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Guillaume v. Guillaume

Court of Special Appeals of Maryland

October 30, 2019


          Circuit Court for Montgomery County Case No. 138753FL

          Reed, Beachley, Gould, JJ.

          OPINION [*]

          Beachley, J.

         In this appeal, Dominique Guillaume ("Father") challenges the decision of an in banc panel in the Circuit Court for Montgomery County which reversed the trial court's contempt finding against Chantal Guillaume ("Mother"). Father initially asserts that the in banc panel did not have jurisdiction to entertain Mother's request for in banc review. Alternatively, Father argues that, assuming the in banc panel had jurisdiction to hear Mother's appeal, it erred by vacating the trial court's $35, 000 attorney's fee award against Mother. We conclude that the in banc panel had jurisdiction to consider Mother's appeal, and that it did not err in vacating the attorney's fee award and remanding the case for further proceedings.


         The parties are the parents of three children. On May 10, 2017, the parties executed a "Memorandum of Agreement," which, inter alia, resolved legal and physical custody of the children, child support, alimony, and some property issues. On May 12, 2017, the court entered a consent order that incorporated the terms and provisions of the Memorandum of Agreement.

         By October 2017, both parties had filed petitions for contempt. Father's contempt petition alleged that Mother violated the joint legal custody provisions of the consent order because she "failed and refused to include [Father] in decision-making regarding the minor children." The specifics of Father's allegations of contempt are immaterial to our resolution of his appeal, but they included: 1) Mother's failure to inform Father that she planned to move the children out of Montgomery County and 2) Mother's failure to inform Father of important educational and medical decisions involving the children. Mother's contempt petition alleged that Father violated the consent order by failing to apply for tuition benefits available through his employment with the International Monetary Fund on behalf of the parties' eldest child.

         After a two-day hearing on both petitions, the circuit court took the matters under advisement. On February 9, 2018, the court delivered a bench opinion, followed by a written order dated February 22, 2018 (docketed on March 5, 2018). The court found Mother in contempt of the consent order for multiple reasons and dismissed Mother's contempt petition against Father. After finding Mother in contempt, the court addressed the sanctions to be imposed as a result of her conduct. As to the children, the court: 1) precluded Mother from exercising her tie-breaking decision-making authority as provided in the consent order until June 30, 2019, or until further order of court; 2) prohibited Mother from moving the children outside of Montgomery County or traveling with the children outside the Washington, D.C. metropolitan area without Father's written consent; and 3) ordered Mother to rescind in writing any form she had submitted to Montgomery County Public Schools requesting authorization for the parties' middle child to graduate early from high school. The court also ordered Mother to pay $35, 000 in attorney's fees directly to Father's counsel.

         On March 15, 2018, Mother moved to alter or amend the contempt order, which the court denied on April 20, 2018. On April 27, 2018, Mother filed a Notice for In Banc Review. She filed her in banc memorandum on June 4, 2018, and Father filed his memorandum on June 25, 2018.[1] On July 24, 2018, Father moved to dismiss Mother's request for in banc review, asserting that the in banc panel had no jurisdiction because Mother's Notice for In Banc Review "listed no points or questions to be reviewed and gave no reasons why the Contempt Order was incorrect." Father based his motion to dismiss on a recently issued Court of Appeals opinion, State v. Phillips, 457 Md. 481 (2018), a decision that we will discuss at length infra. The in banc panel denied Father's motion to dismiss.

         After a hearing, the in banc panel issued a written opinion on October 26, 2018. The in banc panel reversed the trial court's judgment of contempt. In doing so, the in banc panel concluded that the trial court abused its discretion by using a contempt proceeding to modify a child custody order. Specifically, the in banc panel determined that the trial court's suspension of Mother's tie-breaking authority and its imposition of restrictions on Mother's ability to relocate and travel with the children were not proper civil contempt sanctions. The in banc panel further determined that the trial court's contempt order was deficient because it failed to contain a lawful purge provision as required by Maryland Rule 15-207(d)(2). Finally, the in banc court vacated the attorney's fees award, concluding that the trial court failed to properly consider the factors set forth in Md. Code (1984, 2012 Repl. Vol.), § 12-103(b) of the Family Law Article ("FL"). Father timely noted this appeal.


