Lead Opinion
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 litem
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.
On March 23, 2004, Denise Taylor, Petitioner, and Diane Miskimon,
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
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 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.).
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
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”
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.
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 Law Article áuthorized the lower court to impose guardian ad litem fees against Taylor, Taylor had “impliedly consented to the court’s action”
The court did not expressly state the basis for its order requiring appellant to pay appellee’s attorney’s fees. Appellant correctly observes, however, that the only possible bases are the statutes contained in Md.Code (2006), § 1-202 and § 12-103 of the Family Law Article (“F.L.”). Appellant contends that neither authorizes a court to order the grandmother of minor children, involved in a custody dispute with the parents, to pay the fees of counsel appointed to represent the minor children. Appellant also contends, because the issue is one of subject matter jurisdiction, the issue cannot be waived.
Section 1-201 of the Family Law Article provides that an equity court has jurisdiction over the custody, visitation, guardianship, and support of a child.
Section 1-202 provides that
[i]n an action in which custody, visitation rights, or the amount of support of a minor child is contested, the court may:
(1) appoint to represent the minor child counsel who may not represent any party to the action; and
(2) impose against either or both parents counsel fees.
We agree with appellant that the statute does not authorize the court to impose fees against appellant. The plain language is that the court can impose fees against parents, not grandparents. See In re Ramont K.,305 Md. 482 [,505 A.2d 507 ] (1986) (grandparent does not come within the term “parents” as used in Md.Code (1974, 1984 Repl.Vol.) § 3-829 of the Courts and Judicial Proceedings Article pertaining to restitution on behalf of children involved in certain delinquent acts).
Section 12-103 of the Family Law Article provides that a court “may award to either party the costs and counsel fees that are just and proper under all the circumstances” in a custody proceeding. Generally, this section applies when a party requests a court to order another party to pay the*121 party’s counsel fees. We must read F.L. §§ 1-202 and 12-103 as being consistent with each other, if at all possible. It is questionable whether § 12-103 encompasses the payment of fees incurred by counsel for minor children, see Goldberg v. Miller,371 Md. 591 [,810 A.2d 947 ] (2002), but assuming it does when a parent is ordered to pay, see Carroll County Department of Social Services v. Edelmann,320 Md. 150 [,577 A.2d 14 ] (1990), it does not expressly authorize an order requiring a grandparent to pay such fees. § 1-202 expressly limits such orders to parents. Consequently, § 12-103 did not authorize the order requiring appellant to pay appellee’s fees.
Despite the above, we shall affirm the court’s order because appellant impliedly consented to the court’s action. Unquestionably, the court had subject matter jurisdiction to determine issues of custody and visitation, and it had personal jurisdiction over the parties and the children. The court had statutory authority to appoint counsel for the children and apportion fees, and while it did not have authority to award fees against appellant, appellant consented to apportionment of fees, between the parties, by the court.
Appellant requested the court to appoint a guardian ad litem/counsel. After the court entered an order reserving for future determination the appropriate apportionment of fees between the parties, appellant not only failed to object but complied with the order by depositing $1,000 into an escrow account. Appellant impliedly consented to the apportionment of appellee’s fees. See Van Schaik v. Van Schaik,90 Md.App. 725 [,603 A.2d 908 ] (1992) (a party was held to have consented to appointment of counsel for a minor even though proceeding was uncontested).
The intermediate appellate court also rejected Taylor’s arguments that the guardian ad litem bill was excessive, that the bill did not reflect services provided to the children, and that the circuit court failed to consider the circumstances of the parties mandated by statute. Additionally, the panel concluded that Taylor “was not deprived of due process.”
II. Discussion
Taylor argues that the circuit court erred in assessing guardian ad litem fees against her because there is no statute or contractual understanding into which she entered to support such an assessment. Taylor contends that the plain language of Section 1-202 of the Family Law Article only permits the court to assess guardian ad litem fees against a parent, not a grandparent; Taylor also argues that Section 12-103 of the Family Law Article is inapplicable because it involves the payment of “counsel fees” for the benefit of an aggrieved party, and not payment of guardian ad litem fees. Taylor contends that she did not waive her right to object to the guardian ad litem fees by depositing $1,000.00 into her attorney’s escrow account and by failing to contest the fees until Mandel filed his petition because she did not intend to waive her objection to the guardian ad litem fees and because she deposited the money into her attorney’s escrow account involuntarily pursuant to a court order.
