Goldberg v. Miller

• Decision Date: 08 November 2002
• Docket Number: No. 8,8
• Citation: 810 A.2d 947,371 Md. 591
• Parties: David S. GOLDBERG v. Robert Martin MILLER.
• Court: Maryland Court of Appeals

810 A.2d 947

371 Md. 591

David S. GOLDBERG v. Robert Martin MILLER.

No. 8, September Term 2002.

Court of Appeals of Maryland.

November 8, 2002.

Glenn M. Cooper, Bethesda (David S. Goldberg, Gaithersburg, on brief), for petitioner.

Cynthia E. Young, Annapolis, for respondent.

BELL, C.J. and ELDRIDGE, RAKER¹, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

BATTAGLIA, J.

The petitioner in this case, David S. Goldberg, Esquire, ("Goldberg"), seeks review of the judgment of the Court of Special Appeals and asks this Court to determine whether guardian ad litem fees imposed pursuant to Maryland Code § 1-202 of the Family Law Article (1984, 1999 Repl.Vol.) (hereinafter "guardian ad litem fees") can be collected through garnishment of a federal retirement annuity under 5 C.F.R. § 581.307 (2002), which requires such fees to be treated as child support. Agreeing with the intermediate appellate court, we hold that a Circuit Court does not possess the authority to treat guardian ad litem fees as child support. We, therefore, affirm the judgment of the Court of Special Appeals.

I. Facts:

Goldberg, licensed to practice law in the State of Maryland, became involved in a contentious divorce and child custody dispute between Robert Miller and Mary Miller on August 9, 1999, when the Circuit Court for Montgomery County appointed him guardian ad litem for the parties' minor son, Joseph. Goldberg's representation of Joseph continued until the Millers placed their settlement agreement on the record on November 8, 1999. The Circuit Court incorporated the transcript of that recorded settlement into its order of November 30, 1999, establishing the Millers' child custody, support, and visitation arrangements. Goldberg petitioned for guardian ad litem fees, which he was awarded on December 27, 1999 pursuant to Maryland Code, § 1-202 of the Family Law Article.

On February 18, 2000, Mary Miller filed a motion for modification of child custody and other relief, which generated extensive further proceedings. Goldberg again became involved in the case when, on April 6, 2000, he filed a Response of Guardian Ad Litem to Plaintiff's Motion to Compel a Mental Examination of Robert Miller. On April 17, 2000, Mary Miller filed a petition to have Goldberg reappointed as guardian ad litem. Two days later, Goldberg filed a consent to the reappointment, which Robert Miller opposed. On May 26, 2000, the court entered an order requiring that all visitation by Robert Miller with Joseph be supervised and scheduled by Goldberg.

The court, on June 2, 2000, reappointed Goldberg to represent Joseph while the Millers continued to squabble over the modification to their child custody agreement. Accordingly, Goldberg served as Joseph's guardian ad litem until August 28, 2000 when the court entered a visitation modification order. On September 7, 2000, Goldberg petitioned for guardian ad litem fees in connection with his representation of Joseph from December 1, 1999 through October 19, 2000.

Robert Miller opposed the petition. In his opposition, Robert Miller stated that Goldberg should be denied his request for fees because his participation in the case unnecessarily prolonged the litigation. Robert Miller also suggested, in his opposition, that Goldberg did not serve the best interest of the child, but, rather, acted as a partisan of Mary Miller.

After holding two hearings on the fee issue, the court, on February 27, 2001, entered an award of $21,728.00 in attorney's fees to Goldberg, $14, 340.48 of which was to be paid by Robert Miller. The court ordered the remaining $7387.52 to be paid by Mary Miller. Robert Miller, a retired employee of the federal government, filed for bankruptcy the next day.

In an attempt to collect the judgment against Robert Miller, Goldberg wrote a letter requesting that the Circuit Court modify the award of counsel fees to describe it as being "in the nature of `child support' for the benefit and support of the said child." According to the request, the guardian ad litem fees, if properly characterized as child support, would enable Goldberg, under 5 C.F.R. § 581, to garnish Robert Miller's federal retirement benefits.²

In response to Goldberg's letter, the Circuit Court, on March 26, 2001, entered a Supplemental Order Awarding Attorney Fees to Guardian Ad Litem (hereinafter the "Supplemental Order"). The Supplemental Order, which is the subject of this appeal, provides in relevant part:

ORDERED, that all fees awarded by this Court to David S. Goldberg, Esq., in his capacity as Guardian Ad Litem and as attorney for Joseph Miller, minor child of the parties in the above captioned case, are intended to be in the nature of child support recoverable for the support and benefit of the said minor child and within the definition of "Child Support" as set forth in 5 C.F.R. § 581.102(d).

