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David A. v. Karen S.

Court of Special Appeals of Maryland

July 31, 2019


          Circuit Court for Baltimore City No. 24-D-17-000673

          Fader, C.J., Meredith, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.


          Fader, C.J.

         This 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.

         Appellants 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").[1] The custody battle involved four at least nominally-distinct parties: (1) the A.s, Child's paternal grandparents;[2](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").

         The A.s 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.


         Father 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 City.

         In his 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.

         On 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 Child.[3]

         The Trial

         In May 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.

         The 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.

         The A.s 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.

         In 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."

         Ms. 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."

         The 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."

         Before 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.

         At the 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 have custody.
• 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 non-parent.
• 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 disagreed.
• 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 . . . ."

         The 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 drug tests.

         The Attorney's Fees Award

         In a 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.[4] 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."

         The 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 ...

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