Henriquez v. Henriquez

GRAEFF, J. This appeal arises from an award of attorney’s fees granted in the custody phase of a divorce and custody case between Jose Henriquez, appellant, and Ana S. Henriquez, appellee. Following a two-day hearing on the issues of custody, visitation, and child support, the Circuit Court for Montgomery County ordered, among other things, that Mr. Henriquez pay $5,000 in attorney’s fees to the House of Ruth Domestic Violence Legal Clinic (the “House of Ruth”), a non-profit organization that provided Ms. Henriquez with free legal representation at trial. On appeal, Mr. Henriquez presents ⁴⁶⁸ several issues for our review, which we have consolidated and reworded as follows: 1. Is a court authorized to award attorney’s fees in a case where a party is represented by a non-profit legal services organization that does not charge the litigant a fee for its representation? 2.

Did the circuit court properly exercise its discretion in awarding attorney’s fees to the House of Ruth when the bill for attorney’s fees was not provided in discovery prior to the custody proceeding? 1 For the reasons set forth below, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND The parties were married in El Salvador on April 18, 1998, and they had two children during the marriage: Ana, born in 1998; and Jessica, born in 2000. Ms. Henriquez had one child prior to the marriage: Gloria, born in 1994. On December 27, 2005, Ms. Henriquez filed in the Circuit Court for Montgomery County a Complaint for Absolute Divorce, which included ⁴⁶⁹ a request for the legal and physical custody of the children and “reasonable counsel fees and costs” of the proceedings.

The circuit court bifurcated the trial to consider the issues of custody, visitation, and child support separate and apart from the grounds for divorce and property disposition issues. On January 8 and 9, 2007, the court held proceedings on the custody and child support portion of the trial. At the conclusion of the first day of trial, Ms. Henriquez’s attorney introduced into evidence an itemized bill for “Attorney’s Fees for Custody, Visitation and Support Issues Only.” The bill documented counsel’s work on the case for 58.34 hours, at $200 per hour, for a total of $11,668. The bill covered the time period from May 19, 2006, to January 7, 20Ü7. 2 Mr. Henriquez objected to the introduction of the bill for attorney’s fees.

He argued as follows: The objection is twofold so it’s clear. Not only do we object to the introduction of the itemization, we object, Mr. Herrera [sic] objects to the request for counsel fees based upon the following history. In this case, Your Honor, interrogatories, a request for production of documents, and a deposition was [sic] taken. Interrogatory No. 27, which I’ve made a copy of which I won’t bother the Court now, but I’d like to mark and make it part of the record says, if you intend to produce or use any oral or written statements, photographs, video or sound recordings, and/or written documents in any trial or hearing of the case, please provide the following information.

And then it goes on to ask for the information. In this particular case, the answer which I’ll, [sic] provides no evidence or indication that there will be a statement of counsel fees. And again, the word is written documents. It’s just not responsive, in fact, there’s no response of course.

And then there is the question of the request for production of documents, Request No. 40, a copy of which I have says, ⁴⁷⁰ any and all documentary evidence which you or anyone on your behalf intends to introduce at the hearing of the matter. And the response is a copy of the photograph and marriage certificate produced. Again, I asked for documentary evidence. Now we have asked for written documents and we have asked for documentary evidence and neither the exhibit which was marked is that or it’s incorporeal evidence which we don’t believe really exists.

So we think that it should have been submitted. Counsel for Mr. Henriquez then read excerpts from Ms. Henriquez’s deposition, where counsel asked Ms. Henriquez whether she: 1) had “written any checks or paid any money to your lawyers for their legal services to you”; or 2) had “paid them any money to reimburse them from [sic] any costs that they have incurred in representing you in this case.” Ms. Henriquez answered these questions in the negative. Counsel for Mr. Henriquez further read to the court excerpts from the deposition where Ms. Henriquez’s counsel responded to his questions regarding whether there was a fee agreement. Ms. Henriquez’s counsel stated: “We don’t charge money for our hourly legal services.” She explained that, at the end of the case, Ms. Henriquez would not owe the House of Ruth any money, with the possible exception of reimbursement for expenses. 3 Based on these discovery responses, Mr. Henriquez argued that “they ought to be stopped [sic] from asking for attorneys [sic] fees since we might have conducted things a little bit differently with regard to asking questions for example of the expert.

