Goldberg v. Miller

BATTAGLIA, J. The petitioner in this case, David S. Goldberg, Esquire, (“Goldberg”), seeks review of the judgment of the Court of Special Appeals and asks this Court to determine whether guardian ad litem fees imposed pursuant to Maryland Code § 1-202 of the Family Law Article (1984, 1999 Repl.Vol.) (hereinafter “guardian ad litem fees”) can be collected through garnishment of a federal retirement annuity under 5 C.F.R. § 581.307 (2002), which requires such fees to be treated as child support. Agreeing with the intermediate appellate court, we hold that a Circuit Court does not possess the authority to treat guardian ad litem fees as child support. We, therefore, affirm the judgment of the Court of Special Appeals. I. Facts: Goldberg, licensed to practice law in the State of Maryland, became involved in a contentious divorce and child custody dispute between Robert Miller and Mary Miller on August 9, 1999, when the Circuit Court for Montgomery County appointed him guardian ad litem for the parties’ minor son, Joseph.

Goldberg’s representation of Joseph continued until the Millers placed their settlement agreement on the record on November 8, 1999. The Circuit Court incorporated the transcript of that recorded settlement into its order of November 30, 1999, establishing the Millers’ child custody, support, and visitation arrangements. Goldberg petitioned for guardian ad litem fees, which he was awarded on December 27, 1999 ⁵⁹⁵ pursuant to Maryland Code, § 1-202 of the Family Law Article. On February 18, 2000, Mary Miller filed a motion for modification of child custody and other relief, which generated extensive further proceedings.

Goldberg again became involved in the case when, on April 6, 2000, he filed a Response of Guardian Ad Litem to Plaintiffs Motion to Compel a Mental Examination of Robert Miller. On April 17, 2000, Mary Miller filed a petition to have Goldberg reappointed as guardian ad litem. Two days later, Goldberg filed a consent to the reappointment, which Robert Miller opposed. On May 26, 2000, the court entered an order requiring that all visitation by Robert Miller with Joseph be supervised and scheduled by Goldberg.

The court, on June 2, 2000, reappointed Goldberg to represent Joseph while the Millers continued to squabble over the modification to their child custody agreement. Accordingly, Goldberg served as Joseph’s guardian ad litem until August 28, 2000 when the court entered a visitation modification order. On September 7, 2000, Goldberg petitioned for guardian ad litem fees in connection with his representation of Joseph from December 1, 1999 through October 19, 2000. Robert Miller opposed the petition.

In his opposition, Robert Miller stated that Goldberg should be denied his request for fees because his participation in the case unnecessarily prolonged the litigation. Robert Miller also suggested, in his opposition, that Goldberg did not serve the best interest of the child, but, rather, acted as a partisan of Mary Miller. After holding two hearings on the fee issue, the court, on February 27, 2001, entered an award of $21,728.00 in attorney’s fees to Goldberg, $14, 340.48 of which was to be paid by Robert Miller. The court ordered the remaining $7387.52 to be paid by Mary Miller.

Robert Miller, a retired employee of the federal government, filed for bankruptcy the next day. In an attempt to collect the judgment against Robert Miller, Goldberg wrote a letter requesting that the Circuit Court modify the award of counsel fees to describe it as being “in the nature of ‘child support’ for the benefit and support of the said ⁵⁹⁶ child.” According to the request, the guardian ad litem fees, if properly characterized as child support, would enable Goldberg, under 5 C.F.R. § 581 , to garnish Robert Miller’s federal retirement benefits. 1 In response to Goldberg’s letter, the Circuit Court, on March 26, 2001, entered a Supplemental Order Awarding Attorney Fees to Guardian Ad Litem (hereinafter the “Supplemental Order”). The Supplemental Order, which is the subject of this appeal, provides in relevant part: ORDERED, that all fees awarded by this Court to David S. Goldberg, Esq., in his capacity as Guardian Ad Litem and as attorney for Joseph Miller, minor child of the parties in the above captioned case, are intended to be in the nature of child support recoverable for the support and benefit of the said minor child and within the definition of “Child Support” as set forth in 5 C.F.R. § 581.102 (d). This order encompassed both awards of guardian ad litem fees to Goldberg, the one entered on December 27, 1999 and the other entered on February 27, 2001.

Robert Miller’s motion to vacate the Supplemental Order was denied, and he appealed. The Court of Special Appeals reversed the Circuit Court’s decision. Miller v. Miller, 142 Md.App. 289 , 788 A.2d 717 (2002). The Court of Special Appeals held that the Circuit Court erred in two respects.