         In Hartford Fire Ins. Co. v. Estate of Sanders, 232 Md.App. 24 (2017), Judge Deborah Eyler, writing for this Court, thoroughly explained the appropriate standard of review for appeals from decisions in banc. There, Judge Eyler explained that an in banc court "functions as a separate appellate tribunal[.]" Id. at 37 (internal quotation marks omitted) (quoting Bienkowski v. Brooks, 386 Md. 516, 553 (2005)). Because of its status as an appellate tribunal, the in banc court does not reconsider the decision of the trial court. Id. (quoting Dabrowski v. Dondalski, 320 Md. 392, 396 (1990)). Rather, the in banc court must "engage in appellate review of the trial court's decision." Id. (quoting Azar v. Adams, 117 Md.App. 426, 429 (1997)).

         Judge Eyler proceeded to explain this Court's role in reviewing a decision in banc, stating, "As an appellate tribunal, the in banc court 'is subordinate to this Court just as we are subordinate to the Court of Appeals.'" Id. at 38 (quoting Azar, 117 Md.App. at 433). Judge Eyler compared our Court's role in reviewing an in banc decision to the Court of Appeals's role in reviewing a decision from our Court, noting that, in most instances, the appellate court ultimately reviews the judgment of the trial court. Id. Consistent with this principle, "When a pure question of law comes before either this Court or the Court of Appeals, the standard of review is de novo, that is, neither Court gives any deference to the trial court's interpretation of the law." Id. at 39 (citing Nesbit v. Gov't Emps. Ins. Co., 382 Md. 65, 72 (2004)). When reviewing a trial court's exercise of discretion, however, "our standard is abuse of discretion, which is highly deferential to the trial court that is the judicial body that exercised its discretion." Id. at 40 (citing Goodman v. Commercial Credit Corp., 364 Md. 483, 491-92 (2001)).

         Judge Eyler also recognized that not every issue on appeal stems from a trial court decision.

Of course, sometimes issues arise on appeal that emanate from this Court to begin with and that will be decided by the Court of Appeals on further review without reference to a decision of the trial court. For example, if we were to dismiss an appeal for lack of an appealable order, the Court of Appeals on further review would be assessing our decision, not a decision by the trial court. Likewise, if we were to decide upon vacating a judgment that a limited remand was the proper disposition, the Court of Appeals on further review would be assessing our decision about that disposition, which obviously originated with us, not with the trial court.

Id. at 40. Such is the case with the first issue on appeal here, where the in banc panel- and not the trial court-made the legal determination that it had jurisdiction to consider Mother's in banc appeal.

         Against this backdrop we review whether the in banc panel had jurisdiction to review Mother's in banc appeal-a purely legal question-without deference to the in banc panel's decision. Id. at 39. In reviewing the trial court's attorney's fees award, we apply the abuse of discretion standard. See Sang Ho Na v. Gillespie, 234 Md.App. 742, 756 (2017) (stating that "We review an award of attorney's fees in family law cases under an abuse of discretion standard" (citing Steinhoff v. Sommerfelt, 144 Md.App. 463, 487 (2002))).


         I. The In Banc Court Had Jurisdiction To Consider Mother's Appeal

         Before we discuss whether the in banc panel erred in vacating the trial court's award of attorney's fees, we must first address Father's contention that the in banc court lacked jurisdiction to consider Mother's appeal. Father asserts that Mother failed to timely reserve questions for review because she did not include them in her Notice for In Banc Review, thus divesting the in banc court of jurisdiction.[2] In making his argument, Father relies on the Court of Appeals's decision in State v. Phillips, 457 Md. 481 (2018), a case interpreting the constitutional and procedural requirements for in banc review. As we shall explain, we hold that Phillips does not require an in banc appellant to state the questions for review in the notice for in banc review filed pursuant to Rule 2-551.

