Miller v. Miller

DAVIS, Judge. Although the instant appeal emanates from a divorce proceeding, the principal issue raised is the authority of the Chancellor to determine whether legal fees accrued and owed to the guardian ad litem constitute child support or simply legal fees, no different from legal fees awarded by the court to a husband or wife in any divorce proceeding in which issues involving the best interest of minor children are litigated. Recognizing that the authority to make this determination reposes with the legislature, should this Court construe a statutory enumeration of what constitutes child support as a statement that a conspicuous and substantial expense omitted from that list, i.e., the legal fees payable to a guardian ad. litem, was not intended to be child support? Should we decide that the General Assembly’s action evidences an intent to relegate guardian ad litem fees to the status of other legal fees, would any designation that such fees are child support by this Court constitute establishment of public policy, which is only within the purview of the legislature, in the first instance, and, in the absence of legislative pronouncement, the Court of Appeals?

In answering these and related questions, we are mindful that the trial court’s designation of legal fees as child support is not inconsequential and thus implicates public policy considerations. For example, the court’s designation is determinative of whether one may be imprisoned for contempt for ²⁴² failure to pay the amount owed and whether, as in the case at hand, the debtor’s wages may be garnished from federal pension benefits. En route to our disposition of the instant appeal, we are called upon to consider the interrelation, pursuant to the Supremacy Clause, of State law and a relevant federal regulation. We do not express any view herein with respect to what obligations should be favored and we reiterate and underscore that the best interest of the child is always paramount in any judicial determination of custody, support, and other matters involving minor children.

What is at issue in the case at hand is whether the legislature has evidenced an intent to include as child support the legal fees of counsel appointed to represent the interests of the minor child. In the final analysis, it is within the province of the legislature to decide that characterizing such legal fees as child support serves to promote the best interests of the child. Appellant Robert Martin Miller and appellee Mary Elizabeth Miller, husband and wife, were parties to a contentious divorce dispute in the Circuit Court for Montgomery County. Of the many issues involved, the most intensely litigated were those surrounding the custody of Joseph, the parties’ minor child.

As a result, the trial court appointed David S. Goldberg, Esquire, as guardian ad litem to protect the best interests of the child. This appeal pertains to the attorney’s fees recovered by Goldberg from his appointment on August 6, 1999 until his removal on March 26,2001. On November 8, 1999, Goldberg placed the parties’ settlement agreement regarding custody and visitation on the record. On November 17, 1999, Goldberg filed a Petition for Allowance of Counsel Fees, which the trial court granted by an order dated December 27, 1999.

Pursuant to that order, Goldberg received an award of $8,581.50 for time worked through November 8,1999. On February 18, 2000, appellee filed a Motion for Modification of Custody and Other Relief. Shortly thereafter, on April 3, 2000, she sought to compel a mental examination of appellant, to which Goldberg filed a response. At a status confer ²⁴³ ence held on April 12, 2000, the trial court explained that the Family Law Account, which had been the source of funds for Goldberg’s initial award, could not be accessed unless Goldberg was formally reappointed as guardian ad litem.

At that point, appellant’s counsel stated that his client would not consent to Goldberg’s reappointment. Days later, appellee filed a Petition for Reappointment of Guardian Ad Litem and Custody Evaluator, which was granted by the trial court by order dated June 2, 2000. On September 7, 2000, Goldberg filed a Petition for Allowance of Counsel Fees (From and After December 1, 1999), which appellant opposed. The petition was granted October 19, 2000, with the order to be submitted at a later date after a second hearing scheduled for February 23, 2001.

On February 27, 2001, after hearing the arguments of the parties, two judgments were entered in favor of Goldberg — one against appellee in the amount of $7,387.52 and another against appellant in the amount of $14,340.48. Appellant filed an appeal on March 23, 2001. On March 8, 2001, Goldberg wrote a letter to the trial court requesting the entry of a supplemental order regarding his attorney’s fees. Specifically, he sought an order characterizing his awards as child support.

