This appeal is the latest in a number of appeals arising from divorce and custody

Transcription

1 UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No September Term, 2013 MICHAEL ALLEN McNEIL v. SARAH P. McNEIL Meredith, Graeff, Leahy, JJ. Opinion by Graeff, J. Filed: August 15, 2014

2 This appeal is the latest in a number of appeals arising from divorce and custody proceedings in the Circuit Court for Howard County between Michael McNeil, appellant, and Sarah McNeil, appellee. It involves the court s appointment of Peter Markuski as a Best Interest Attorney ( BIA ) to represent the interests of the parties two minor children. More than three years after the court appointed Mr. Markuski as BIA, and after this Court upheld the circuit court s ruling regarding payment of a portion of the BIA s fees, Mr. McNeil filed a Motion to Strike Best Interest Attorney and to Set Aside All Orders Concerning the Best Interest Attorney. The court denied that motion, and it granted Mr. Markuski s Sixth Motion for Attorney s Fees. On appeal, Mr. McNeil presents the following two questions for our review: 1. Did the circuit court err when [it] refused to void or vacate an order that appointed V. Peter Markuski as Best Interest Attorney due to the fact that it failed to meet the requirements of MD Rule (c)(F) in that there is no date or event that terminates his appointment, and did the trial court subsequently err when it failed to declare void or vacate any subsequent order dealing with the BIA due to the fact that his appointment was not made in accordance with Maryland Law? 2. Did the circuit court err when it granted Mr. Markuski[ s] Sixth Motion For Attorney Fees even though it knew that Mr. Markuski[ s] appointment orders were not made in accordance with Maryland Law? For the reasons set forth below, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND The resolution of the parties divorce and related issues has been highly litigious, including multiple appeals to this Court. We will set forth a brief background of the proceedings and events leading up to the orders at issue in this appeal.

3 The parties were married on August 6, 1995, and had four children during the marriage: Adam, born November 15, 1997; Tevia, born September 3, 2002; and James and 1 John, both deceased. Mr. McNeil and Ms. McNeil separated on May 16, 2008, and on November 14, 2008, Ms. McNeil filed a Complaint for Limited Divorce and Other Relief, which she subsequently amended to a Complaint for Absolute Divorce, Custody, and Other Relief. On March 23, 2009, the circuit court entered an order appointing Mr. Markuski as the Best Interest Attorney for Adam and Tevia. On December 27, 2010, the circuit court granted Ms. McNeil an absolute divorce from Mr. McNeil, as well as sole legal and physical custody of Adam and Tevia. On September 26, 2012, after the resolution of other appeals relating to the divorce, Mr. McNeil filed a Motion to Strike Best Interest Attorney and Motion to Set Aside All Orders Concerning the Best Interest Attorney. He argued that the March 2009 order appointing Mr. Markuski was void because it violated Maryland Rule (c)(1)(F) by 2 failing to state when the appointment terminates. Mr. McNeil asserted that Final Custody in this case was determined on December 27, 2010, yet the Best Interest Attorney has yet to strike his appearance, and continues to submit bills. He requested the following relief: (1) [t]hat the Best Interest Attorney s appointment order be set aside, vacated, or made void and 1 The record on appeal does not reflect when James and John were born, nor the circumstances of their deaths. 2 Maryland Rule (c)(1)(F) provides, in pertinent part, as follows: An order appointing child s counsel shall... state when the appointment terminates. -2-