Conversely, Mandel argues that the circuit court did not err in imposing guardian ad litem fees against Taylor, contending that such authority exists under either Section 1-202 or Section 12-103 of the Family Law Article. Mandel contends that the Legislature did not intend to limit the term “parent” in Section 1-202 to just a father and a mother, and that Taylor could be assessed fees as a “person acting as a parent.” Section 12-103, Mandel asserts, authorizes a court to assess guardian ad litem fees against any party, citing Carroll County Department of Social Services v. Edelmann,
If we agreed with Mandel that Taylor did not adequately preserve her statutory argument, that decision could be initially dispositive. Although we do not agree with Mandel, we shall address the preservation issue first.
The general rule of preservation is that a party will only be permitted to raise on appeal an error to which he has interposed a seasonable objection. Maryland Rule 2-517(c) (“For purposes of review by the trial court or on appeal of any other ruling or order, it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court. The grounds for the objection need not be stated unless these rules expressly provide otherwise or the court so directs. If a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection at that time does not constitute a waiver of the objection.”). See also Tierco Md., Inc. v. Williams,
While it is apparent that Taylor, in both the circuit court and the Court of Special Appeals, argued that she could not be held responsible for payment of the guardian ad litem fees because she was not a “parent” under Section 1-202 of the Family Law Article and because Section 12-103 only pertains to “counsel fees,” Mandel argues, nevertheless, that Taylor’s objection to the guardian ad litem fees was too late, ergo, untimely. In effect, Mandel contends that Taylor had to object at that time to the October 18, 2004 amended order appointing the guardian ad litem, requiring Taylor to deposit $1,000.00 into her attorney’s escrow account, and reserving to the court the power to determine the apportionment of the guardian ad litem fees at a later date.
For support, Mandel cites Steinhoff v. Sommerfelt,
The appellant may not exploit an appeal from a post-trial procedure as a device to outflank the non-preservation bar*125 to an appeal from a trial procedure. One may not preserve an issue nunc pro tunc.
The appeal as to this contention, whatever it is, does not turn square corners. If, indeed, it is the ... monetary award itself that is being appealed from, we will not allow the appellant’s reference to raising the issue in a post-trial motion to serve as a smokescreen obscuring the earlier and fatal non-preservation.
Id. at 483-84,
On the Steinhoff foundation, Mandel argues that Taylor’s failure to object after the October 18th amended order was entered is fatal because guardian ad litem fees were addressed in that order. Taylor argues that she was not required to object to the amended order because it did not define what, if any, would be her liability for the guardian ad litem fees and because it was issued without a hearing and without giving her an opportunity to object. Taylor essentially contends that the issue to which she subsequently objected was not ripe on October 18th in order to require her to raise any objection. To the October 18, 2004 amended order we now turn.
We are in accord with our intermediate appellate court colleagues that court orders are construed in the same manner as other written documents and contracts, Md. Comm’n on Human Relations v. Downey Communications, Inc.,
The October 18, 2004 amended court order, with its three basic provisions, was submitted by Mandel and signed by the circuit court without a hearing. The first aspect of the court order was the appointment of Mandel as guardian ad litem. Although Mandel was not suggested by Taylor, she has not disputed his appointment as the guardian ad litem, because she requested the appointment.
The second aspect of the court order required Taylor to deposit $1,000.00 into her attorney’s escrow account. Mandel argues that the order for Taylor to deposit $ 1,000.00 into her attorney’s escrow account should have triggered an objection by Taylor, at which time she would have had to raise her statutory argument. In this regard, while “a voluntary act of a party which is inconsistent with the assignment of errors on appeal normally precludes that party from obtaining appellate review,” Franzen v. Dubinok,
The $1,000.00 was to be held “subject to further Order of this Court regarding apportionment between the parties of
The relevant portion of Section 1-202 of the Family Law Article, Maryland Code (1999, 2004 Repl.Vol.), states, [i]n an action in which custody, visitation rights, or the amount of support of a minor child is contested, the court may ... impose against either or both parents counsel fees. (emphasis added). The term “parent” is not defined in Section 1-202 nor anywhere in Title 1 of the Family Law Article, although when the General Assembly has intended a specific definition of parent, it has provided such.
