Poole v. Bureau of Support Enforcement Ex Rel. Roebuck

Battaglia, J. ²⁸² On October 21, 2016, the Circuit Court for Carroll County found appellant, Jason Andrew Poole ("Father"), in constructive civil contempt 1 of a court order to pay child support for his son, to appellee, Jessie Roebuck ("Mother"). The court ²⁸³ awarded attorney's fees and expenses to Mother. On appeal, Father presents one question for our review: Did the trial court err in awarding attorney's fees in a contempt action? For the reasons set forth below, we answer the question in the negative and affirm the award of attorney's fees.

FACTUAL AND PROCEDURAL BACKGROUND In June of 2015, the Carroll County State's Attorney's Office, on behalf of the Bureau of Child Support Enforcement, filed a Petition for Contempt and Incarceration 2 of Father for failing to comply with a consent order dated April 24, 2012, requiring him to pay $300.00 per month for child support and $10.00 per month toward arrearages, which, at that time, amounted to $20,517.09. Because Mother was employed, though, at the Bureau of Child Support Enforcement of the Carroll County State's Attorney's Office, the court, upon request, appointed a Special Prosecutor ⁷⁷⁰ from the Frederick County State's Attorney's Office. During the contempt hearing later that year, Father stipulated that he was in contempt of the consent order. The court accepted Father's stipulation, found him in constructive civil contempt, and issued an order finding that Father had accrued outstanding arrearages in the amount of $21,417.90.

The order provided that Father could purge the contempt by paying $300.00 per month for support of the child and $10.00 per week toward arrearages. The court scheduled a review hearing for November 12, 2015. 3 ²⁸⁴ Because of continuing concerns about Mother's employment with the Carroll County State's Attorney's Office, that Office requested appointment of a Special Counsel for the Office of the Attorney General, which was granted by the court. Despite that appointment, Father insisted that there continued to be a conflict of interest in the joint representation of the Bureau of Support Enforcement and Mother. As a result, Mother retained private counsel, Christy Saunders, to represent her.

Review hearings occurred on July 21, October 14, and October 21, 2016. Evidence adduced at the hearings reflected that from the date of the initial finding of contempt to October of 2016, Father had paid only $2,104.20 of the $4,340.00 that he owed. Christopher Balog, Father's employer, testified that he had employed Father for the past six months as a landscaper, that Father had worked three to five days per week, and that he paid Father between $50 and $100 per day in cash. Text messages from Father to his girlfriend, Sherry Few, were introduced into evidence, revealing that Father had stated that he had "hoard[ed] cash for 3 months only paying 1400 in child support ... legally getting away with shorting [Mother] on child support while being in contempt," and that he had "planned this for years ... legally getting away with burning [Mother] on 20 grand." Father's text messages to Ms. Few also indicated that he worked "7 days a[ ] week and only report[ed] 300," and that he has "4800 in a bank account right now," although "no bank [account] exists in [his] name" because he put his bank account in someone else's name when he "seen these interrogatories coming a mile away." Additional text messages from Father to Ms. Few indicated that Father had attended the contempt hearing with "3100 dollars in [his] pocket, 2100 in left pocket 1 grand in right," but that he had no intention of "giving [Mother] shit until them cuffs come out[.]" ²⁸⁵ Mother testified that she incurred attorney's fees and expenses related to Ms. Saunders' representation, as a result of Father "trying to make an issue out of [her] working where [she does]." An itemized statement of Ms. Saunders' professional services was introduced into evidence, reflecting a total amount of $3,553.76; representing $2,936.00 in attorney's fees and $617.76 in expenses (relating to process serving fees, copies and postage).

