Henriquez v. Henriquez

• Citation: 992 A.2d 446,413 Md. 287
• Parties: Jose HENRIQUEZ v. Ana HENRIQUEZ.
• Decision Date: 13 April 2010
• Court: Maryland Court of Appeals

992 A.2d 446

413 Md. 287

Jose HENRIQUEZ v. Ana HENRIQUEZ.

No. 81, September Term, 2009.

Court of Appeals of Maryland.

April 13, 2010.

COPYRIGHT MATERIAL OMITTED

Luiz R.S. Simmons (Auerbach & Simmons, Silver Spring, MD), on brief, for Petitioner.

Deena Hausner (Ashley R. Sikora of House of Ruth Maryland Domestic Violence Legal Clinic, Baltimore, MD), on brief, for Respondent.

Brief of Public Justice Center, Maryland Network against Domestic Violence, Legal Aid Bureau, Women's Law Center, Mid-Shore Council on Family Violence, Maryland Coalition Against Assault, Heartley House, and Maryland Volunteer Lawyers Service as Amici Curiae for Respondent:

Monisha Cherayil, Esquire, Murnaghan Appellate Advocacy Fellow, Baltimore, MD.

ARGUED BEFORE BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

BATTAGLIA, Judge.

We are asked to consider whether a court award of attorneys' fees in a divorce and custody proceeding between Jose Henriquez, Petitioner, and Ana Henriquez, Respondent, the prevailing party, to a non-profit organization that provided Mrs. Henriquez with pro bono legal representation, was appropriate under Section 12-103 of the Family Law Article, Maryland Code (1984, 2006 Repl.Vol.).¹

After a trial on issues of custody, visitation, and child support, the Circuit Court for Montgomery County ordered, among other things, that Mr. Henriquez pay $5,000 in attorneys' fees to the House of Ruth Domestic Violence Legal Clinic, a non-profit organization that represented Mrs. Henriquez on a pro bono basis. The Court of Special Appeals affirmed the award of attorneys' fees in a reported opinion, Henriquez v. Henriquez, 185 Md. App. 465, 971 A.2d 345 (2009), and we granted certiorari, Henriquez v. Henriquez, 410 Md. 165, 978 A.2d 245 (2009), to address the following question,² which we have compressed and rephrased for clarity:

Whether an award of counsel fees directly to a non-profit legal services organization that represented a prevailing party, on a pro bono basis originally, in a child custody matter, is appropriate pursuant to Section 12-103 of the Family Law Article, Maryland Code (1984, 2006 Repl.Vol.)?

We shall hold that the plain meaning of Section 12-103 permits an award of attorneys' fees, consistent with consideration of the statutory factors, when the prevailing party receives pro bono legal representation from a non-profit legal services organization, and that the award may be made directly to the legal services organization.

Background

Ana and Jose Henriquez were married in El Salvador on April 18, 1998. They had two children during the marriage, Ana, born in 1998, and Jessica, born in 2000.³ In December of 2005, Mrs. Henriquez filed a Complaint for Absolute Divorce in the Circuit Court for Montgomery County, requesting "sole legal and physical custody" of the children, "temporary and permanent child support," as well as "reasonable counsel fees and costs."

Judge Durke G. Thompson bifurcated the proceedings, considering issues of custody, visitation, and child support on January 8 and 9, 2007, first, prior to exploring the grounds for divorce and property disposition matters. During the custody, visitation, and child support phase of the trial, counsel for Mrs. Henriquez introduced an itemized bill entitled "Attorney's Fees for Custody, Visitation and Support Issues Only," documenting legal work on her behalf undertaken by the House of Ruth amounting to 58.34 hours, at $200 per hour, for a total of $11,668. Counsel for Mr. Henriquez objected to the introduction of the bill for attorneys' fees, because the House of Ruth agreed to represent Mrs. Henriquez on a pro bono basis.

At the conclusion of the custody, child support, and visitation phase of the trial, Judge Thompson awarded Mrs. Henriquez sole physical custody of the children and ordered Mr. Henriquez to pay child support. Judge Thompson also awarded attorneys' fees in the amount of $5,000 to the House of Ruth for legal work on Mrs. Henriquez's behalf regarding custody, visitation, and support issues, explaining his decision as follows:

The Court also believes that there should be some award of fees for representation given that essentially Mrs. Henriquez is wholly dependent and went to a community services organization for her representation. She's virtually penniless as far as I can tell. Mr. Henriquez makes what he makes. Any payment to counsel obviously goes out of the family pocket and into, into counsel's pocket. Mr. Henriquez has made a payment of $5,000 to his attorney. I think that represents an exceptionally reasonable amount and I make an award of a similar amount to, for counsel fees.

