DAVID A., ET AL.
Circuit Court for Baltimore City No. 24-D-17-000673
C.J., Meredith, Raker, Irma S. (Senior Judge, Specially
appeal requires us to determine: (1) whether a de
facto parent is eligible for an award of attorney's
fees and costs incurred in a dispute over custody and
visitation; and (2) whether such an award can be made against
a non-parent who intervenes in such a dispute. We conclude
that, under § 12-103(a)(1) of the Family Law Article
(Repl. 2012; Supp. 2018), a de facto parent is
eligible for such an award and an intervening non-parent can
be ordered to pay such an award.
David and Jennifer A. ask us to determine whether the circuit
court erred in ordering them to pay the attorney's fees
incurred by the appellee, Karen S., in connection with a
battle over custody of five-year-old A.W.
("Child"). The custody battle involved four at least
nominally-distinct parties: (1) the A.s, Child's paternal
grandparents;(2) Ms. Karen S., Child's maternal
grandmother ("Ms. Karen S."); (3) Matthew W.,
Child's father ("Father"); and (4) Sara S.,
Child's mother ("Mother"). After a custody
hearing, the Circuit Court for Baltimore City issued a
comprehensive order in which the court concluded, among other
things, that Ms. Karen S. was entitled to an award of
attorney's fees and costs against the A.s under §
12-103(a)(1). The court subsequently set the amount of the
award at $57, 289.32, the entire amount incurred by Ms. Karen
S. (the "Fee Award").
challenge the Fee Award on five grounds. In addition to their
contention that § 12-103(a)(1) authorizes an award of
attorney's fees only by one parent against another, the
A.s argue that the circuit court erred in (1) ordering them
to pay all of Ms. Karen S.'s attorney's fees and
costs, rather than a portion of them; (2) determining that
Ms. Karen S. had not waived her claim for attorney's
fees; (3) finding that the A.s lacked substantial
justification for bringing their claims; and (4) failing to
reduce the Fee Award in light of sums the A.s had previously
paid to support Child. Finding no error or abuse of
discretion as to any of these determinations, we affirm.
initiated this litigation in February 2017 by filing a
complaint for sole legal and physical custody of Child,
naming as defendants Ms. Karen S. and Mother. Two days later,
Ms. Karen S. brought an ex parte emergency custody proceeding
in Harford County, through which that court granted her
temporary custody of Child. See Case No.
12-C-17-000450 (Cir. Ct. Harford County). The two actions
were later consolidated in the Circuit Court for Baltimore
complaint, Father alleged that Mother was a drug user who
"deliberately committed various acts of destruction . .
. in the presence of [Child]" and was unfit to have
custody. Father also alleged that Ms. Karen S. had taken
Child from his residence, which had deprived Father of his
parental rights, and that she refused to allow him or the A.s
access to Child.
April 5, 2017, the A.s moved to intervene. In their motion
and their cross-complaint for custody, visitation, and child
support, the A.s alleged that they had participated in
raising Child, that Child had a deep attachment to them, and
that they had provided financial support to Child, Father,
and Mother. The A.s "den[ied] that [Father] is not a fit
parent," but sought "full legal and full physical
custody of [Child], in the event that [Father] is found by
this Court to be unfit for custody." The A.s also
alleged that Ms. Karen S.'s home was not fit for Child
and that Ms. Karen S. herself "is not a fit and proper
person to have custody or visitation" with
2018, the court held a four-day trial in which it heard
testimony from, among others, Mother, Father, Ms. Karen S.,
Ms. A., and Mr. A. All parties except Mother were represented
by counsel. Testimony revealed that Mother and Father had
both abused drugs, had physical altercations with each other,
relied on the A.s and Ms. Karen S. for financial support and
childcare, and lacked steady employment. Mother testified
that she had a drug addiction, but had been clean for 15
months. Father denied having a drug addiction.
testimony at trial was generally positive with respect to the
relationship between Child and both Ms. Karen S. and the
A.s., as well as the support the grandparents had provided
for and to Child. Notably for our purposes, Ms. A.'s
trial testimony contradicted that of her deposition as well
as the allegations of her cross-complaint in that she
admitted at trial that: (1) Father is not fit to have custody
of Child; and (2) Ms. Karen S. is fit to have custody. Ms. A.
attributed the change in her testimony to "something
wrong in communication with [her] counsel" during her
deposition, but she acknowledged that she knew she was under
oath at the time.
and Ms. Karen S. each testified at trial regarding the state
of their respective finances. Mr. A. testified that he had
paid cash for a home he bought for Father's family, that
he earned "about $2, 900, 000" in gross income the
previous year, and that he owned a beach property and other
significant assets. By contrast, Ms. Karen S. testified that
she had been forced to "cash out" her retirement
assets to pay legal fees of approximately $19, 500, and that
she had no funds available to pay approximately $23, 740 in
outstanding legal fees.
making her pro se closing argument, Mother admitted
to her drug addiction and to her current unfitness to have
custody over Child. She argued that the A.s should not have
custody over Child because of their history of ignoring and
enabling Father's ongoing drug addiction, which left
Child in a "dangerous environment for three years,"
and she implored the court to "protect my son."