How do you get from that to an $11,000 bill? So we object to it.” The court asked counsel for Ms. Henriquez if she wished to respond, and the following occurred: ⁴⁷¹ [COUNSEL FOR MS. HENRIQUEZ]: Yes, just briefly Your Honor. In terms of the interrogatories and the request for production of documents.

As [counsel for Mr. Henriquez] stated, there was no specific request for any bill regarding the attorney’s fees. And at the— [THE COURT]: I understand. [COUNSEL FOR MS. HENRIQUEZ]: At the time we produced documents there wouldn’t have been much of a bill to produce anyway. And we did prepare the bill in anticipation— [THE COURT]: Well, you have to update interrogatories as you go along so as to advise the other side. [COUNSEL FOR MS.

HENRIQUEZ]: Yes, Your Honor. [THE COURT]: Did you tell [counsel for Mr. Henriquez] at any time that, prior to yesterday!,] that you were going to be charging attorney’s fees? [COUNSEL FOR MS. HENRIQUEZ]: In the complaint for absolute divorce it’s very clearly stated that we are seeking— [THE COURT]: No, after the complaint. [COUNSEL FOR MS. HENRIQUEZ]:—-attorney’s fees. [THE COURT]: That’s why he was asking you the questions, because it was contained in the complaint. [COUNSEL FOR MS. HENRIQUEZ]: Well, the deposition that was taken and that [counsel for Mr. Henriquez] referred to in this case was actually taken in connection with the second portion of this case, which is the divorce and property disposition portion of the case.

And it was taken at a time that was after the period of discovery closed with respect to the custody merits portion of the trial, and it was actually taken after we were originally scheduled to be heard in the custody merits portion of the trial. So any questions that were asked in that deposition were to the issues as they relate to divorce of the parties and property disposition. [THE COURT]: Okay. Let’s go back to my original question. ⁴⁷² [COUNSEL FOR MS. HENRIQUEZ]: So, no, we had not stated to [counsel for Mr. Henriquez] anything about asking for attorney’s fees in the custody portion of the proceedings. [THE COURT]: All right.

And do you have a fee agreement? [COUNSEL FOR MS. HENRIQUEZ]: No, we do not. As the Court— [THE COURT]: Are you charging [Ms. Henriquez] an hourly rate for your services? [COUNSEL FOR MS. HENRIQUEZ]: No. The House of Ruth is a not-for-profit organization.

I am sure the Court is familiar, but— [THE COURT]: Well, I don’t know who employs you. I do not have any information about that one way or the other. [COUNSEL FOR MS. HENRIQUEZ]: Okay. But there is case law that states that even nonprofit organizations who do not receive fees directly from their individual clients, are still entitled to collect attorney’s fees in civil matters. [THE COURT]: Okay.

All right. [Counsel for Mr. Henriquez], you are on the record. [COUNSEL FOR MR. HENRIQUEZ]: Thank you. Mr. Henriquez testified that he paid his attorney a $5,000 fee to represent him at trial. In closing argument, both attorneys discussed the issue of an award of attorney’s fees.

Ms. Henriquez argued as follows: Finally and just briefly, we have submitted a bill for attorneys’ fees and would ask the Court to order the payment of fees by Mr. Henriquez. And the case of Blum v. Stenson, which is a United States Supreme Court case, 465 U.S. 886 , 104 S.Ct. 1541 , 79 L.Ed.2d 891 , permits the ordering of attorneys’ fees even when a party is represented by a non-profit public interest law firm. Thank you. Mr. Henriquez responded as follows: I would say that I think there is something fundamentally wrong when you get no answers to the discovery on a particular issue and then, as I read to the Court, you ⁴⁷³ explicitly ask it over and over again and you get the response “We don’t charge.” It wasn’t we don’t charge for this, but we charge, [sic] “We don’t charge.” We believe that they ought to be estopped from asking for counsel fees in view of what their representation was and that’s a matter of record.

