Comm'n , 463 Md. 469 , 479, 205 A.3d 1067 (2019) (quoting Gardner v. State , 420 Md. 1 , 9, 20 A.3d 801 (2011) ). In doing so, we "consider the consequences resulting from one meaning rather than another, and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense." Blackstone , 461 Md. at 114 , 191 A.3d 1188 (quoting Spangler v. McQuitty , 449 Md. 33 , 50, 141 A.3d 156 (2016) ). As noted, § 12-103(a)(1) allows an award of fees and costs "in any case in which a person ... applies for a decree ... concerning the custody ... of a child of the parties." Focusing on the last phrase, the A.s argue that Ms. Karen S. "has no right under this statute to claim counsel fees, because [Child] is her grandchild, not her child.

Similarly, the [A.s] have no exposure for counsel fees, because [Child] is their grandchild, not their child." Thus, the A.s argue, the plain language of the statute establishes that "a party can only recover fees when custody of the party's child is involved. The word 'grandchild' is not found in the statute." We conclude that the A.s' narrow interpretation of the statute is inconsistent with its language, context, and purpose. We will address separately the A.s' contentions that the statute does not authorize an award of attorney's fees and costs (1) in favor of Ms. Karen S., because Child is not her child and (2) against the A.s, for the same reason. A. Section 12-103(a)(1) Authorizes an Award of Attorney's Fees in Favor of Ms. Karen S. Ms. Karen S. is eligible for an award of fees under the plain language of § 12-103(a)(1) because the circuit court found that she is Child's de facto parent.

The A.s have not challenged that finding on appeal nor have they advanced any argument as to why a de facto parent is not eligible for an award of attorney's fees and costs under § 12-103(a)(1). We recently summarized de facto parent status as follows: "A putative de facto parent transcends third party status when she can establish, first and foremost, 'that the biological or adoptive parent consented to and fostered the petitioner's formation and establishment of a parent-like relationship with the child.' " Kpetigo v. Kpetigo , 238 Md. App. 561 , 573, 192 A.3d 929 (2018) (quoting Conover v. Conover , 450 Md. 51 , 74, 146 A.3d 433 (2016) ). Such a "parent-like relationship" requires that "the putative de facto parent and the child must have lived together in the same household, with the de facto parent taking on real parenting responsibilities over a sustained period of time." Kpetigo , 238 Md. App. at 573 , 192 A.3d 929 . 5 The " de facto parenthood test measures the relationship between the putative de facto parent and the child ... without reference to the parent's characteristics or the relationship's origins." Id. at 574 , 192 A.3d 929 . "What matters ... is the relationship between the putative de facto parent and the child and the child's best interests, not the relationship's title or consanguinity." Id. at 575 , 192 A.3d 929 .

Once established, such a relationship makes a de facto parent "distinct from other third parties." Conover , 450 Md. at 85 , 146 A.3d 433 . De facto parent status effectively elevates a third party to equal footing with biological parents for the purpose of determinations of custody and visitation, providing such an individual "standing to contest custody or visitation" without any requirement to "show parental unfitness or exceptional circumstances before a trial court can apply a best interests of the child analysis." Id. ; see also id. at 71-72 , 146 A.3d 433 (discussing Delaware's de facto parenthood case law, specifically that a de facto parent " would also be a legal 'parent' " with "a co-equal 'fundamental parental interest' in raising" the child) (quoting Smith v. Guest , 16 A.3d 920 , 931 (Del. 2011) ) (emphasis in Conover ). In other words, once a party is a de facto parent, his or her status in a dispute over custody or visitation is equal to that of a biological parent, adoptive parent, or other de facto parent because, as among those individuals, a court rendering a custody decision must consider only the best interest of the child, not any differences in the status of the parents. Here, the circuit court found that Ms. Karen S.

"is, and has been the de facto parent of [Child] since February, 2017." Ms. Karen S. thus has the status of a parent and is eligible to receive an award of attorney's fees and costs under § 12-103(a)(1). B. Section 12-103(a)(1) Authorizes an Award of Attorney's Fees Against the A.s. The A.s also argue that § 12-103(a) does not authorize an award of attorney's fees against them because Child is not their child. Their argument focuses on two phrases from the statute we emphasize here: (a) The court may award to either party the costs and counsel fees that are just and proper under all the circumstances in any case in which a person: (1) applies for a decree or modification of a decree concerning the custody, support, or visitation of a child of the parties ...

Fam. Law § 12-103(a) (emphasis added). The A.s contend that these phrases dictate that awards of attorney's fees and costs are available only in disputes between two parents. 1. The Statutory Language Is Ambiguous as to Whether the General Assembly Intended to Authorize an Award of Attorney's Fees and Costs Against a Non-Parent Intervenor.