First, it held that the Circuit Court improperly modified the December 27, 1999 award of guardian ad litem fees because Goldberg’s request for modification of that award was not filed within thirty days after the entry of the award, as required by Md. Rule 2-535(a). Second, as to the February 27, 2001 award of guardian ad litem fees, the court held that the Circuit Court exceeded its ⁵⁹⁷ authority by treating guardian ad litem fees as child support. The court based this conclusion on its reading of Maryland statutory child support provisions under Maryland Code, § 12-204 of the Family Law Article, which provides certain criteria that courts must consider in computing child support awards. Relying on the rule of statutory construction, expres-sio unis est exlusio aliens (i.e., the expression of one is the exclusion of another), the court reasoned that the Legislature’s omission of guardian ad litem fees from the criteria under Section 12-204 “constitute^] a statement that the [Legislature did not intend for legal fees to be treated as child support.” Goldberg petitioned this Court for a Writ of Certiorari, which we granted.

Goldberg v. Miller, 368 Md. 526 , 796 A.2d 695 (2002). In his petition, Goldberg challenged only the portion of the opinion of the Court of Special Appeals that concerned the Circuit Court’s February 27, 2001 award of guardian ad litem fees. For clarity, we have rephrased the question on appeal as follows: “Under Maryland law, did the Circuit Court possess the authority to treat guardian ad litem fees as child support?” 2 Affirming the judgment of the Court of Special Appeals, we hold that the Circuit Court did not possess such authority because the treatment of guardian ad litem fees as child support is inconsistent with the Maryland statutory scheme for child support.

II

Discussion A. 5 C.F.R. § 581 , the Federal Regulation Because the Supplemental Order refers specifically to 5 C.F.R. § 581.102 (d), it is useful to begin by exploring the ⁵⁹⁸ federal scheme. By authority of 42 U.S.C.A. § 661 , 3 the Office of Personnel Management promulgated 5 C.F.R. § 581 , entitled Processing Garnishment Orders for Child Support and/or Alimony. Section 581.101 states, in relevant part: ⁵⁹⁷ Are legal fees awarded pursuant to § 1-202(2) of the Family Law Article, Code of Maryland, to a guardian ad litem appointed to represent a minor child in a domestic proceeding in the nature of "child support” for purposes of 5 C.F.R. § 581.102 (d) and 5 C.F.R. § 581.307 relating to the collection of such fees from a judgment debtor's federal retirement annuity? ⁵⁹⁸ [M]oneys, the entitlement to which is based upon remuneration for employment, due from, or payable by, the United States ... to any individual, shall be subject, in like manner and to the same extent as if the United States ... were a private person: (1) To legal process for the enforcement of an obligor’s legal obligations to provide child support, alimony, or both, resulting from an action brought by an individual obli-gee. ... 5 C.F.R. § 581.101 . Therefore, the regulation permits garnishment of income for federal employment, including retirement income, to the same extent as any other income if the obligation underlying the garnishment is one for either child support or alimony or both.

Before the regulation can operate with respect to a child support obligation, however, the ⁵⁹⁹ “obligation” must meet the regulation’s definition of child support. The regulation defines child support as: [T]he amounts required to be paid for the support and maintenance of a child, ... which provides for monetary support, health care, arrearages or reimbursement, and which may include other related costs and fees, interest and penalties, income withholding, attorney’s fees, and other relief. 5 C.F.R. § 581.102 (d). Under this definition, attorney’s fees may be considered child support. Determining when a particular award of attorney’s fees qualifies as child support, though, turns on a whether the award meets the several requirements of 5 C.F.R. § 581.307 .

That section provides: Before complying with legal process that requires withholding for the payment of attorney fees, ... the government entity [from which the federal benefits are payable] must determine that the legal process meets both of the following requirements: (a) The legal process must expressly provide for inclusion of attorney fees ... as (rather than in addition to) child support ...; (b) The awarding of attorney fees ... as child support ... must be within the authority of the court, authorized official, or authorized State agency that issued the legal process. It will be deemed to be within the authority of the court, authorized official, or authorized State agency to award attorney fees as child support ... if such order is not in violation of or inconsistent with State or local law, even if State or local law does not expressly provide for such award. 5 C.F.R. § 581.307 . The section, therefore, imposes three requirements: (1) the award of attorney’s fees must come through a “legal process”; (2) the “legal process” must expressly describe the attorney’s fees as child support; and (3) the court issuing the legal process must possess the authority to treat attorney’s fees as child support. We will address each of these requirements in turn. ⁶⁰⁰ The first requirement of 5 C.F.R. § 581.307 involves the definition of the term “legal process.” Legal process, under this regulation, is defined as: [A]ny writ, order, summons, notice to withhold income pursuant to subsection (a)(1) or (b) of section 666 of title 42, United States Code, or other similar process in the nature of garnishment, which may include an attachment, writ of execution, court ordered wage assignment, ... and which— (1) Is issued by: (1) A court of competent jurisdiction, including Indian tribal courts, within any State, territory, or possession of the United States, or the District of Columbia ... and Hs He * (2) Is directed to, and the purpose of which is to compel, a government entity, to make a payment from moneys otherwise payable to an individual, to another party to satisfy a legal obligation of the individual to provide child support, alimony or both. 5 C.F.R. § 581.102 (f).