Given that we presume that the Legislature has acted with full knowledge of prior and existing law, legislation and policy, Kelly,
The legislative history surrounding Section 1-202 is also instructive. Contrary to Mandel’s assertion, the term “parent” has been included in Section 1-202 since its inception. Section 1-202 was originally enacted as Section 3-604 of the Courts and Judicial Proceedings Article, which stated:
The court, for good cause, may appoint an attorney to represent a minor in any action brought under this subtitle in which the issue of custody, visitation rights, or the amount of support is contested and may levy counsel fees against either or both parents as is just and proper under all the circumstances. An attorney appointed to represent a minor may not represent any party to the action.
Certainly, third party custody issues have been before this Court for many years. In Ross v. Hoffman,
In 2003, we considered another third party custody issue in Shurupoff v. Vockroth,
One of our recent cases, McDermott v. Dougherty,
As a result, we agree with both the circuit court and the Court of Special Appeals and hold that the circuit court did not possess the authority to assess guardian ad litem fees against Taylor, the maternal grandmother of the children, under Section 1-202 of the Family Law Article because the use of the term “parent” only permits the court to assess the fees on a mother or a father.
Although the circuit court and the Court of Special Appeals disagreed, Mandel also continues to argue that the authority to assess guardian ad litem fees against Taylor exists pursuant to Section 12-103(a) of the Family Law Article, Maryland Code (1999, 2004 RephVol.), which provides that
[t]he 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; or
(2) files any form of proceeding:
(i) to recover arrearages of child support;
(ii) to enforce a decree of child support; or
(iii) to enforce a decree of custody or visitation.
Rather, we recently have held in Goldberg v. Miller,
Section 12-103(a) allows the court, at its discretion, to award counsel fees to “either party” of a domestic case where issues of child support, custody, or visitation are involved. Code, § 12-103(a) of the Family Law Article. Section 12-103(a), though, does not concern attorney’s fees that a court may award to a guardian ad litem. See Petrini [v. Petrini,336 Md. 453 , 467-68,648 A.2d 1016 , 1022-23 (1994) ]. Rather, it refers to any counsel fees accrued by one party in applying for or defending a matter involving child support, child custody, or visitation. Code, § 12-103(a) of the Family Law Article. The party, therefore, rather than the child, receives the immediate benefit from an award under this section, unlike the expenses the Legislature addressed under Section 12—101 (d)(ii), which governs medical support and neonatal expenses, and Section 12-102(b), which governs orders to required health insurance coverage for a child. Thus, courts may not treat an award under Section 12-103(a) as child support.
Id. at 606,
In the absence of statutory authority for the imposition of guardian ad litem fees against Taylor, Mandel alternatively argues that Taylor waived her right to challenge the guardian ad litem fees because she requested the appointment of the guardian ad litem and in fact deposited $1,000.00 into her attorney’s escrow account. The circuit court and the Court of Special Appeals agreed with Mandel; we disagree.
We have defined waiver as the intentional relinquishment of a known right. In re Blessen H.,
Mandel’s argument, built on the premise that Taylor waived her right to object to the assessment of the guardian ad litem fees because she requested the guardian ad litem appointment and deposited $1,000.00 into her attorney’s escrow account, relies upon Van Schaik v. Van Schaik,
Her deposit of $1,000.00 into her attorney’s escrow account in compliance with a court order, moreover, was not voluntary relinquishment of a right, ergo waiver, as we noted in Board of Physician Quality Assurance v. Levitsky,
There was no voluntary act here on the part of the Board inconsistent with its position that the circuit court erred in vacating its order. The Board filed a timely appeal to the Court of Special Appeals, sought a stay from the circuit court, and even petitioned for certiorari in this Court. When the stay was denied, the Board had no choice but to act in conformance with the circuit court’s order; any further withholding of Dr. Levitsky’s license would have*138 been patently unlawful and may have subjected the Board and its members to serious legal consequences.
Id. at 200,
In conclusion, there is no statutory authority authorizing imposition of guardian ad litem fees against Taylor, the mater
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO VACATE THAT PART OF THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY ALLOCATING GUARDIAN AD LITEM FEES AGAINST PETITIONER. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT.