We begin our analysis, as we must, with the "normal, plain meaning of the language of the statute." Wash. Gas Light Co. v. Md. Pub. Serv. Comm'n , 460 Md. 667 , 682, 191 A.3d 460 (2018) (quoting Shealer v. Straka , 459 Md. 68 , 84, 184 A.3d 391 (2018) ).

Were we to focus exclusively on the two phrases on which the A.s rely, divorced from their context, we might agree with them. "Either" generally means "one or the other of two people or things." New Oxford American Dictionary , "either," at 557 (3d ed. 2010); Merriam-Webster's Collegiate Dictionary , "either," at 399 (11th ed. 2014) ("being the one and the other of two: EACH."). The A.s would thus have us interpret the legislature's use of "either" in § 12-103(a) as an indication of an intent to limit the statute's applicability to two-party disputes, and to further presume that those two parties must be parents. They bolster that view by reference to the other phrase on which they rely.

They argue that by limiting the availability of an award to a situation in which the dispute concerns "a child of the parties," the General Assembly intended to authorize fee shifting only between parents. That, they contend, is because children are only children of their parents, not anyone else. Viewing the statutory language in context, however, it is at least ambiguous as to whether it extends to non-parent intervenors. First, we know that custody and visitation disputes are not necessarily limited to two parties, see, e.g. , Burak v. Burak , 455 Md. 564 , 626, 168 A.3d 883 (2017) (holding that grandparents who make proper prima facie showing are proper intervening parties in a custody dispute between parents); Powers v. Hadden , 30 Md. App. 577 , 353 A.2d 641 (1976) (custody dispute between grandparents, mother, and father), or to biological parents, see, e.g. , Conover , 450 Md. at 85 , 146 A.3d 433 (recognizing standing of a de facto parent to challenge custody). 6 Moreover, even if limited to two, the statute does not identify which two parties it covers.

Is that, as the A.s would have it, only biological parents? Or is it any two parties who dispute custody, visitation, and child support? Or any two parties who seek attorney's fees from each other, regardless of how many parties are involved in the dispute? In the context of the entire provision and the broader statutory scheme, we find no indication that the legislature intended the word "either" as a mechanism to limit the coverage of the statute to fewer than all parties to a custody or visitation dispute.

See State v. Bey , 452 Md. 255 , 266, 156 A.3d 873 (2017) ("We, however, do not read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute's plain language to the isolated section alone."). Had that been the General Assembly's intent, there were far easier and clearer ways to accomplish it, including by simply substituting "either parent" for "either party." See Ibru v. Ibru , 239 Md. App. 17 , 42, 194 A.3d 424 (2018), cert. denied , 462 Md. 570 , 201 A.3d 1235 (2019) (in analyzing the plain language of statutory terms, we recognize that "the Legislature is presumed to have meant what it said and said what it meant") (quoting Toler v. Motor Vehicle Admin. , 373 Md. 214 , 220, 817 A.2d 229 (2003) ). Second, the same sentence in § 12-103(a) identifies the types of disputes giving rise to eligibility for attorney's fees as any in which "a person" applies for a decree of custody, visitation or child support. Again, if it were really the intent of the General Assembly to limit eligibility for attorney's fees and costs to parents, it would have been much clearer to use the word "parent" instead of "person." It is difficult to imagine a broader word choice for this provision than "person." See, e.g. , New Oxford American Dictionary , "person," at 1307 ("a human being regarded as an individual"; "used in legal or formal contexts to refer to an unspecified individual").

"[W]here ... a statute is phrased in broad general terms, it suggests that the Legislature intended that the provision to be capable of encompassing circumstances and situations which did not exist at the time of the enactment." Ali v. CIT Tech. Fin. Servs., Inc ., 416 Md. 249 , 268, 6 A.3d 890 (2010) (quoting Kindley v. Governor of Md ., 289 Md. 620 , 625, 426 A.2d 908 (1981) ). Third, read in context, we do not find "child of the parties" to be an unambiguous reference to a biological parent-child relationship.

The A.s have not pointed us to any authority defining the phrase to have that meaning or to exclude quasi-parental relationships like the A.s claimed to have and want with Child. Proceedings regarding custody, visitation, or child support will necessarily involve parties who have or claim some parental or quasi-parental interest in the child(ren) at issue. Here, for example, all five parties claimed to have provided significant care for Child in the past and sought some measure of shared or sole custody of Child going forward. 7 Fourth, the statute does not expressly exclude parties to custody, visitation, or child support proceedings who are not parents from its fee shifting provisions. As discussed further below, we cannot discern from the statute itself any intent to do so, nor can we think of any policy reason to do so, and we are bound to reject interpretations that are "illogical or