This order encompassed both awards of guardian ad litem fees to Goldberg, the one entered on December 27, 1999 and the other entered on February 27, 2001. Robert Miller's motion to vacate the Supplemental Order was denied, and he appealed.

The Court of Special Appeals reversed the Circuit Court's decision. Miller v. Miller, 142 Md.App. 239, 788 A.2d 717 (2002). The Court of Special Appeals held that the Circuit Court erred in two respects. First, it held that the Circuit Court improperly modified the December 27, 1999 award of guardian ad litem fees because Goldberg's request for modification of that award was not filed within thirty days after the entry of the award, as required by Md. Rule 2-535(a).

Second, as to the February 27, 2001 award of guardian ad litem fees, the court held that the Circuit Court exceeded its authority by treating guardian ad litem fees as child support. The court based this conclusion on its reading of Maryland statutory child support provisions under Maryland Code, § 12-204 of the Family Law Article, which provides certain criteria that courts must consider in computing child support awards. Relying on the rule of statutory construction, expressio unis est exlusio alteris (i.e., the expression of one is the exclusion of another), the court reasoned that the Legislature's omission of guardian ad litem fees from the criteria under Section 12-204 "constitute[d] a statement that the [L]egislature did not intend for legal fees to be treated as child support."

Goldberg petitioned this Court for a Writ of Certiorari, which we granted. Goldberg v. Miller, 368 Md. 526, 796 A.2d 695 (2002). In his petition, Goldberg challenged only the portion of the opinion of the Court of Special Appeals that concerned the Circuit Court's February 27, 2001 award of guardian ad litem fees. For clarity, we have rephrased the question on appeal as follows: "Under Maryland law, did the Circuit Court possess the authority to treat guardian ad litem fees as child support?"³ Affirming the judgment of the Court of Special Appeals, we hold that the Circuit Court did not possess such authority because the treatment of guardian ad litem fees as child support is inconsistent with the Maryland statutory scheme for child support.

II. Discussion

A. 5 C.F.R. § 581, the Federal Regulation

Because the Supplemental Order refers specifically to 5 C.F.R. § 581.102(d), it is useful to begin by exploring the federal scheme. By authority of 42 U.S.C.A. § 661,⁴ the Office of Personnel Management promulgated 5 C.F.R. § 581, entitled Processing Garnishment Orders for Child Support and/or Alimony. Section 581.101 states, in relevant part:

[M]oneys, the entitlement to which is based upon remuneration for employment, due from, or payable by, the United States ... to any individual, shall be subject, in like manner and to the same extent as if the United States ... were a private person:

(1) To legal process for the enforcement of an obligor's legal obligations to provide child support, alimony, or both, resulting from an action brought by an individual obligee....

5 C.F.R. § 581.101. Therefore, the regulation permits garnishment of income for federal employment, including retirement income, to the same extent as any other income if the obligation underlying the garnishment is one for either child support or alimony or both. Before the regulation can operate with respect to a child support obligation, however, the "obligation" must meet the regulation's definition of child support. The regulation defines child support as:

[T]he amounts required to be paid for the support and maintenance of a child,... which provides for monetary support, health care, arrearages or reimbursement, and which may include other related costs and fees, interest and penalties, income withholding, attorney's fees, and other relief.

5 C.F.R. § 581.102(d). Under this definition, attorney's fees may be considered child support. Determining when a particular award of attorney's fees qualifies as child support, though, turns on a whether the award meets the several requirements of 5 C.F.R. § 581.307. That section provides:

Before complying with legal process that requires withholding for the payment of attorney fees, ... the government entity [from which the federal benefits are payable] must determine that the legal process meets both of the following requirements:

(a) The legal process must expressly provide for inclusion of attorney fees ... as (rather than in addition to) child support...;

(b) The awarding of attorney fees ... as child support ... must be within the authority of the court, authorized official, or authorized State agency that issued the legal process. It will be deemed to be within the authority of the court, authorized official, or authorized State agency to award attorney fees as child support ... if such order is not in violation of or inconsistent with State or local law, even if State or local law does not expressly provide for such award.

5 C.F.R. § 581.307. The section, therefore, imposes three requirements: (1) the award of attorney's fees must come through...