Van Schaik v. Van Schaik

CATHELL, Judge. We shall reverse the decision of the trial court in the case sub judiee. We explain. Robert Van Schaik, appellant, contends on appeal that the trial court improperly appointed an attorney for a minor child under the provisions of the Family Law Article, section 1-202.

He asserts the appointment was in error because the parties to this domestic issue had agreed on all issues as to custody, visitation, and support and that agreement had been filed in the proceedings prior to the court’s appointment of counsel. 1 He also questions the authority of the trial court to mediate and/or decide minor property disputes brought to the attention of the court by the counsel appointed for the child. Additionally, he raises questions as to the propriety of the proceedings themselves. He argues that the attorney appointed to represent the minor child of the parties made ex parte communications to the trial court. Appellant further alleges that the trial court sealed the ex parte reports, concealing them from him, and then relied on them in rendering its decision.

Finally, he asserts that he was deprived of being a custodial parent without any notice that a change in custody was sought nor an opportunity to be ⁷²⁹ heard on that issue. He is correct with respect to each of these complaints. The Facts Sally Ann Van Sehaik 2 filed a Bill of Complaint on November 4, 1987, for a divorce from appellant alleging several grounds. Appellant answered generally denying the allegations of the complaint.

Thereafter, a supplemental complaint was filed by him on March 9,1990. It alleged as grounds that the parties had voluntarily separated and that he and his wife had entered into a separation and property settlement agreement. The agreement was attached to the Supplemental Bill and appellant requested that it be incorporated into any judgment of divorce. That agreement, dated January 25, 1990, was signed by both parties and included an arrangement as to custody, visitation, and support of the minor child of the parties, then I2V2 years old.

It provided for joint legal custody of the child with the primary custodian to be the mother and provided for reasonable visitation and support. After the agreement had been filed with the court, the trial judge “[ujpon consideration of information recently brought to the Court’s attention” appointed counsel for the child. This occurred without a request from either party being reflected in the record. 3 ⁷³⁰ Thereafter, the child’s attorney requested a hearing “with regard to visitation and other issues.” The trial court then scheduled a hearing notifying the parents by notice that provided: HEARING ON VISITATION AND CHILD’S POSSESSIONS has been scheduled for March 18, 1991 from 9:00 a.m. to 11 a.m. Upon receipt of the notice, appellant’s then counsel notified appellant, contacted the counsel for the child and met with appellant.

As a result of these contacts, appellant and his counsel understood that the purpose of the hearing involved minor visitation and property issues. Because appellant did not seriously contest the visitation and property issues, a decision was made that appellant would not need assistance of counsel at the hearing and, accordingly, he appeared pro se. Ms. Van Schaik also appeared without counsel. The only attorney present was the attorney for the child.

The hearing took place and at its conclusion the court terminated appellant's joint custody rights 4 and ordered, among other things, that he deliver the child’s bike to Seaford, Delaware, and that he return money to the child. After rendering his decision, the trial judge directed the clerk of court to seal a report that had been made to the court by the child’s attorney and thereafter refused to unseal that report. Appellant alleges, and the record supports the allegation, that the trial court relied in part on that sealed report in the rendering of its decision. It is from all of these orders that Van Schaik appeals. ⁷³¹ May an attorney be appointed pursuant to Family Law Article section 1-202 to represent a child in a domestic case where there is no contest as to custody, visitation, or support?

The provision for the appointment of an attorney for a minor child in domestic cases was first enacted in 1976. The purpose clause of the act stated: For the purpose of providing for the appointment ... of attorneys for minors in certain domestic cases in which the issue of custody, visitation rights, or the amount of support is contested---- Act of May 4,1976, ch. 250,1976 Md.Laws 759, 759 (codified at Md.Code Ann., Cts. & Jud.Proc. § 3-604) (emphasis added). The act added a new section to the Courts and Judicial Proceedings Article, section 3-604. This section provided: The court, for good cause, may appoint an attorney to represent a minor in any action ... in which the issue of custody, visitation rights, or the amount of support is contested____ Md.Code Ann., Cts. & Jud.Proc. § 3-604 (repealed 1984) (emphasis added).

The current statute is now found in section 1-202 of the Family Law Article. It provides in pertinent part: In an action in which custody, visitation rights, or the amount of support of a minor child is contested, the court may: (1) appoint to represent the minor child counsel who may not represent any party to the action---- Md.Code Ann., Fam.Law § 1-202 (1991) (emphasis added). As we initially indicated, a Supplemental Bill of Complaint was filed by Van Schaik on March 9, 1990. It had attached thereto a “Marital Separation Agreement” dated January 25, 1990.

