Taylor v. Mandel

• Decision Date: 09 November 2007
• Docket Number: No. 3, September Term, 2007.,3, September Term, 2007.
• Citation: 402 Md. 109,935 A.2d 671
• Parties: Denise TAYLOR v. Marc MANDEL.
• Court: Court of Special Appeals of Maryland

935 A.2d 671

402 Md. 109

Denise TAYLOR v. Marc MANDEL.

No. 3, September Term, 2007.

Court of Appeals of Maryland.

November 9, 2007.

Denise A. Taylor, pro se, for petitioner.

Akiva Y. Gross (Marc E. Mandel of Law Office of Marc E. Mandel, LLC, Towson), on brief, for respondent.

Argued before BELL, C.J., RAKER, HARRELL, BATTAGLIA, GREENE, ALAN M. WILNER (Retired, specially assigned) and DALE R. CATHELL (Retired, specially assigned), JJ.

BATTAGLIA, J.

The case sub judice presents us with the issue of whether a grandparent seeking custody or visitation rights of a minor grandchild may be assessed guardian ad litem¹ fees in the litigation she initiated. Denise Taylor, the grandmother against whom such fees were assessed, presents us with the following four questions:

1) Did the Court Err in assessing Guardian Ad Litem's Counsel Fees against Petitioner, the maternal grandmother of the children?

2) Did the Court Err in assessing the costs of the Respondent's appendix against Petitioner when Respondent failed to comply with Md. Rule 8-501(d)?

3) Did the application of Md. Family Law Code Ann. Section 1-202 to Petitioner and the procedure used to establish Petitioner's liability violate the due process clause and Articles 19 and 24 of the Maryland Declaration of Rights?

4) Did the Court Err in finding that the GAL's[²] bill was reasonable under all the circumstances of the case?

Because we hold that the circuit court erred in assessing guardian ad litem fees against Taylor, we reverse the Court of Special Appeals.³

I. Introduction

On March 23, 2004, Denise Taylor, Petitioner, and Diane Miskimon,⁴ filed a complaint against Kristi and William Biedenback in the Circuit Court for Baltimore County, seeking custody of, or in the alternative visitation with, Taylor's grandchildren, Tristian and Memorie Biedenback. Taylor, the maternal grandmother, alleged that the children, while in the physical custody of the Biedenbacks, had been physically and sexually abused and neglected. The Biedenbacks filed an answer to the complaint denying the allegations of physical and sexual abuse, asking the court to dismiss Ms. Miskimon as a plaintiff, and requesting the court to order that the minor children remain in the custody and care of the Biedenbacks and to deny Taylor visitation. The Biedenbacks also filed a motion to dismiss the complaint to which Taylor filed a memorandum in opposition seeking denial of the Biedenbacks' motion and requesting pendente lite custody of the children, a home study, a guardian ad litem for the children, and an emergency hearing.

When the Biedenbacks failed to answer Taylor's requests for pendente lite custody of the children, a home study, a guardian ad litem for the children, and an emergency hearing, Taylor filed a request for an order of default iterating her request for a guardian ad litem and a home study. Taylor also filed a motion for an order compelling discovery, asking the court to order the Biedenbacks to file answers to interrogatories that had been served earlier.

Without a hearing, the Circuit Court for Baltimore County granted Taylor's motion to compel discovery, entered an order of default, appointed Marc E. Mandel, Esquire, Respondent, as guardian ad litem for the children, and ordered that a home study be completed; subsequently, Mandel, himself, submitted an amended order containing information regarding the fees of the guardian ad litem, which was signed by the circuit court:

THE ORDER OF THIS COURT dated September 15, 2004 appointing Marc E. Mandel, Esquire, Guardian Ad Litem for the minor children is this 18th day of October, 2004 amended as follows:

* * *

1. To consent or not to the release of privileged medical and/or psychiatric/psychological information regarding the minor children pursuant to Nagel v. Hooks; and,

2. To represent the best interests of the minor children as their guardian ad litem regarding the issues of custody and visitation, and in that regard to participate fully in pre-trial discovery, hearings and trial on the merits; and it is further,

ORDERED that Marc E. Mandel, Esquire, as attorney for the minor children, shall have access to copies of the case file and all records regarding this action including, but not limited to, access to the records and/or evaluations of any therapist, psychiatrist, psychologist, or mental health professional as well as any Department of Social Services records regarding the minor children; and it is further,

ORDERED that the Court hereby reserves for future determination the award of reasonable counsel fees to Marc E. Mandel, Esquire, upon the filing of a Petition for Counsel Fees by said counsel; and it is further,

ORDERED that each party shall advance to her or his counsel of record the sum of $1,000.00, which said sum shall be held in escrow subject to further Order of this Court regarding apportionment between the parties of their respective obligations to pay the reasonable counsel fees of the attorney for the minor children.