Thank you very much. After hearing argument from both parties, the court awarded attorney’s fees to Ms. Henriquez. The court explained its decision as follows: The Court also believes that there should be some award of fees for representation given that essentially Mrs. Henriquez is wholly dependent and went to a community services organization for her representation. She’s virtually penniless as far as I can tell.

Mr. Henriquez makes what he makes.[ 4 ] Any payment to counsel obviously goes out of the family pocket and into, into counsel’s pocket. Mr. Henriquez has made a payment of $5,000 to [his attorney], I think that represents an exceptionally reasonable amount and I make an award of a similar amount to, for counsel fees.... The award of fees to the plaintiff are for purposes of costs and to whatever extent attorneys’ fees have been expended. On June 20-21, 2007, over five months after the custody and child support portion of the trial concluded, the court heard testimony regarding the grounds for divorce and property disposition issues, which are not at issue in this appeal.

On August 13, 2007, the court issued a Judgment of Absolute Divorce. The court ordered, among other things, that “Defendant shall pay to the Plaintiffs counsel, the House of Ruth Domestic Violence Legal Clinic, the sum of Five Thousand Dollars ($5,000.00) for attorney’s fees----” This timely appeal followed. DISCUSSION Mr. Henriquez contends that the circuit court erred in awarding attorney’s fees to Ms. Henriquez. He advances two ⁴⁷⁴ arguments in support of this contention.

First, he argues that the award of attorney’s fees was improper because the House of Ruth is a non-profit legal services organization that did not charge Ms. Henriquez a fee for its representation; he argues that a court is authorized to award attorney’s fees only when a party actually incurs expenses for legal fees. Second, Mr. Henriquez argues that Ms. Henriquez’s claim for attorney’s fees is barred because she failed to disclose in discovery any information in support of a claim for attorney’s fees. Ms. Henriquez, on the other hand, argues that the court properly awarded her attorney’s fees, stating that it is immaterial whether a party personally incurred legal expenses. She argues that “non-paid legal counsel are entitled to court-ordered awards of attorney’s fees in the same way as paid counsel,” and that “attorney’s fee awards to private, not-for-profit legal services organizations, such as the House of Ruth, further the public interest of creating an equitable system of justice and should be upheld by this Court.” With respect to the alleged discovery violation, Ms. Henriquez states that the court did not abuse its discretion in awarding attorney’s fees because the pleadings gave notice that she was seeking attorney’s fees, and Mr. Henriquez’s counsel did not ask questions during discovery that specifically requested information regarding the claim for fees.

A. Award of Attorney’s Fees to Non-Profit Organization Maryland generally follows the “ ‘American rule,’ ” which provides that “ ‘each party to a case is responsible for the fees of its own attorneys....’” Royal Inv. Group, LLC v. Wang, 183 Md.App. 406, 456 , 961 A.2d 665 (2008) (quoting Friolo v. Frankel, 403 Md. 443, 456 , 942 A.2d 1242 (2008)). There are exceptions to this rule, however, including when “ ‘there is a statute that allows the imposition of such fees.’ ” Id. (quoting Nova Research, Inc. v. Penske Truck Leasing Co., 405 Md. 435, 445 , 952 A.2d 275 (2008)). ⁴⁷⁵ The circuit court here awarded Ms. Henriquez attorney’s fees pursuant to Md.Code (2006 RepLVol.), § 12-103 of the Family Law Article (“F.L.”), which provides: , (a) In general.—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; or (2) files any form of proceeding: (i) to recover arrearages of child support; (ii) to enforce a decree of child support; or (iii) to enforce a decree of custody or visitation.

(b) Required considerations.—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) Absence of substantial justification.—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. Mr. Henriquez makes no claim that the attorney’s fee award here was not reasonable; nor does he claim that the award was not based on the factors set forth in the statute. Rather, Mr. Henriquez’s sole argument is that a court cannot order an award of attorney’s fees to a party who did not personally incur expenses for legal fees.