That agreement was “to be made a part” of the Supplemental Complaint. It provided that: The minor child ... shall be in the joint custody of the parties, and shall have his primary residence with the ⁷³² Wife____ The Husband shall have ... reasonable visitation ____ The Husband shall pay to the Wife for the support and maintenance [of the child] the sum of $75.00 per week____ The agreement also contained other provisions as to the duties and obligations of the parties with respect to the child. This agreement was voluntarily entered into by the parties, each of whom was represented by separate counsel. At that time, there were no contested custody, visitation, or support issues.

Thereafter, the court, on March 24, 1990, stated that it was acting “[u]pon consideration of information recently brought to the court’s attention” and appointed counsel to represent the child. It is clear that at the time the trial judge appointed counsel, there were no issues as to custody, visitation, or support then being contested by the parties. Those problems had been resolved to their satisfaction. It is equally clear that, pursuant to the Family Law Article, only the parents could have then qualified as “contestants.” § 9-201.

While we do not normally review portions of the record not contained in the briefs, appendices and extract, Maryland Rule 8-501, under the unusual circumstances of this case, we have chosen to do so. Our review indicates that in a response filed on May 4, 1990, to a motion made by counsel for the child for the psychological and orthodontic evaluation of the child, appellant, by his counsel, said: 1. Robert Van Schaik has no objection to the appointment of an attorney to represent the interests of the minor child and no objection to the procuring of an independent psychological evaluation. * * * # * * 3. That the costs of the matter related to the appointment of an attorney and any other costs related to psychological evaluation should be determined by the Court after a proper hearing____ ⁷³³ Not only did appellant not object to the initial appointment of counsel for the child; he, as we have indicated, explicitly consented.

Furthermore, he consented subsequently to counsel’s motion for evaluations. At oral argument before us, appellant asserted that his consent to her appointment, and her appointment, automatically terminated at the time of the granting of the divorce. We disagree. Not only does the statute contemplate that the appointment continues past the date of the divorce if conflicts as to custody, visitation, and support remain, a clear inference existed that the evaluations which were pertinent to appointment of counsel for the child (and appellant’s consent) might well not be completed by the time of the granting of the divorce.

That inference is supported by the decree in which the trial judge ordered that all matters relating to the status of the child would be determined “subsequent to a report and recommendations by the attorney representing the interests of the minor child____” It is clear that the evaluations could not have been contemplated to have been completed by the date of the divorce decree, i.e., May 25, 1990. Thus, we hold that appellant waived his right to object to the initial appointment of counsel to represent the child and that the waiver extends to raising objections on appeal to her representation during the period of the post-decree evaluations and recommendations. 5 We hasten to add, however, that as we view the statute it does not explicitly afford to the trial court, in the absence of contested issues, the power to appoint permanent counsel for a child under 16, absent the consent of the parties to a case. May the trial court order a party to pay counsel fees after the divorce has been granted, where there are no contested issues of custody, visitation rights, or amount of support? ⁷³⁴ As we have indicated, the appellant consented to the appointment of an attorney for the minor child. At the same time he consented to the orthodontic and psychological evaluations, he also agreed that the costs of the evaluation and attorney fees “should be determined by the Court after a proper hearing____” We perceive no error in the trial court’s assessment of the child’s attorney’s fees.

Was the trial court’s involvement in the resolution of minor disputes between parent and child in regards to personal property appropriate? As we read section 1-202, it authorizes counsel to be appointed to represent the interests of the child in respect to custody, visitation, and support. It does not by its terms, nor do we believe by implication, permit trial courts to appoint counsel to represent, during divorce proceedings, the interests, if any, of children with respect to other issues such as replevin, conversion, or the return of property. 6 The resolution of minor property issues, at the sole request of counsel for the minor child, is not only wasteful of the court’s resources, but is not, as we perceive it, consistent with the purposes of the statute which provides for the appointment of counsel for the child only in contested custody, visitation and support cases. Accordingly, we hold that the attorney appointed for the infant, pursuant to section 1-202, lacked authority under that statute to initiate a proceeding for recovery of the child’s property.

The court, therefore, was in error in ordering, in the proceeding initiated solely by counsel on behalf of the child, that ⁷³⁵ appellant had to deliver the bicycle to Seaford and to remit to the child’s attorney $12 then in possession of appellant. We note that the appointment of the child’s counsel as trustee through which bills are to be sent and sums received for the benefit of others was, in our view, under the circumstances of this case, unnecessary, undesirable, and unwarranted. We shall, accordingly, vacate the trial court’s order designating her as trustee. There is a practical limit to the extent to which the court can, and ought to be involved in relatively minute matters in domestic cases.

The limit, as we see it, does not extend to appointing an attorney representing a child as some sort of conduit through which the bills and payments of the parents are to be funnelled. Were the ex parte communications by counsel for the minor child appropriate? The child’s counsel, in her report to the trial judge, stated that her “concern is that [the child] will suffer the