4 without effect ; (2) [t]hat any judgment for attorney s fees awarded to the Best Interest Attorney be... set aside, vacated, or made void and without affect ; and (3) [t]hat the Best Interest Attorney s appearance be stricken. On October 5, 2012, Mr. Markuski filed his Sixth Motion for Attorneys Fees. He asserted that, since the date of his appointment, he had met with all parties, the minor children, made home visits, attended various Court appearances, reviewed voluminous Motions, Responses, Oppositions, multiple Appeals and many other pleadings, and that, as of the date of the motion, the outstanding fees not covered by [his] five (5) prior motions are $30, and $32.00 in costs. Additionally, he asserted that he had incurred fees of $4,443,25 and $ in costs as a result of responding to the multiple Appeals filed by Mr. McNeil. He attached to his motion his outstanding bills, as well as an order from the United States Bankruptcy Court for the District of Maryland granting his motion for relief from stay, which permitted Mr. Markuski to seek a determination of the attorney s fees owed to him by Mr. McNeil. Mr. Markuski requested that the court enter an order directing the payment of his outstanding bills, assessing the fees against the parties as the Court deems appropriate. On October 22, 2012, Mr. McNeil filed an opposition and answer to Mr. Markuski s motion for fees. He argued that Mr. Markuski was never appointed as a child attorney in accordance with Maryland Law, and therefore, the court had no authority to order [him] to pay Mr. Markuski any sums of monies now or in the past. He further contended that, -3-

5 even if Mr. Markuski was properly appointed as BIA, the court still has no authority to order [him] to pay Mr. Markuski any sums of monies since according to [his] Financial Statement [], and the fact that [he] is going through Chapter 13 Bankruptcy, [he] has demonstrated with certainty his inability to pay Mr. Markuski any sum of money. On March 12, 2013, the court held a hearing on Mr. McNeil s Motion to Strike [BIA] and Motion to Set Aside All Orders Concerning the [BIA], as well as Mr. Markuski s Sixth Motion for Attorney s Fees. The court first considered Mr. McNeil s motion to strike the BIA and set aside all orders concerning him. Although the court agreed that the initial appointment order did not include a termination date, and that rules of procedure are not mere guides but are precise rubrics to be strictly followed, the court stated that Mr. McNeil had not raised the violation of the rule of procedure until September 26, 2012, and therefore, there may be issues here of waiver at least up to that point. The court further stated that it was not aware of any case, nor had one been cited, holding that the appropriate sanction for the rule violation would be to void everything that s happened for the last four years. Mr. McNeil was unable to provide the court with a case supporting his request to vacate the appointment order. He argued that perhaps the most appropriate remedy would be... [to deny] the excessive attorney fees that have been granted and awarded to the best interest attorney. He contended, however, that it really comes down to an issue of fees, whether those orders will be vacated as a result of the order being invalid. -4-

6 Mr. Markuski argued that the issue[] of [his] fees has gone to the Court of Special Appeals on three occasions, stating that the circuit court was affirmed twice and one of 3 the appeals was dismissed for the failure of Mr. McNeil to file his brief. He asserted that Mr. McNeil had not previously challenged the appointment order and because we re three years down the road and now he raises this issue... he s waived [it]. Mr. Markuski further argued that Mr. McNeil was improperly attempting to collaterally attack a final judgment. Ms. McNeil also argued that Mr. McNeil had waived the issue. She contended that there had been several appeals since the court issued its order appointing Mr. Markuski, and the issue of striking Mr. Markuski and his fees came up in those appeals. In ruling on Mr. McNeil s motion to strike, the court found that Mr. McNeil had waived his right to object to Mr. Markuski s appointment. It further noted that Mr. McNeil 3 On November 21, 2011, we dismissed Mr. McNeil s appeal of the denial of his April 7, 2010, motion to strike the BIA, holding that, because a final judgment in the divorce proceeding was not entered at the time, it was an improper interlocutory appeal. McNeil v. McNeil, No. 413, Sept. Term 2010, Slip op. at 2-3 (Filed Nov. 21, 2011). In another appeal addressing Mr. McNeil s April 7, 2010, motion to strike, noted after a final judgment was entered in the divorce proceeding, appellant argued that the circuit court abused its discretion in refusing to strike the Best Interest Attorney ( BIA ) and awarding the BIA fees because Mr. McNeil had demonstrated his inability to pay the BIA s fees. We rejected that contention holding that the circuit court properly based its fee award on an exhaustive review of the parties income, assets, and expenses, and did not abuse its discretion in awarding the BIA fees. McNeil v. McNeil, No. 2642, Sept. Term 2010, Slip op. at 13 (Filed Nov. 22, 2011). In the third appeal, where appellant contended that the circuit court erred in awarding the BIA attorney s fees in an April 2011 order because there was no reason for the BIA to be involved in the contempt proceedings for which the fees were incurred, this Court held that the circuit court did not abuse its discretion. McNeil v. McNeil, Nos & 1991, Sept. Term 2011, Slip op. at 16 (Filed June 22, 2012). -5-