Stated more simply, to qualify as a “legal process” under this regulation, the process must come through some form in the nature of garnishment, such as a writ, order, or summons, it must have been issued by a court of competent jurisdiction, and it must have been issued for the purpose of garnishing federal wages. The Supplemental Order in the present case does qualify as a “legal process” under 5 C.F.R. § 581.102 (f) because it was issued as an order by a Maryland Circuit Court, a court of competent jurisdiction. The Supplemental Order also specifically refers to 5 C.F.R. § 581 , the regulation that allows for the garnishment of income payable by the federal government, as required. As a qualified “legal process,” therefore, the Supplemental Order satisfies the first prong of 5 C.F.R. § 581.307 .

To meet the second requirement of 5 C.F.R. § 581.307 , the “legal process” must expressly provide for the inclusion of attorney’s fees as child support. The language of the Supplemental Order expressly described the guardian ad litem fees ⁶⁰¹ as “in the nature of child support recoverable for the support of and benefit of the said minor child and within the definition of ‘Child Support’ as set forth in 5 C.F.R. § 581.102 (d).” By using this explicit language, the court made it clear that the award for guardian ad litem fees was to be included as child support. The Supplemental Order, as a result, meets the second requirement of 5 C.F.R. § 581.307 . The third and final aspect of 5 C.F.R. § 581.307 that we must determine is whether the “awarding of attorney fees ... as child support [was] within the authority of the court ... that issued the legal process.” § 581.307(b).

The court possesses the “authority” to award attorney fees as child support if the order “is not in violation of or inconsistent with State or local law.” Id. The question, therefore, becomes whether the Circuit Court’s treatment of guardian ad litem fees as child support violated or was inconsistent with Maryland law. Upon examining the history and provisions of Maryland’s statutory scheme for child support awards, we conclude that the Circuit Court’s treatment of guardian ad litem fees as child support was inconsistent with Maryland law. B. Child Support A close examination of Maryland’s statutory scheme for child support leads us to the conclusion that the General Assembly did not intend that guardian ad litem fees be deemed part of child support.

We reach this conclusion for two reasons. First, the Legislature elected not to include guardian ad litem fees under its scheme for identifying child support. Second, were guardian ad litem fees treated as child support, we believe such treatment inappropriately could subject the debtor to possible imprisonment through contempt proceedings and could affect adversely the best interest of children by attorney’s fees displacing other more direct expenses. 1. Statutory Scheme for Child Swpport Awards When called upon to interpret a statute, we adhere to our well established principles of statutory construction.

Recent ⁶⁰² ly, in Witte v. Azarian, 369 Md. 518 , 801 A.2d 160 (2002), we stated that: [W]hen engaged in [statutory interpretation], our goal is to ascertain and implement, to the extent possible, the legislative intent. In so doing, we look first to the words of the statute, on the tacit theory that the Legislature is presumed to have meant what it said and said what it meant. If the true legislative intent cannot readily be determined from the statutory language alone, however, we may, and often must, resort to other recognized indicia — among other things, the structure of the statute, including its title; how the statute relates to other laws; the legislative history, including the derivation of the statute, comments and explanations regarding it by authoritative sources during the legislative process, and amendments proposed or added to it; the general purpose behind the statute; and the relative rationality and legal effect of various competing constructions. 369 Md. at 525-26 , 801 A.2d at 165 . The relevant statutes in the case sub justice are silent on the subject of whether guardian ad litem fees may be described as child support, so we must look beyond the mere language of the statute to elucidate legislative intent.

In arriving at its conclusion, the Court of Special Appeals relied, almost exclusively, on the maxim of statutory construction known as expressio unis est exlusio alteris (i.e., the expression of one thing is the exclusion of another). Although we recognize this maxim to be a useful interpretive device, it should be used with caution and not as a rule of law. Hylton v. Mayor and City Council of Baltimore, 268 Md. 266, 282 , 300 A.2d 656, 664 (1972); Kirkwood v. Provident Savings Bank, 205 Md. 48, 55 , 106 A.2d 103, 107 (1954); see Stanford v. Maryland Police Training & Correctional Comm’n, 346 Md. 374, 379 , 697 A.2d 424, 426 (1997). Accordingly, we prefer to focus on other recognized indicia of legislative intent, such as the statutory scheme for child support, its relation to other laws, and the legislative history. ⁶⁰³ We find it instructive to examine briefly, at the outset, the background of child support in Maryland.