The court determined that Father had failed to pay the purge amount since the time of the August of 2015 finding of contempt, that Father had the present ability to pay the purge amount, and that, based on the evidence, Father had an intent "to hide his income to avoid payment." The court ordered Father detained at the Carroll ⁷⁷¹ County Detention Center for a period of 120 days, or until he paid the purge amount of $2,235.80, representing the remainder of the unpaid purge amount ordered at the August of 2015 contempt hearing. The court also awarded Mother attorney's fees and expenses in the amount of $3,553.76 and entered judgment against Father in that amount. In ruling on Mother's request for attorney's fees, the court explained its award as follows: Also pending before the Court [is] [Mother's] petition through counsel for attorney's fees. I have reviewed that, I forget what exhibit it was, I think it was defense 5.

I reviewed it and found all the charges that were set forth in that exhibit to be fair and reasonable for the Carroll County community. And frankly the bill wasn't really seriously challenged during the testimony in the case. Family Law Article Section 12-103 permits an award of counsel fees where someone is seeking to recover child support or arrearages. I find that [Mother] has substantial justification in continuing, she didn't initiate the proceeding but she continued it and chose to have private counsel, which is her right.

And I find that based on the situation of the financial status of the parties that even after the purge figure, [Father] has ²⁸⁶ sufficient resources where he would be able to pay such an award. Therefore, I will award the counsel fees as requested in the amount of $2,936 plus expenses of $617.76, for a total award to [Mother] of $3,553.76. Father was subsequently released from jail following his payment of the purge amount, and timely noted this appeal. 4 DISCUSSION Father does not challenge the circuit court's order finding him in contempt; rather, he challenges only the award of attorney's fees to Mother in the amount of $3,553.76. 5 He contends that attorney's fees are not available in a contempt action, pursuant to Maryland Rule 15-207. Mother acknowledges that Rule 15-207 does not provide for the recovery of attorney's fees, but she asserts that the court did not err in awarding attorney's fees in this action pursuant to the provisions of Section 12-103 of the Family Law Article of the Maryland Code, (1984, 2012 Repl.

Vol., 2014 Supp.) 6 as that statute explicitly provides for the recovery of attorney's fees in connection with proceedings to enforce child support orders. The issue is queued up, then, as to whether the provisions of Section 12-103 permitting the recovery of attorney's fees in child support enforcement actions are applicable in a contempt action governed by Rule 15-207(e). Our determination of this issue is subject to de novo review. See Stevens v. Tokuda , 216 Md. App. 155 , 167, 85 A.3d 321 (2014) (stating that issues ²⁸⁷ requiring this Court "to undertake a legal interpretation of Rule 15-207" are reviewed de novo ) (citing Rawlings v. Rawlings , 362 Md. 535 , 555 n.19, 766 A.2d 98 (2001) (noting that issues of interpretation ⁷⁷² of Maryland Rules are treated the same as statutory interpretation issues).

Rule 15-207(e)"applies to proceedings for constructive civil contempt based on an alleged failure to pay spousal or child support[.]" Md. Rule 15-207(e)(1). If the party bringing the contempt action proves "by clear and convincing evidence that the alleged contemnor has not paid the amount owed, accounting from the effective date of the support order through the date of the contempt hearing," Md. Rule 15-207(e)(2), the burden shifts to the alleged contemnor to prove: by a preponderance of the evidence that (A) from the date of the support order through the date of the contempt hearing the alleged contemnor (i) never had the ability to pay more than the amount actually paid and (ii) made reasonable efforts to become or remain employed or otherwise lawfully obtain the funds necessary to make payment, or (B) enforcement by contempt is barred by limitations as to each unpaid spousal or child support payment for which the alleged contemnor does not make the proof set forth in subsection (3)(A) of this section. Md. Rule 15-207(e)(3). If the court makes a finding of constructive civil contempt, it must issue a written order specifying: (A) the amount of the arrearage for which enforcement by contempt is not barred by limitations, (B) any sanction imposed for the contempt, and (C) how the contempt may be purged.