7 failed to cite any law in support of his contention that the deficiency in the order appointing Mr. Markuski required the court to strike his appointment several years later. The court then moved to Mr. Markuski s motion for fees. Counsel for Ms. McNeil provided the court with a document in which she went through Mr. Markuski s petition and his record of his fees, as follows: [A]nything that Mr. Markuski was responding to the defendant, I attributed it to the defendant. If he was responding to something that the plaintiff filed, I attributed it to the plaintiff. If it was something he was responding to or preparing for court, I put it in the both column. Counsel explained that she sorted the fees so that the court could see all the charges for the defendant, all of the charges for the plaintiff, and then all of the charges for both. She calculated that, of the $26,932 in charges laid out in Mr. Markuski s bill for November 2011 through July 2012, $3, were attributable solely to Mr. McNeil, $1, were attributable solely to Ms. McNeil, and $21,168 were attributable to both because that entailed court appearances, et cetera. From the both column, counsel attributed 40 percent to Ms. McNeil and 60 percent to Mr. McNeil, based on the court s December 2010 divorce decree attributing 40 percent of the BIA fees to Ms. McNeil and 60 percent to Mr. McNeil. With respect to Mr. Markuski s $3, bill for July 2012 to October 1, 2012, Ms. McNeil attributed $ to Mr. McNeil, $ to herself, and $2, to both. Using the same 40/60 percent calculation of the shared expenses, she determined their respective amounts owed. -6-

8 With respect to Mr. Markuski s third bill, for fees incurred in responding to two appellate matters, Ms. McNeil argued that Mr. McNeil should be responsible for the entire amount because the appeals resulted from the appeals he took... and all of those appeals have been denied and/or dismissed. So we are asking that he be responsible for the BIA fees as it relates to the appeals. The court granted Mr. Markuski s motion for attorney s fees. Based on Mr. McNeil s argument that he had no opportunity to respond to Ms. McNeil s argument regarding the breakdown of the fees, however, the court gave Mr. McNeil 21 days to respond in writing 4 regarding the division of fees. On May 17, 2013, the court issued a Supplemental Memorandum Ruling on Confirmation of the Appointment and Continuing Need for Best Interest Attorney (BIA) for Minor Children, Setting Conditions for BIA Termination, Award of Best Interest Attorney s Fees & Other Recent Orders. Initially, it noted that its Order Confirming the Appointment and Continuing Need for BIA and setting conditions for BIA confirmed the March 18, 2009, order appointing the BIA and found a continuing need for the BIA to represent the minor children. In ruling on the amount of the BIA s fees, the court stated: First, the [c]ourt confirms that the BIA s representation was necessary regarding his participation in all the litigation including the four appeals, as 4 The record indicates that on April 2, 2013, Mr. McNeil filed his Response to Plaintiff s Analysis of BIA fee. Mr. McNeil did not include his response in the record extract, and it does not appear in the portion of the voluminous circuit court record that we received for this appeal. -7-