This Court has long recognized the parents’ obligation to support their minor children. See Carroll County v. Edelmann, 320 Md. 150, 170 , 577 A.2d 14, 23 (1990); Kriedo v. Kriedo, 159 Md. 229, 231 , 150 A. 720, 721 (1930); Blades v. Szatai, 151 Md. 644, 647 , 135 A. 841, 842 (1927). This obligation imposes a duty on the parent to provide support and confers a right on children to receive it. Middleton v. Middleton, 329 Md. 627, 632 , 620 A.2d 1363, 1365 (1993) (quoting Edelmann, 320 Md. at 170 , 577 A.2d at 23-24 ).

In Middleton , we stated that the child support obligation “is not perfunctory, to be performed only at the voluntary pleasure or whimsical desire of the parent....” Id. at 633 , 620 A.2d at 1366 (citations omitted). In accordance with these principles, treating an award as child support significantly elevates the level of protection it receives under the law. For example, if a court order is deemed to be child support, the one to whom the obligation is owed can collect the obligation through the court’s contempt powers. Lynck v. Lynch, 342 Md. 509, 519 , 677 A.2d 584, 589 (1996) (“Thus, notwithstanding that the proceedings are civil in nature, a defendant may be imprisoned for civil contempt.”); see Md. Rule 15-207(e) (2001) (allowing a court to find one in constructive civil contempt for failure to pay spousal or child support).

Indeed, under the Constitution of Maryland, which prohibits imprisonment for debt, only child support and alimony awards are explicitly exempted from the meaning of debt. Md. Const. Art. III, § 38. A court, therefore, may employ its contempt powers, including the power to imprison, against one who refuses to comply with an order to pay child support.

Rutherford v. Rutherford, 296 Md. 347, 364 , 464 A.2d 228, 237 (1983). Because an obligation to pay child support creates an enforceable duty of the parent, a trial court may not select, at its complete discretion, which of its orders should be deemed child support. Instead, the trial court must adhere to the Legislature’s plan for calculating the amount and character of ⁶⁰⁴ a child support award. See Drummond v. State, 350 Md. 502, 511-12 , 714 A.2d 163, 168 (1998); Walsh v. Walsh, 333 Md, 492, 498, 635 A.2d 1340, 1343 (1994) (observing that the court is required to apply the statutory guidelines in determining child support).

This structure, commonly known as the Child Support Guidelines (the “Guidelines”), first appeared in Maryland law in 1989 to provide courts with a standard formula for determining child support awards. 1989 Md. Laws ch. 2. In Voishan v. Palma, 327 Md. 318 , 609 A.2d 319 (1992), Judge Chasanow, writing for this Court, described the purpose and impetus for enacting the Guidelines: The General Assembly enacted these guidelines in 1989 to comply with federal law and regulations. See 42 U.S.C. §§ 651-667 (1982 & 1984 Supp. II) and 45 C.F.R. § 302.56 (1989). The federal mandate required that the guidelines be established and “based on specific descriptive and numeric criteria and result in a computation of the support obligation.” Id.

When drafting the guidelines, the Maryland Senate Judicial Proceedings Committee had before it Development of Guidelines For Child Support Orders: Advisory Panel Recommendations and Final Report, U.S. Department of Health and Human Services’ Office of Child Support Enforcement. This report explained that the need for the guidelines was threefold: (1) to “remedy a shortfall in the level of awards” that do not reflect the actual costs of raising children, (2) to “improve the consistency, and therefore the equity, of chiíd support awards,” and (3) to “improve the efficiency of court processes for adjudicating child support....” 327 Md. at 322 , 609 A.2d at 321 (footnote omitted). The Guidelines provide courts with uniform criteria that they must consider in awarding child support. The enumerated criteria consist of calculations to be used in computing the amount one party owes to another in child support.

Petrini v. Petrini, 336 Md. 453, 460 , 648 A.2d 1016, 1019 (1994). The calculations include: (1) the schedule of basic support obligations, which provides the court with an amount ⁶⁰⁵ of child support based on the combined actual income of the parents and the number of children needing support, id. § 12-204(a)(1); (2) any actual child care expenses due to either parent’s employment, id. § 12-204(g); (3) extraordinary medical expenses, id. § 12 — 204(h); (4) any