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Poole v. Bureau of Support Enforcement

Court of Special Appeals of Maryland

August 28, 2018

JASON ANDREW POOLE
v.
BUREAU OF SUPPORT ENFORCEMENT O/B/O JESSIE ROEBUCK

          Circuit Court for Carroll County Case No. 06-C-03-037999

          Berger, Arthur, Battaglia, Lynne A. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Battaglia, J.

         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 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 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]

         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[.]"

         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 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 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 (2014) (stating that issues requiring this Court "to undertake a legal interpretation of Rule 15-207" are reviewed de novo) (citing Rawlings v. Rawlings, 362 Md. 535, ...


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