The trial court granted his request, entering two orders dated March 26, 2001. The first order declared that Goldberg’s attorney’s fee awards, dated December 27, 1999 and February 27, 2001, were “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 ‘[cjhild [sjupport’ as set forth in 5 C.F.R. § 581.102 (d).” The second order terminated Goldberg’s appearance as guardian ad litem. Within ten days, appellant moved to vacate the supplemental orders. The motion was denied and, on April 24, 2001, appellant filed this timely appeal.

Appellant presents three issues on appeal, which we restate for clarity 1 as follows: ²⁴⁴ I. Did the trial court possess the authority to amend its December 27, 1999 order awarding attorney’s fees?

II

Did the trial court possess the authority to characterize an award of attorney’s fees to a guardian ad litem as child support?

III

Did the trial court possess the authority to award attorney’s fees to Goldberg for services rendered from December 1,1999 until March 26, 2001? We answer questions I and II in the negative and question III in the affirmative. We therefore reverse the trial court’s supplemental order and remand for further proceedings consistent with this opinion. DISCUSSION I Appellant contends that, pursuant to Md. Rule 2-535, the trial court did not have the authority to revise its December 27, 1999 judgment in favor of Goldberg because Goldberg’s letter to the court was not filed until March 8, 2001.

Goldberg concedes that more than thirty days passed between December 27, 1999 and March 8, 2001, but contends that, because it was filed within thirty days from the entry of the trial court’s February 27, 2001 order, the court possessed the necessary revisory power. Goldberg argues in support that [the trial court] was asked to decide whether or not the fees awarded to the guardian ad litem were child support for purposes of 5 C.F.R. § 581.102 (d). [Its] response was in the affirmative. It would make no logical sense to conclude that the fees awarded in the [February 27, 2001 order] were in the nature of child support, but that the fees awarded in the [December 27,1999 order] were not.... We disagree with this rationale. “The Maryland Rules of Procedure attempt to balance the court’s need for finality against the parties’ desire for ²⁴⁵ substantial justice.

Thus, the Rules permit the judge to revise a judgment[,] but only under certain specified conditions.” Office of People’s Counsel v. Advance Mobilehome Corp., 75 Md.App. 39, 44 , 540 A.2d 151 (1988). Pursuant to Rule 2-535(a), [o]n motion of any party filed within [thirty] days after entry of judgment, the court may exercise revisory power and control over the judgment and, if the action was tried before the court, may take any action that it could have taken under Rule 2-534. Although Goldberg’s letter was not a motion to revise per se, we nevertheless address it as a motion filed under Rule 2-535. Pickett v. Noba, Inc., 114 Md.App. 552 , 691 A.2d 268 (1997). “If the motion is made within [thirty] days of judgment, ‘the trial court possesses an extremely broad power of revision. ...’ ” People’s Counsel, 75 Md.App. at 44 , 540 A.2d 151 .

The key word, however, is “judgment.” Goldberg would have us hold that the rules permit a trial court to exercise its revisory power, as long as the motion is made within thirty days of any order, however, such a reading “flies in the face of the import of the rule and the cases that have developed under that rule.” Id. at 46 , 540 A.2d 151 . Therefore, as stated in our holding in People’s Counsel, supra, we decline to allow a trial court to revise a judgment if the motion to alter or amend is not made within thirty days of the objectionable judgment. See id. In order to have had the December 27, 1999 award modified or supplemented, Goldberg would have had to file a motion within thirty days of that date or before January 26, 2000.