Karen S. argued that Mother and Father were both unfit and
that it was in Child's best interest for her to have sole
custody. Like Mother, Ms. Karen S. argued that the A.s had
ignored signs of Father's addiction for years and
continued to enable his addiction. Indeed, she observed, the
A.s had contended that Father was a fit parent in
supplemental interrogatory responses filed just five days
earlier. Ms. Karen S. asked for custody of Child "just
until these parents can get on their feet." She also
requested that the court order the A.s to make "a
contribution to [her] attorney's fees."
A.s' closing argument, echoing Ms. A.'s testimony,
departed from the positions they had taken leading up to
trial in two critical respects. First, they admitted that
Father was "unfit to have custody and there are a whole
series of reasons why." Second, they admitted that Ms.
Karen S. is fit. They also, however, asked the court not to
penalize them for having missed the signs of their son's
addiction and sought shared custody of Child. The A.s also
asked that the court not enter an award of attorney's
fees against them, contending that they had been "very
kind and good . . . in supporting this family" and
"that they had substantial justification for
participating in this litigation."
his own counsel's closing argument, Father made a
statement in which he admitted, for the first time, that he
had a drug addiction and required help to get treatment. His
counsel then acknowledged Father's present unfitness and
asked the court to implement the shared custody plan
advocated by the A.s.
conclusion of trial, the court announced its findings and
conclusions from the bench, including:
• Mother and Father both have drug addictions, but were
at different stages in their recoveries. Both are unfit to
• Mother, who the court found to be credible, had been
clean since February 2017 and was on the road to recovery.
However, Mother had not "been clean for long
enough" or established a long enough track record for
the court to be convinced that it was in Child's best
interest for her to have custody.
• Father, who the court did not find to be credible
except for his belated admission that he was a drug addict,
had not yet begun his recovery.
• Ms. Karen S. and her husband, Mr. S., were both
credible, cared deeply for Child, and were capable of taking
care of him. Ms. Karen S. had acted in Child's best
interests in removing him from the dangerous environment he
had been living in and obtaining a court order allowing her
to take over his care.
• For the last year, Ms. Karen S. had been Child's
de facto parent.
• As a result of the parents' addictions,
exceptional circumstances existed to award custody to a
• Although the A.s love Child, the court found much of
their testimony incredible, which raised doubts regarding
their "character and reputation." The court
identified a number of inconsistencies in their testimony and
in the positions they had taken in the case, including as to
their alleged lack of awareness of Father's addiction,
their prior claims that Father was fit and that Ms. Karen S.
was unfit, and Ms. A.'s testimony regarding signing
documents under oath that included statements with which she
• Although the A.s were in position to give Child
"an exceptional financial future," Ms. Karen S. and
her husband "can meet his every need . . . ."
court reviewed all of the required statutory factors and then
awarded Ms. Karen S. sole legal custody and primary physical
custody of Child, with the A.s having visitation every other
weekend and on certain holidays. The court allowed Mother to
have unsupervised visitation with Child as long as she
continues to seek treatment and have clean drug tests, and
stated that Father would eventually be allowed the same
access if he also receives treatment and has consistent clean
Attorney's Fees Award
subsequent written order that restated many of these findings
and conclusions, the court also concluded that Ms. Karen S.
was entitled to an award of attorney's fees and costs. In
a simultaneously-filed memorandum opinion, the court
identified the three factors it was required to 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." Reviewing each factor in detail, the court
made the following findings and conclusions:
• Father and Mother had both been supported by their
respective parents and did not have the financial ability to
pay any award of attorney's fees.
• The A.s "maintain an upper-class standard of
living" and own "numerous and substantial financial
assets." Ms. Karen S. "maintains a middle-class
standard of living" that "pales in comparison"
to the financial status of the A.s.
• Ms. Karen S. "is in need of and is entitled to
the reimbursement of the fees incurred in this matter."
She "has exhausted most of her retirement savings for
this case" and still owes approximately $23, 000 to her
counsel. She "is in need due to the financial burden of
defending this case."
• Ms. Karen S. was justified in defending this
proceeding. When the lawsuit was filed, she was Child's
de facto parent and there was no evidence that she
was unfit. In light of the evidence regarding the
dangers to Child if he had been allowed to stay in the
custody of Father-even under the supervision of the A.s-Ms.
Karen S. "had more than a substantial basis for
defending the action."
• The A.s "did not have substantial justification
for bringing the action." Until their opening statement
at trial, they claimed that Father was fit to have custody.
The court found their testimony explaining that contention to
be incredible and so doubted "the veracity of their
stated reason to intervene in this case." The court
concluded that their intervention had "led to a
substantial amount of additional preparation and work for
[Ms. Karen S.]'s counsel."
court concluded that Ms. Karen S. was entitled to an award of
attorney's fees and costs to be paid by the A.s. The
court ordered her to submit an affidavit and memorandum
"with the final statement of account balance and an
explanation of all costs, along with a description of the
complexity of this case and a summary of her