         In Maryland, "[a]n in banc panel review has been endearingly referred to as 'the poor person's appeal.'" Remson v. Krausen, 206 Md.App. 53, 60 (2012) (quoting Washabaugh v. Washabaugh, 285 Md. 393, 396 (1979)); see also Roth v. House of Refuge, 31 Md. 329, 333 (1869). This is so because in banc appellate review was created "to offer disappointed litigants an alternative method of review that was faster and less expensive than an appeal to the Court of Appeals, and that avoided the necessity of traveling to Annapolis." Id. (quoting Montgomery Cty. v. McNeece, 311 Md. 194, 201 (1987)).

         To provide context for our discussion of Phillips and in banc procedures, we note that Article IV, Section 22 of the Maryland Constitution states:

Where any trial is conducted by less than three Circuit Judges, upon the decision or determination of any point, or question, by the Court, it shall be competent to the party, against whom the ruling or decision is made, upon motion, to have the point, or question reserved for the consideration of three Judges of the Circuit, who shall constitute a court in banc for such purpose; and the motion for such reservation shall be entered of record, during the sitting at which such decision may be made; and the procedure for appeals to the Circuit Court in banc shall be as provided by the Maryland Rules. The decision of the said Court in banc shall be the effective decision in the premises, and conclusive, as against the party at whose motion said points, or questions were reserved; but such decision in banc shall not preclude the right of Appeal by an adverse party who did not seek in banc review, in those cases, civil or criminal, in which appeal to the Court of Special Appeals may be allowed by Law. The right of having questions reserved shall not, however, apply to trials of Appeals from judgments of the District Court, nor to criminal cases below the grade of felony, except when the punishment is confinement in the Penitentiary; and this Section shall be subject to such provisions as may hereafter be made by Law.

         Md. Const. art. IV, § 22 (emphasis added). Relevant to this appeal, the Maryland Constitution requires that the party noting an in banc appeal "reserve" the questions to be reviewed on appeal "during the sitting at which such decision may be made[.]" Id. Understanding the constitutional mandate of "reservation" of questions "during the sitting" is important in the resolution of this case.

         Additionally, Maryland Rule 2-551, which governs the procedures for seeking in banc review, provides, in relevant part:

(a) When review by a court in banc is permitted by the Maryland Constitution, a party may have a judgment or determination of any point or question reviewed by a court in banc by filing a notice for in banc review. Issues are reserved for in banc review by making an objection in the manner set forth in Rules 2-517 and 2-520. Upon the filing of the notice, the Circuit Administrative Judge shall designate three judges of the circuit, other than the judge who tried the action, to sit in banc.

         Regarding reservation, Rule 2-517(a), which governs evidentiary objections, requires the objecting party to object as soon as the grounds for the objection become apparent. Rule 2-517(c), which concerns "other rulings or orders," requires the party, "at the time the ruling or order is made or sought, [to] make[] known to the court the action that the party desires the court to take or the objection to the action of the court." Rule 2-520(e), which concerns jury instructions, requires a party objecting to an instruction to object "on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection." We note that Rules 2-517 and 2-520 appear to contemplate lodging objections to rulings that precede the final judgment, and require the objecting party to lodge the objection to those "non-final" rulings as soon as practicable.

         We now turn to Phillips, where the Court of Appeals explicitly considered the interplay between Article IV, Section 22 of the Maryland Constitution and Rule 2-551. In Phillips, the Court chronicled the constitutional history of Article IV, Section 22, the case law interpreting that provision, and the adoption of what is presently Maryland Rule 2-551. There, Phillips was charged with first-degree murder and related firearms violations. Id. at 484. Prior to his murder trial, Phillips filed a motion in limine to exclude evidence that the State intended to use against him. Id. Following a four-day hearing, the circuit court granted Phillips's motion and entered an interlocutory order on February 12, 2016, which excluded the objectionable ...

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