A court’s decision to award attorney’s fees generally is reviewed under an abuse of discretion standard. Petrini v. Petrini, 336 Md. 453, 468 , 648 A.2d 1016 (1994) (“Decisions concerning the award of counsel fees rest solely in the discre ⁴⁷⁶ tion of the trial judge.”); Malin v. Mininberg, 153 Md.App. 358, 435-36 , 837 A.2d 178 (2003) (the “trial court ‘is vested with wide discretion’ in deciding whether to award counsel fees and, if so, in what amount.”) (quoting Dunlap v. Fiorenza, 128 Md.App. 357, 374 , 738 A.2d 312 (1999)). If the court gives proper consideration to the statutory factors and the circumstances of the case, an award of attorney’s fees will not be reversed “ ‘unless a court’s discretion was exercised arbitrarily or the judgment was clearly wrong.’ ” Collins v. Collins, 144 Md.App. 395, 447 , 798 A.2d 1155 (2002) (quoting Petrini, 336 Md. at 468 , 648 A.2d 1016 ). In this case, however, Mr. Henriquez’s argument is that a court has no authority under the statute to award attorney’s fees unless that party actually incurred expenses for legal fees.

This contention is reviewed de novo. See Nesbit v. Government Employees Ins. Co., 382 Md. 65, 72 , 854 A.2d 879 (2004) (“When the trial court’s order ‘involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are legally correct under a de novo standard of review.’ ”) (quoting Walter v. Gunter, 367 Md. 386, 392 , 788 A.2d 609 (2002)); Jones v. Rosenberg, 178 Md.App. 54, 68 , 940 A.2d 1109 (“Questions of law decided by the trial court are subject to a de novo standard of review.”), cert. denied, 405 Md. 64 , 949 A.2d 652 (2008). In determining the scope of the statutory authority to award attorney’s fees pursuant to F.L. § 12-103, we must apply well-established principles of statutory interpretation: [O]ur primary goal is always “to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision, be it statutory, constitutional or part of the Rules.” Dep’t of Health & Mental Hygiene v. Kelly, 397 Md. 399, 420 , 918 A.2d 470, 482 (2007); Gen.

Motors Corp. v. Seay, 388 Md. 341, 352 , 879 A.2d 1049, 1055 (2005). We begin our analysis by first looking to the normal, plain meaning of the language of the statute, reading the statute as a whole to ensure that “ ‘no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.’ ” Kelly, 397 Md. at 419-20 , 918 ⁴⁷⁷ A.2d at 482; Kane v. Bd. of Appeals of Prince George’s County, 390 Md. 145, 167 , 887 A.2d 1060, 1073 (2005). Further, whenever possible, an interpretation should be given to the statutory provisions which does not lead to absurd consequences. See Roskelly v. Lamone, 396 Md. 27, 53 , 912 A.2d 658, 673 (2006); So.

Easton Neighborhood Assoc. v. Town of Easton, 387 Md. 468, 495 , 876 A.2d 58, 74 (2005) ; Smack v. Dep’t of Health & Mental Hygiene, 378 Md. 298, 305 , 835 A.2d 1175, 1179 (2003) (“[T]he statute must be given a reasonable interpretation, ‘not one that is illogical or incompatible with common sense.’ ”). If the language of the statute is clear and unambiguous, we need not look beyond the statute’s provisions and our analysis ends. Kelly, 397 Md. at 419 , 918 A.2d at 482 ; City of Frederick v. Pickett, 392 Md. 411, 427 , 897 A.2d 228, 237 (2006) ; Davis v. Slater, 383 Md. 599, 604-05 , 861 A.2d 78, 81 (2004). If, however, the language is subject to more than one interpretation, it is ambiguous, and we resolve that ambiguity by looking to the statute’s legislative history, case law, and statutory purpose.

Kelly, 397 Md. at 419-20 , 918 A.2d at 482 ; Oakland v. Mountain Lake Park, 392 Md. 301, 316 , 896 A.2d 1036, 1045 (2006); Canaj, Inc. v. Baker & Division Phase III, 391 Md. 374, 403 , 893 A.2d 1067, 1084 (2006). Taylor v. Mandel, 402 Md. 109, 128-29 , 935 A.2d 671 (2007). Accordingly, we start, as we must, with the plain language of the statute. See Lawson v. State, 389 Md. 570, 583 , 886 A.2d 876 (2005) (“Legislative intent must be sought in the first instance in the actual language of the statute.”); Price v. State, 378 Md. 378, 387 , 835 A.2d 1221 (2003) (“(Sjtatutory interpretation begins, and usually ends, with the statutory text itself’).