Because the motion was not filed until March 8, 2000, however, the trial court’s modification of its December 27, 1999 award of attorney’s fees was a nullity. 2 We therefore reverse the trial court’s judgment entered March 26, 2001 in part. Goldberg’s December 27, 1999 award ²⁴⁶ of attorney’s fees is not “to be in the nature of child support recoverable ... within the definition of ‘[cjhild [sjupport’ as set forth in 5 C.F.R. §§ 581.102 (d).” II 3 Appellant contends that the trial court did not possess the power to characterize Goldberg’s award of attorney’s fees as child support, because Maryland law has established only a small number of “specifically enumerated categories of expenses [that] may be deemed child support expenses.” Attorney’s fees, appellant concludes, have not been included in that short list. Goldberg counters that the actions of the trial court' were authorized by 11 U.S.C. § 523 (a)(5) and 5 C.F.R. § 581.102 (d), which provide for the garnishment of wages for the payment of child support. We disagree with Goldberg’s position that 11 U.S.C. § 523 (a)(5) governs the case at hand.

We are persuaded, however, that, in conformity with 5 C.F.R. § 581.102 (d), the legal fee of a guardian ad litem is not included as one of the expenses expressly deemed by the Maryland legislature to constitute child support. It was, therefore, an abuse of discretion for the trial court to so characterize the legal fees. The Supreme Court has “held repeatedly that state laws can be pre-empted by federal regulations as well as by federal statutes.” See Hillsborough County v. Automated Medical Laboratories, Inc., 4 471 U.S. 707, 713 , 105 S.Ct. 2371 , 85 ²⁴⁷ L.Ed.2d 714 (1985)(citing Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699 , 104 S.Ct. 2694 , 81 L.Ed.2d 580 (1984); Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141, 153-154 , 102 S.Ct. 3014 , 73 L.Ed.2d 664 (1982); United States v. Shimer, 367 U.S. 374, 381-383 , 81 S.Ct. 1554 , 6 L.Ed.2d 908 (1961)). Pre-emption, however, only “invalidates state laws that ‘interfere with, or are contrary to,’ federal law.” Id. at 712, 105 S.Ct. 2371 (citing Gibbons v. ²⁴⁸ Ogden, 22 U.S. (9 Wheat.) 1, 211 , 6 L.Ed. 23 (1824)).

Therefore, in order to hold, as Goldberg urges, that 5 C.F.R. § 581.102 (d) is controlling in the instant case, we must necessarily conclude that Maryland law interferes with or is contrary to federal law concerning the garnishment of wages in the collection of child support. The pertinent federal law, in our view, does not conflict with Maryland law. We explain. In his brief, appellant relies on 5 C.F.R. § 581.102 (d) as it appeared prior to the March 26,1998 amendments promulgated by the Office of Personnel Management (OPM).

In the version upon which appellant relies, child support was defined as periodic payments of funds for the support and maintenance of a child or children, and subject to and in accordance with State or local law, includes, but is not limited to, payments to provide for health care, education, recreation, clothing, or to meet other specific needs of such a child or children; the term also includes attorney’s fees, interest, and court costs, if they are expressly made recoverable under a decree, order, or judgment issued in accordance with applicable State or local law by a court of competent jurisdiction. 5 C.F.R. § 581.102 (d)(1980). In the OPM’s revision of 5 C.F.R. § 581.102 (d), however, the language in italics above was excluded. The amended version of the regulation defines child support as the amounts required to be paid for the support and maintenance of a child, including a child who has attained the age of majority under the law of the issuing State, or a child and the parent with whom the child is living, 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)(1998)(emphasis added). As noted by appellant in his reply brief, however, the OPM revision also included an additional section, 5 C.F.R. § 581.307 , entitled “Compliance with Legal Process Requiring ²⁴⁹ the Payment of Attorney Fees, Interest, and/or Court Costs,” which states, in relevant part: Before complying with legal process that requires withholding for the payment of attorney fees, interest, and/or court costs, the governmental entity must determine that the legal process meets both of the following requirements: (a) The legal process must expressly provide for inclusion of attorney fees, interest, and/or court costs as (rather than in addition to) child support and/or alimony payments; (b) The awarding of attorney fees, interest, and/or court costs as child support ... must be within the authority of the court, authorized official, or authorized State agency that issues 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 and/or alimony if such order is not in violation of or inconsistent ivith State or local law, even if State or local law does not expressly provide for such an award. (Emphasis added.) Otherwise stated, a court has the authority to characterize attorney’s fees as child support in the absence of express state statutory authority, but there is no such authority if it conflicts with State law. Pursuant to subsection (a) above, a state statute “must expressly provide for inclusion of attorney fees ... as ... child support,” and may not be stated as an “addition to” a child support award. We look to the relevant Maryland statute for guidance.