9 well as legal services related thereto. It finds that the minor children s best interests were directly or indirectly affected by the issues raised by [Mr. McNeil] in each of those appeals, despite the March 18, 2009 Order that did not require the BIA s representation in any appeals. Further, the [c]ourt has reviewed the entire record including the documentation for the BIA s present fee request, the [Ms. McNeil s] and [Mr. McNeil s] self-represented [] Analyses of the same, considered the financial needs and resources of each party/parent herein and confirms... that there was a need for the BIA s representation of minor children in this case and that [Mr. McNeil] was primarily responsible for significant portions of the litigation generated; much of which was without substantial justification, requiring the BIA to appropriately incur fees for proper representation of the children in their best interests. To place its present ruling in context, this [c]ourt rules that there has been a persistent pattern of continuous and incessant litigation generated by [Mr. McNeil], much of which has been found by this [c]ourt and confirmed to be without substantial justification by Maryland appellate courts. Nevertheless, this [c]ourt finds that some of this litigation has been justified, i.e., that related to securing [Mr. McNeil] more access to his daughter. However, [Mr. McNeil s] persistent, ineffective stubbornness has been demonstrated by the numerous findings of failure to abide by this [c]ourt s past orders; much of which was challenged by him but without success and without substantial justification. The court went on to note that [a] party seeking reimbursement [for] fees bears the burden to present evidence concerning their reasonableness, (quoting Sczudlo v. Berry, 129 Md. App. 529, (1999)), and prior to making such an award the court must have sufficient proof before it showing how the fees were incurred and that they are reasonable. (Quoting id. at 551). It found that Mr. Markuski provided exhibits and testimony supporting this [c]ourt s findings that his services were fair, reasonable, and necessary, noting that, relative to the fees charged by other attorneys, particularly those in Howard County... as -8-

10 well as the legal factors set out by the Court of Appeals, Mr. Markuski s fees were reasonable. The court next examined the financial resources and needs of the parties regarding the proper apportionment of the fees. In that regard, the court stated that it considered its prior as well as most recent findings regarding the parties respective present financial situations as well as their entire turbulent history in this case, particularly [Mr. McNeil s] excessive cruelty in contributing to their breakup; a finding that has been confirmed upon appeal. The court then engaged in an analysis of the bills submitted by Mr. Markuski, but because Mr. McNeil s appeal involves only the authority to award fees, as opposed to the court s breakdown, it is not necessary to set forth this analysis. The court ultimately agreed with Ms. McNeil s analysis regarding apportionment of fees. The court stated that Mr. McNeil was the main contributor to and primary generator and initiator of litigation requiring the BIA to generate large fees. It explained: in awarding the apportionment of the BIA s fees as noted above, the [c]ourt has simply assigned payment to the party or parties it found was objectively responsible for the generation of the fee for the specific service itemized. On June 17, 2013, Mr. McNeil noted his appeal to this Court. DISCUSSION Mr. McNeil raises two contentions in his brief: (1) the court erred in refusing to void or vacate the order appointing V. Peter Markuski as Best Interest Attorney and any -9-

11 subsequent order dealing with the BIA because the initial order failed to meet the requirements of MD Rule (c)(F) in that there is no date or event that terminates his appointment ; and (2) the court erred in granting attorney s fees because the appointment order was not made in accordance with Maryland Law. Both contentions address the same underlying argument, i.e., whether the order appointing Mr. Markuski was valid. Mr. Markuski contends that the court properly denied Mr. McNeil s motion to strike and motion to set aside all orders concerning the BIA, and it properly granted his motion for fees. He presents multiple arguments in this regard, including that Mr. McNeil provided no 5 legal authority supporting sanctions for the violation of Rule Ms. McNeil adopts the arguments of Mr. Markuski. She makes the additional contention that, even if we were to find error, the error was harmless and not detrimental to Mr. McNeil. The ultimate issue raised on appeal is whether the order appointing Mr. Markuski as BIA was void because it failed to comply with Rule (c)(1), which provides, in pertinent part, as follows: An order appointing counsel shall:... (F) state when the 5 Mr. McNeil filed a motion to strike Mr. Markuski s brief on the ground that Mr. Markuski is not representing any party in McNeil v. McNeil. We reject the contention that Mr. Markuski is not authorized to submit a brief to this Court because he is not a party to the case. See Lapides v. Lapides, 50 Md. App. 248, 252 (1981) (in rejecting the motion to strike the brief of the children s attorney in support of his award of attorney s fees, we stated that minors are not only entitled to representation, but their counsel is entitled to compensation from the parents, and it is implicit therein that the children have standing to do that which is necessary to protect both counsel and themselves ). Accordingly, we deny Mr. McNeil s motion to strike. -10-