BELL, C.J., RAKER, and CATHELL, JJ., Dissent.
Notes
. As explained by Judge John C. Eldridge in Fox v. Wills,
. “GAL” refers to guardian ad litem.
. Because we answer question one in the Petitioner’s favor, we need not address the other three questions.
. Diane Miskimon signed the initial complaint and was listed as a party. The parties agreed to dismiss Ms. Miskimon as a plaintiff, and she is not involved in this appeal.
. Mandel's first petition for guardian ad litem fees incorrectly stated that "by prior Amended Order of this Court, the parties were to provide $2,000 each to their respective attorneys to be held in escrow to offset the costs of the GAL's fees.” Mandel's amended petition for guardian ad litem fees is identical except that it corrected this mistake, stating that "by prior Amended Order of this Court, the parties were to provide $1,000 each to their respective attorneys to be held in escrow to offset the costs of the GAL's fees.”
. Section 1-202 of the Family Law Article, Maryland Code (1999, 2004 Repl.Vol.), provided:
Appointment of counsel for minor.
In an action in which custody, visitation rights, or the amount of support of a minor child is contested, the court may:
(1) appoint to represent the minor child counsel who may not represent any party to the action; and
(2) impose against either or both parents counsel fees.
Section 1-202 was amended in 2006 and currently states:
(a) In general.—In an action in which custody, visitation rights, or the amount of support of a minor child is contested the court may:
(1) (i) appoint a lawyer who shall serve as a child advocate attorney to represent the minor child and who may not represent any party to the action; or
(ii) appoint a lawyer who shall serve as a best interest attorney to represent the minor child and who may not represent any party to the action; and
(2) impose against either or both parents counsel fees.
(b) Standard of care.—A lawyer appointed under this section shall exercise ordinary care and diligence in the representation of a minor child.
Md.Code (1999, 2006 Repl.Vol.), § 1-202 of the Family Law Article.
. Section 12-103 of the Family Law Article, Maryland Code (1999, 2004 Repl.Vol.), stated:
Award of costs and fees
(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; or
(2) files any form of proceeding:
(i) to recover arrearages of child support;
(ii) to enforce a decree of child support; or
(iii) to enforce a decree of custody or visitation.
(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.
(c) Absence of substantial justification.—Upon a finding by the court that there was an absence of substantial justification of a party for prosecuting or defending the proceeding, and absent a finding by the court of good cause to the contrary, the court shall award to the other party costs and counsel fees.
Section 12-103 has not been amended. See Md.Code (1999, 2006 Repl.Vol.), § 12-103 of the Family Law Article.
. The Biedenbacks argued that they were exempt from paying the guardian ad litem fees under Maryland Rule l-325(a), which provides in relevant part that "[a] person unable by reason of poverty to pay any filing fee or other court costs ordinarily required to be prepaid may file a request for an order waiving the prepayment of those costs,” and Maryland Rule 2-603(e), which states:
(e) Waiver of costs in domestic relations cases—Indigency. In an action under Title 9, Chapter 200 of these Rules, the court shall waive final costs, including any compensation, fees, and costs of a master or*119 examiner if the court finds that the party against whom the costs are assessed is unable to pay them by reason of poverty. The party may seek the waiver at the conclusion of the case in accordance with Rule l-325(a). If the party was granted a waiver pursuant to that Rule and remains unable to pay the costs, the affidavit required by Rule 1-325(a) need only recite the existence of the prior waiver and the party’s continued inability to pay.
. After noting her appeal to the Court of Special Appeals, Taylor sent a check for $6,821.73 to Mandel "to be deposited and kept in your escrow account" pending the appeal. The circuit court subsequently recorded a judgment against Taylor. Taylor filed a motion to vacate in response, which is still pending in the trial court.