Taylor did not file an objection to the amended order, request a hearing, or file a motion to reconsider, but rather complied and deposited $1,000.00 into her attorney's escrow account.

Taylor and the Biedenbacks eventually reached an agreement, putting the settlement on the record in April of 2005. Mandel subsequently filed his petition for guardian ad litem fees,⁵ and filed an amended petition for guardian ad litem fees two days later, seeking $9,041.73.

Taylor filed an Opposition to Guardian Ad Litem's Amended Motion for Counsel Fees in which she challenged the hourly rate charged, the amount of time billed and the proposed apportionment of the bill. Primarily, though, she asserted that Mandel could not recover guardian ad litem fees from her because she was not a "parent" within the purview of Section 1-202 of the Family Law Article, Maryland Code (1999, 2004 Repl.Vol.).⁶ Additionally, Taylor contended that guardian ad litem fees could not be awarded under Section 12-103 of the Family Law Article, Maryland Code (1999, 2004 Repl.Vol.),⁷ because that Section refers to "counsel fees."

The circuit court granted Mandel's motion for guardian ad litem fees without a hearing and awarded him $7,041.73: Taylor and Ms. Miskimon were ordered to pay $5,962.13, and the Biedenbacks were ordered to pay $1,079.60. Taylor filed a motion requesting that the court reconsider its Order Granting Guardian Ad Litem's Amended Motion for Counsel Fees, or in the alternative, to hold a hearing to ascertain what fees were fair and reasonable and how the fees should have been apportioned; Taylor again argued that the circuit court did not have the authority to assess guardian ad litem fees against her. The Biedenbacks filed a similar motion for reconsideration, seeking the same relief as Taylor had requested. Ms. Miskimon subsequently filed a motion for reconsideration, asserting that the parties had agreed to a stipulation of dismissal of Ms. Miskimon as a plaintiff, and therefore, she should not have been assessed guardian ad litem fees.

On July 18, 2005, the circuit court struck the May 26th order granting guardian ad litem fees and scheduled a hearing. At the hearing, Taylor argued that the guardian ad litem fees were excessive and also contended that the guardian ad litem did not have the ability to recover fees from Taylor because she was not a "parent" under Section 1-202, and because Section 12-103 did not pertain to guardian ad litem fees. Nevertheless, the circuit court issued a memorandum opinion, awarding guardian ad litem fees to Mandel and rejecting Taylor's argument that there was no statutory authority allowing a guardian ad litem to collect fees from Taylor because this argument had been waived when Taylor requested the appointment of the guardian ad litem without objecting to the payment of fees:

The Court's authority to award attorneys fees to a Guardian Ad Litem is not limited to awards against "parents" under Md.Code Ann., Family Law Art., Sec. 12-103 or 1.202, particularly in circumstances where the party advancing that argument is the party who asked for the appointment of the GAL in the first place without registering any objection to paying the GAL's fees in connection with the order appointing the GAL. To the extent that there is some argument to be advanced here, it has plainly been waived by the Plaintiff.

The court also concluded that "according to the Family Division Guidelines," the Biedenbacks were "exempt from having to pay GAL's legal fees"⁸ and even if that was not the case, given the financial circumstances of the parties, "it is clear that the GAL's fees should be borne by [Taylor]." A judgment in favor of Mandel against Taylor in the amount of $6,821.73 was filed and docketed.

Subsequently, Taylor filed a Motion to Vacate Judgment or in the Alternative Amend and Stay Judgment Pending Appeal requesting that the court either vacate the judgment against her, vacate the judgment and order her to pay the guardian ad litem fees, or stay the judgment pending the appeal. Mandel then filed a motion for reconsideration requesting that the court award him the full amount of his guardian ad litem bill, $9,041.73, as well as prejudgment and post-judgment interest.

The circuit court granted Taylor's Motion to Vacate or in the Alternative Amend and Stay Judgment Pending Appeal. The court vacated the judgment against Taylor but ordered that she pay Mandel $6,821.73.⁹

Taylor noted an appeal to the Court of Special Appeals, before which she argued that the circuit court erred in assessing guardian ad litem fees against her because she was not a "parent" within the purview of Section 1-202 of the Family Law Article, and because Section 12-103 only involves "counsel fees." In an unreported opinion, the intermediate appellate court affirmed the imposition of guardian ad litem fees against Taylor and concluded that although neither Section 1-202 nor Section 12-103 of the Family...