Maryland Code (1999 Repl.Vol.), Fam. Law (F.L.) § 12-204, entitled “Determination of Child Support Obligation,” provides that “ft]he basic child support obligation shall be determined in accordance with the schedule of basic child support obligations [the “Guidelines”].... ” F.L. § 12-204(a). As we have previously explained, “there is a rebuttable presumption that the amount of child support which would result from the application of the child support guidelines ... is the correct amount of child support to be awarded.” Horsley v. Radisi, 132 Md.App. 1, 24 , 750 A.2d 692 (2000) (citations omitted). Because F.L. § 12-204 fails to ²⁵⁰ expressly provide for the inclusion of attorney’s fees in a child support award, the characterization of such as child support fails to comply with the relevant legal processes, as set forth in 5 C.F.R. § 581.307 (a).

A parent’s basic financial obligations may be increased, however, to cover certain specifically enumerated expenses, such as “child care expenses,” see F.L. § 12-204(g), “extraordinary medical expenses,” see F.L. § 12-204(h), and “school and transportation expenses,” see F.L. § 12-204(i). In Hors-ley, we concluded that “the plain and unambiguous language of the statute authorizes the court to supplement the Guidelines obligation only for certain categories of expenses----” Horsley, 132 Md.App. at 26 , 750 A.2d 692 . In the case at hand, however, we must determine whether we can infer, from the failure of the State legislature to include attorney’s fees in the list of specifically enumerated additional expenses, that such an expense was intentionally omitted. In addressing a similar issue, the Maryland Tax Court, unable to accept the State’s argument that specifically enumerated exceptions in a federal statute were “surplusage and not intended as an exhaustive list,” opined as follows: [T]he State’s argument implies that Congress failed to accurately express its true intent through the words it in fact used in drafting the statute.

Although this is not impossible, we are highly reluctant to attempt to second guess Congress. Unless there is strong evidence of a mistake or ambiguity we will not tamper with the plain meaning of the statute. Maryland National Bank v. State Dept. of Assessments & Taxation, Misc. No. 549 (Md. Tax Court, Dec. 13, 1985).

In like manner, we decline to hold that the legislature contemplated further exceptions to F.L. § 12-204, yet failed to include them in the final embodiment of the law. Rather, we hold the characterization of legal fees as child support to be “inconsistent with State or local law,” pursuant to 5 C.F.R. § 581.307 and, therefore, invalid. ²⁵¹ Faced with a dearth of textual directive, we employ normal rules of statutory construction. See e.g. Lindh v. Murphy, 521 U.S. 320 , 117 S.Ct. 2059 , 138 L.Ed.2d 481 (1997).

One of those rules — negative implication or expressio unis est exclusio alteris — provides us with the guidance necessary to analyze the intent of the State legislature. The phrase, meaning “the expression of one is the exclusion of another,” was employed by the Supreme Court in Lindh . There, the Court reasoned that, when Congress included particular language in one section of a statute, but omitted it in another section of the same act, it could be presumed that Congress acted intentionally and purposely in the disparate inclusion or exclusion. See id.

See also Sandoval v. Reno, 166 F.3d 225 (3rd Cir.1999). It would appear that F.L. § 12-103 would provide further guidance, as it pertains to the trial court’s authority to award costs and counsel fees when a party to the divorce (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. Reliance on this statute merely begs the question, however, as it provides us with no more direction than F.L. §