. Mandel contends that there is a discrepancy between Taylor's Notice of Appeal and her Civil Appeal Information Report. He asserts that it is unclear what order Taylor was appealing, because the Notice of Appeal stated that Taylor was appealing the January 31, 2006 order granting guardian ad litem fees to Mandel, but the Civil Information Report provided that Taylor was appealing the May 5, 2005 motion by guardian ad litem to recover fees. However, not only did Mandel acknowledge in his own Civil Appeal Information Report that Taylor was appealing from the January 2006 ruling, but also pursuant to Maryland Rule 8-205(f), the information contained in the information report should not “(1) be treated as admissions, (2) limit the disclosing party in presenting or arguing that party’s case, or (3) be referred to except at a prehearing or scheduling conference."
. The preservation argument also implicates the doctrine of acquiescence on Taylor's part, i.e., whether her silence during the term of Mandel’s work constitutes agreement to payment. We have opined that, " '[acquiescence ... has been described as a quasi-estoppel,’ ” Alvey v. Alvey, 220 Md. 571, 575,
1. There must be conduct—acts, language, or silence—amounting to a representation or a concealment of material facts.
2. These facts must be known to the party estopped at the time of his said conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him.
3. The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel, at the time when such conduct was done, and at the time when it was acted upon by him.
4. The conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon. There are several familiar species in which it is*128 simply impossible to ascribe any intention or even expectation to the party estopped that his conduct will be acted upon by the one who afterwards claims the benefit of the estoppel.
5. The conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it.
6. He must in fact act upon it in such a manner as to change his position for the worse; in other words, he must so act that he would suffer a loss if he were compelled to surrender or forego or alter what he has done by reason of the first party being permitted to repudiate his conduct and to assert rights inconsistent with it.
Pomeroy, supra, at 191-92 (emphasis in original).
Acquiescence, however, requires knowledge of liabilities, which, as we have discussed above, Taylor did not have. See City of Bowie v. MIE, Props., Inc.,
. See, e.g., Md.Code (1999, 2006 Repl.Vol.), § 5-301(f) of the Family Law Article (defining parent as "an individual who, at the time a petition for guardianship is filed under this subtitle or at any time before a court terminates the individual's parental rights,” is the father or the mother, but "does not include an individual whom a court has adjudicated not to be a father or mother of a child”); id. at § 5-3A-01 (e) (defining parent as "an individual who, at the time a petition for guardianship or adoption is filed under this subtitle or at any time before a court terminates the individual’s parental rights,” is the father
. Section 3-829 of the Courts and Judicial Proceedings Article, Maryland Code (1974, 1984 Repl.Vol.), as applied in In re Ramont K., provided in relevant part:
(a) The court may enter a judgment of restitution against the parent of a child, or the child in any case in which the court finds a child has committed a delinquent act and during the commission of that delinquent act has:
(1) Stolen, damaged, or destroyed the property of another;
(2) Inflicted personal injury on another, requiring the injured person to incur medical, dental, hospital, or funeral expenses.
. Many of our sister states have also articulated that compliance with a court order is not a waiver. See Del Rio Land, Inc. v. Haumont,
Dissenting Opinion
RAKER, J., dissenting, joined by BELL, C.J., and CATHELL, J.
I would affirm the judgment of the Court of Special Appeals. The intermediate appellate court affirmed on the grounds that Taylor impliedly consented to the court’s action.
Judge James Eyler, writing for the panel, in the unreported opinion below, stated as follows:
“Unquestionably, the court had subject matter jurisdiction to determine issues of custody and visitation, and it had personal jurisdiction over the parties and the children. The court had statutory authority to appoint counsel for the children and apportion fees, and while it did not have authority to award fees against appellant, appellant consented to apportionment of fees, between the parties, by the court.
Appellant requested the court to appoint a guardian ad litem/counsel. After the court entered an order reserving for future determination the appropriate apportionment of fees between the parties, appellant not only failed to object*140 but complied with the order by depositing $1,000 into an escrow account. Appellant impliedly consented to the apportionment of appellee’s fees.”
I agree.
Petitioner could have, and should have, asked the court to reconsider the order providing that each party advance to counsel of record the sum of $1,000 until further order apportioning counsel fees. The order was entered without a hearing and although petitioner paid the money pursuant to the court order, petitioner could not request the appointment of a guardian ad litem, pay the money, and then sit quietly, reap the benefits of the attorney, and then refuse to pay her fair share. She acquiesced and impliedly consented.
Chief Judge BELL and Judge CATHELL have authorized me to state that they join in this dissenting opinion.