219 A.3d 66
Md. Ct. Spec. App.2019Background
- Parents of three executed a Memorandum of Agreement (May 10, 2017) incorporated into a consent order (May 12, 2017) resolving custody, support, alimony, and some property issues.
- Both parties filed contempt petitions (Oct 2017); after a two-day bench trial the circuit court found Mother in contempt, dismissed Mother's petition, and ordered sanctions including suspension of Mother's tie‑breaking authority, travel/relocation restrictions, and $35,000 in attorney’s fees to Father’s counsel.
- Mother filed a one‑line Notice for In Banc Review; Father moved to dismiss the in banc appeal arguing the notice failed to reserve issues (relying on State v. Phillips).
- The in banc panel denied the motion to dismiss, reversed the contempt judgment, found the trial court blurred contempt and custody modification, held the contempt order lacked a lawful purge provision, and vacated the $35,000 fee award for failure to properly apply/consider Family Law §12‑103(b).
- On appeal to the Court of Special Appeals, the court held (1) Rule 2‑551 does not require enumeration of issues in the in banc notice for review of a final judgment and (2) the fee award was vacated because the record lacked the financial evidence required under FL §12‑103(b) (and the trial court did not clearly rely on §12‑103(c)).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the in banc panel had jurisdiction because Mother’s notice omitted issues/questions | Father: Phillips requires identification of points in the in banc notice; omission = no timely reservation = no jurisdiction | Mother: Rule 2‑551 requires reservation by objection under Rules 2‑517/2‑520, not listing issues in the notice; final‑judgment in banc notices need only invoke Rule 2‑551 | Held: No requirement to list issues in the in banc notice for review of a final judgment; in banc had jurisdiction. |
| Whether the trial court properly awarded attorney’s fees under FL §12‑103(c) (absence of substantial justification) | Father: Trial court found Mother lacked substantial justification, so §12‑103(c) applies and financial status need not be considered | Mother: Trial court’s statements show it considered parties’ finances, indicating it applied §12‑103(b); in any event court did not make clear §12‑103(c) findings | Held: Trial court did not clearly rely on §12‑103(c); because it appeared to apply §12‑103(b) the record lacked necessary financial evidence, so fee award vacated. |
| Whether the record contained sufficient evidence of parties’ financial status/needs to support a §12‑103(b) award | Father: fee award was reasonable and supported | Mother: inadequate evidence of financial status/needs; court did not address "needs" | Held: Record insufficient to support a §12‑103(b) award; remand for evidentiary hearing if court seeks fees under (b). |
| Whether the contempt order improperly modified custody / lacked a lawful purge provision | Father: supported sanctions requested (including suspending tie‑breaking authority) | Mother: sanctions constituted an improper custody modification and contempt order lacked required purge mechanism | Held: In banc correctly concluded the contempt order blurred contempt and custody modification and lacked a lawful purge provision; contempt vacated. |
Key Cases Cited
- State v. Phillips, 457 Md. 481 (2018) (interpreting Article IV §22 and Rule 2‑551; held issues must be timely reserved and explained limits on in banc review of interlocutory rulings)
- Hartford Fire Ins. Co. v. Estate of Sanders, 232 Md. App. 24 (2017) (explains that an in banc court functions as an appellate tribunal; standards of review for in banc decisions)
- McNeece v. Montgomery County, 311 Md. 194 (1988) (discusses historical reservation requirement and upheld Rule 2‑551 procedures abolishing formal contemporaneous exception requirement)
- Costigin v. Bond, 65 Md. 122 (1886) (early articulation that reservation must be made "during the sitting" to preserve in banc jurisdiction)
- Davis v. Petito, 425 Md. 191 (2012) (explains that an award under FL §12‑103(c) based on absence of substantial justification does not require consideration of parties' financial status)