If the contemnor does not have the present ability to purge the contempt, the order may include directions that the contemnor make specified payments on the arrearage at future times and perform specified acts to enable the contemnor to comply with the direction to make payments. Md. Rule 15-207(e)(4). Rule 15-207(e) by its terms, however, does not provide for the recovery of attorney's fees in civil contempt proceedings. ²⁸⁸ Although Rule 15-207(e) does not contain a provision for attorney's fees, we consult those rules or statutes governing the underlying action to determine the context under which attorney's fees may be available. See Md. Rule 15-206(a) ("A proceeding for constructive civil contempt shall be included in the action in which the alleged contempt occurred.").

See also Solomon v. Solomon , 118 Md. App. 96 , 113-14, 701 A.2d 1199 (1997) (holding that the use of the mandatory term "shall" in Rule 15-206(a) required that petition for contempt for violation of terms of a custody and visitation agreement be filed in the court where the underlying divorce judgment was issued). Here, the underlying action is governed by Sections 12-101 et seq . of the Family Law Article. Section 12-103 provides for the recovery of attorney's fees in child support cases: Award of costs and fees (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; 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. Conditions for award of costs and fees (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 ⁷⁷³ (3) whether there was substantial justification for bringing, maintaining, or defending the proceeding.

Whom costs and fees awarded to (c) Upon a finding by the court that there was an absence of substantial justification of a party for prosecuting or ²⁸⁹ 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. Prior to the enactment of Section 12-103, the right of recovery of attorney's fees in child support cases in Maryland was originally derived from the common law obligation of a father to support his minor child in the form of all necessaries during the marriage and following the divorce of the parents. See Carter v. Carter , 156 Md. 500 , 144 A. 490 (1929). In Carter , the Court of Appeals held that a divorced wife was not entitled to recover attorney's fees "arising from her effort to prevent the father from obtaining the exclusive custody of [their minor] child." 156 Md. at 509 , 144 A. 490 .

The Court, acknowledged, in dicta, however, that "by reason of his parental obligation," a father "remains primarily, and the mother secondarily, bound to support and maintain the [child]," for "necessaries," which may include attorney's fees if such services are "reasonable and necessary for the protection or enforcement of the property rights of the minor or his personal protection, liberty, or relief." Id. at 508-09 , 144 A. 490 . The Court explained, however, that "[t]his obligation is at law and not in equity." Id. at 508 , 144 A. 490 . In Frank v. Frank , 203 Md. 361 , 369, 101 A.2d 224 (1953), the Court concluded, consistent with the dicta expressed in Carter , that in the absence of an agreement, an equity court did not have authority to order the father to pay his child's necessaries in the form of medical expenses. The Court explained that "[t]he husband's liability, to pay for necessaries furnished his minor child, is to the supplier in an action at law, and not enforceable by application of the wife to the divorce court." Id.

As a result, though necessaries, including attorney's fees, were recoverable in custody and support cases, attorney's fees often were not awarded because absent an agreement, they were recoverable only in actions at law. The Court of Appeals, in Price v. Price , 232 Md. 379 , 385, 194 A.2d 99 (1963), relying on Carter and Frank , further limited a wife's ability to recover attorney's fees in a child ²⁹⁰ support action, holding that because the attorney's fees were not covered or provided for by the separation agreement or divorce decree, the wife must bring a separate action at law to recover those fees. Despite its holding, the Court recognized that "[l]ogically, it would seem that this obligation could be enforced in equity," but it declined to abandon the "decisions of this Court," holding "that this liability of the father must be enforced at law." Id. at 384 , 194 A.2d 99 . The Court suggested, however, that "[i]f a contrary result is preferable, the Legislature may change the rule for the future." Id. at 385 , 194 A.2d 99 .

The General Assembly apparently did, in fact, prefer a different result, as evidenced by the passage of the Act of 1967, Chapter 488. See Peterman v. Peterman , 14 Md. App. 310 , 313-14, 286 A.2d 812 (1972).