* * *

The award of fees to the plaintiff are for the purposes of costs and to whatever extent attorneys' fees have been expended.

which was later reduced to an order stating,

ORDERED, that the Defendant shall pay to the Plaintiff's counsel, the House of Ruth Domestic Violence Legal Clinic, the sum of Five Thousand Dollars ($5,000.00) for attorney's fees

....

Mr. Henriquez noted a timely appeal to the Court of Special Appeals, which affirmed in a reported opinion, Henriquez v. Henriquez, 185 Md.App. 465, 478-79, 971 A.2d 345, 353-54 (2009), holding that Section 12-103 contains "no per se bar to awarding attorney's fees to a party who is represented by a non-profit organization that provides the party with free legal representation," relying in part on a finding that a majority of states have held that providers of pro bono legal representation are eligible to receive fee awards in domestic relations matters.

Introduction

We are asked to interpret a fee shifting statute in the family law arena, to resolve the question of whether attorneys' fees to a prevailing party in a child custody and support proceeding can be ordered to be paid directly to a non-profit, legal services organization that provides pro bono representation to the party.

We generally adhere to the "American rule,"⁴ in which each party is responsible for its own legal fees, regardless of who wins in the litigation. See Friolo v. Frankel, 403 Md. 443, 456, 942 A.2d 1242, 1250 (2008), citing Montgomery v. E. Corr. Inst., 377 Md. 615, 637, 835 A.2d 169, 183 (2003); see also Hess Constr. Co. v. Bd. of Educ. of Prince George's County, 341 Md. 155, 159, 669 A.2d 1352, 1354 (1996). Fee shifting, an exception to the American rule, whereby a court orders payment of the prevailing party's attorneys' fees by the losing side, may be accomplished by an express agreement or by statute. Friolo, 403 Md. at 456, 942 A.2d at 1250; see also Bausch & Lomb Inc. v. Utica Mut. Ins. Co., 355 Md. 566, 592, 735 A.2d 1081, 1095 (1999) ("Maryland law has never recognized fee shifting ... absent contractual provision, statute, or rule."). See also Nova Research, Inc. v. Penske Truck Leasing Co., 405 Md. 435, 445 & n. 3, 952 A.2d 275, 281 & n. 3 (2008) (describing additional bases for fee shifting).

In terms of pro bono legal service, we have emphasized the importance of such activities by the profession and have attempted to increase the availability of free or reduced fees for legal representation of indigent individuals throughout our State.⁵ Rule 6.1 of the Maryland Rules of Professional Conduct, in which an aspirational goal of fifty hours of annual pro bono service by all attorneys is encouraged,⁶ as well as Rule 16-903,⁷ requiring mandatory reporting of pro bono hours, fortified by the adoption recently of the Ideals of Professionalism,⁸ reflect this commitment. Approximately one million Marylanders satisfy eligibility for pro bono legal services, yet "because of inadequate resources, legal services providers must reject thousands of compelling cases," especially in the area of family law. See Standing Committee of the Court of Appeals on Pro Bono Legal Service, State Action Plan and Report, at 5, 11 (2006) ("Family law cases consistently overwhelm the legal services delivery system and pro bono programs. Contested cases are the most difficult to place because they are time consuming and the pool of experienced family law practitioners is relatively small."), available at http://www.mdcourts.gov/probono/pdfs/ stateactionplan12-18-06.pdf (last visited Apr. 9, 2010).

Within this framework, we consider the award of $5,000 to the House of Ruth,⁹ who represented Mrs. Henriquez on a pro bono basis during the child custody and support proceeding.

Discussion

Our focus in the present case is the language of Section 12-103, which states in relevant part:

(a) In general.—The court may award to either party the costs and counsel fees that are just and proper under all the circumstances in any case in which a person:

(1) applies for a decree or modification of a decree concerning the custody, support, or visitation of a child of the parties;....

* * *

(b) Required considerations.—Before a court may award costs and counsel fees under this section, the court shall 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.

Mr. Henriquez argues that the award of attorneys' fees was improper as a matter of law, contending that Section 12-103 authorizes an award of attorneys' fees only when a party actually incurs expenses for legal representation, defining "attorney's fees" as "the charge to a client for services performed for the client, such as an hourly fee, a flat fee, or a contingent fee," quoting Black's Law Dictionary 148 (9th ed. 2009) (emphasis in original). He emphasizes that Mrs. Henriquez did not actually incur any counsel fees.

Mrs. Henriquez counters that the word "incurred" does not even appear anywhere in the language of Section 12-103 and submits that "attorney's fees are simply monies due to an attorney for legal services rendered," and that nothing in the mandatory factors set forth in Section 12-103 "requires a court to consider the...