12 6 appointment order terminates. The circuit court found that, in the absence of any legal precedent to the contrary, the remedy for this deficiency was not to strike Mr. Markuski, nor to vacate all orders involving him. On appeal, appellant cites no case law to the contrary. This alone is a reason to reject appellant s claim. See Anderson v. Litzenberg, 115 Md. App. 549, (1997) (refusing to address argument because appellants failed to cite any legal authority to support their contention of error). In any event, we agree with the circuit court that the lack of a termination date in the order did not invalidate the appointment order. Although the Rule provides that an order appointing counsel shall state when the appointment order terminates, and the use of the word shall ordinarily is viewed as mandatory, if a statute governs the actions of an arbiter, such as a court or an administrative agency, its use of the word shall will generally be interpreted as directory, rather than mandatory. G&M Ross Enter. Inc. v. Bd. of License Commr s of Howard Cnty., Md, 111 Md. App. 540, (1996). Accord Pope v. Sec y of Pers., 46 Md. App. 716, 718 (1980) (noting that the cases in which Maryland 6 In a sentence in his brief to this Court, Mr. McNeil also argues that since the circuit court ignored the requirement for valid appointment orders, it has violated [his] equal th protection rights guaranteed to him by the 14 Amendment of the U.S. Constitution and Article 24 of the Maryland Declaration of Rights. He provides no argument or legal support for this argument, and, accordingly, we decline to address it. See Klauenberg v. State, 355 Md. 528, 552 (1999) ( Arguments not presented in a brief or not presented with particularity will not be considered on appeal. ); Honeycutt v. Honeycutt, 150 Md. App. 604, 618 (when party fails to adequately brief an argument, court may decline to address it on appeal), cert. denied, 376 Md. 544 (2003); Anderson v. Litzenberg, 115 Md. App. 549, (1997) (refusing to address argument because appellants failed to cite any legal authority to support their contention of error). -11-

13 courts have held that the use of shall is not mandatory dealt with duties imposed on the arbiter of the controversy as opposed to the adversary ) (quoting In Re: James S., 286 Md. 702, 708 (1980)). This is particularly true when there is no sanction specified for a violation of the provision. See G& M Ross, 111 Md. App. at 545 (rule directing the Board of License Commissioners of Howard County to issue an order within 30 days was intended to be directory rather than mandatory, and the failure to comply did not invalidate the order). Here, Rule governs the actions of a court appointing a BIA, not the actions of the parties, and it does not provide any sanction for noncompliance. Accordingly, we interpret the use of the word shall in the rule as directory, rather than mandatory. Accordingly, the court s noncompliance with this portion of the rule does not require that the order appointing Mr. Markuski, or any subsequent orders involving him, be vacated. Indeed, to vacate the court s order appointing Mr. Markuski based on the court s failure to provide a termination date would not punish the arbiter, the court, but rather, it would punish Mr. Markuski, and potentially the children, if issues of visitation and custody that Mr. Markuski assisted in resolving needed to be revisited. The circuit court properly denied Mr. McNeil s motion to vacate the appointment of Mr. Markuski as BIA, and it properly granted Mr. Markuski s motion for fees. MOTION TO STRIKE BRIEF DENIED. JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT. -12-