The language of § 12-103(b) makes clear that there are three factors that the court must consider in determining whether to award attorney’s fees in a case involving custody, support or visitation of a child: “(1) the financial status of each party; (2) the needs of each party; and (3) whether there was a substantial justification for bringing, maintaining, or defending the proceeding.” There is nothing in the language of the ⁴⁷⁸ statute that requires a court to consider the status of the legal services provided or whether a party actually incurred legal fees. Mr. Henriquez, in arguing that a required consideration in awarding attorney’s fees is whether the party actually incurred expenses, is attempting to insert a consideration not listed by the General Assembly. This is not in accord with settled rules of statutory interpretation. See Bost v. State, 406 Md. 341, 350 , 958 A.2d 356 (2008) (“ ‘We neither add nor delete words to a clear and unambiguous statute to give it a meaning not reflected by the words the Legislature used or engage in forced or subtle interpretation in an attempt to extend or limit the statute’s meaning.’ ”) (quoting Stoddard v. State, 395 Md. 653, 662 , 911 A.2d 1245 (2006)).

By its plain terms, § 12-103 sets forth three factors that the court is required to consider before it may, in its discretion, award reasonable attorney’s fees. 5 The criteria set forth in the statute do not include the status of the legal services provider as a factor that must be considered by the court. Accordingly, pursuant to the plain language of the statute, there is no per se bar to awarding attorney’s fees to a party who is represented by a non-profit organization that provides the party with free legal representation. 6 Our interpretation of § 12-103 is consistent with that of other states that have addressed this issue in the family law ⁴⁷⁹ context. In Benavides v. Benavides, 11 Conn.App. 150 , 526 A.2d 536, 537 (1987), the plaintiff requested attorney’s fees in connection with her claim for child support and custody of her children. Ms. Benavides was represented by Connecticut Legal Services, Inc., a nonprofit organization.

Id. at 537. She claimed attorney’s fees in the amount of $2,100, which the trial court found to be justified. Id. The court reduced the amount awarded, however, because her counsel was employed by a nonprofit organization.

Id. The Appellate Court of Connecticut reversed, finding that the criteria set forth in the statute authorizing attorney’s fees made “no provision for any consideration of the status of the legal services rendered, be it private counsel or nonprofit counsel....” Id. at 538. The trial court, in focusing on the “nonprofit status” of counsel, introduced a factor not contained in the statute. Id. 7 Similarly, in In re Marriage of Ward, 3 Cal.App.4th 618, 626 , 4 Cal.Rptr.2d 365 (Cal.Ct.App.1992), the Court of Appeal of California held that legal services organizations providing pro bono representation to indigents are eligible to receive attorney fee awards in matrimonial matters.

The court noted that the statutes authorizing a court to make an award of attorney’s fees set forth various considerations for the court to consider, none of which included establishing “any underlying private obligation to pay attorney’s fees in order to obtain an award for such fees.” Id. at 627 , 4 Cal.Rptr.2d 365 . Other states have similarly construed their statutes. See In re Marriage of Brockett, 130 Ill.App.3d 499 , 85 Ill.Dec. 794 , 474 N.E.2d 754, 756 (1984) (trial court erred in refusing to award attorney’s fees to legal services office on the basis that ⁴⁸⁰ Ms. Brockett had not “incurred” fees; statute “does not expressly limit a fee awarded to a legal services office”); In re Marriage of Gaddis, 632 S.W.2d 326, 328 (Mo.Ct.App.1982) (Legal Aid attorney may be granted attorney’s fees in divorce action; “representation by a Legal Aid attorney is not a relevant factor in determining the propriety or amount of an award of attorneys’ fees” under statute authorizing an award of fees); In re Marriage of Malquist, 266 Mont. 447 , 880 P.2d