Guillaume v. Guillaume ( 2019 )

Dominique Guillaume v. Chantal Guillaume, No. 2928, September Term 2018, filed.
Opinion by Beachley, J.
IN BANC APPEALS – RESERVATION OF ISSUES
IN BANC APPEALS – REQUIREMENTS FOR NOTICE FOR IN BANC REVIEW
Facts:
Dominique Guillaume (“Father”) and Chantal Guillaume (“Mother”) are the parents of
three children. On May 10, 2017, the parties executed a “Memorandum of Agreement” in
an effort to resolve legal and physical custody, child support, alimony, and some property
issues. Two days later, the Circuit Court for Montgomery County entered a consent order
incorporating the provisions of the Memorandum of Agreement.
By October 2017, both Father and Mother filed had petitions for contempt. Following a
two-day hearing, the circuit court took the matters under advisement. Ultimately, the court
found Mother in contempt, and dismissed Mother’s contempt petition against Father. In
addition to its contempt rulings, the court ordered Mother to pay Father $35,000 in
attorney’s fees. Mother timely filed a Notice for In Banc Review.
Father filed a motion to dismiss Mother’s in banc appeal. In his motion, he claimed that
the in banc panel lacked jurisdiction to review Mother’s appeal pursuant to State v. Phillips,
457 Md. 481 (2018), because Mother’s Notice for In Banc Review “listed no points or
questions to be reviewed and gave no reasons why the Contempt Order was incorrect.”
The in banc panel denied Father’s motion to dismiss the appeal, and ultimately vacated the
contempt order as well as the circuit court’s award of attorney’s fees. In vacating the award
of attorney’s fees, the in banc panel determined that the circuit court’s contempt order
improperly blurred the lines between a custody modification order and a contempt order.
The in banc panel also held that the circuit court erred by failing to properly consider the
factors set forth in Md. Code (1984, 2012 Repl. Vol.), § 12-103(b) of the Family Law
Article (“FL”). Father timely appealed the in banc panel’s decision.
Held: Affirmed.
Maryland Rule 2-551, which governs the procedures for seeking in banc review, does not
require an in banc appellant to include the issues for review in the notice of appeal in order
to properly “reserve” them. That Rule simply requires a party to reserve issues in the
manner set forth in Rules 2-517 and 2-520. Notably, Rules 2-517 and 2-520 appear to
contemplate lodging objections to rulings that precede the final judgment, and require the
objecting party to lodge the objection to those “non-final” rulings as soon as practicable.
Similarly, Phillips does not hold that an in banc appellant must include the issues for
review in the notice of appeal in banc. There, Phillips moved in limine to exclude evidence
from his pending murder trial. Phillips, 457 Md. at 484. When he prevailed, the State filed
a notice of appeal in banc from the circuit court’s interlocutory order granting Phillips’s
motion in limine. Id. at 484-85. The in banc panel ultimately reversed the circuit court’s
order. Id. at 485. On appeal, the Court of Appeals held that, in the context of that
interlocutory order, the State did not timely object to the in limine ruling and therefore did
not reserve issues for in banc review. Id. at 511.
Here, because the in banc panel rendered a final judgment, Mother could appeal that
judgment in the same way that a party may appeal a final judgment from the circuit court
to the Court of Special Appeals. Accordingly, neither Rule 2-551 nor Phillips require an
in banc appellant to include issues in a notice of appeal in banc. Mother therefore was not
required to include issues for review in her Notice for In Banc Review, and the in banc
panel had jurisdiction to review the circuit court’s decision.
Additionally, the in banc panel did not err in vacating the attorney’s fees award. Contrary
to Father’s assertions, the circuit court did not appear to award attorney’s fees under FL §
12-103(c). Instead, in rendering its decision, the court specifically mentioned factors that
appear in FL § 12-103(b), but not in FL § 12-103(c). To the extent the court awarded
attorney’s fees under FL § 12-103(b), it erred because there was insufficient evidence in
the record concerning the parties’ financial circumstances and needs.
Circuit Court for Montgomery County
Case No. 138753FL
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2928
September Term, 2018
DOMINIQUE GUILLAUME
v.
CHANTAL GUILLAUME
Reed,
Beachley,
Gould,
JJ.
Opinion by Beachley, J.
Filed: October 30, 2019
*Arthur, J., did not participate in the Court’s
decision to designate this opinion for publication
pursuant to Maryland Rule 8-605.1.
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-10-30 15:12-04:00
Suzanne C. Johnson, Clerk
In this appeal, Dominique Guillaume (“Father”) challenges the decision of an in
banc panel in the Circuit Court for Montgomery County which reversed the trial court’s
contempt finding against Chantal Guillaume (“Mother”). Father initially asserts that the in
banc panel did not have jurisdiction to entertain Mother’s request for in banc review.
Alternatively, Father argues that, assuming the in banc panel had jurisdiction to hear
Mother’s appeal, it erred by vacating the trial court’s $35,000 attorney’s fee award against
Mother. We conclude that the in banc panel had jurisdiction to consider Mother’s appeal,
and that it did not err in vacating the attorney’s fee award and remanding the case for further
proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The parties are the parents of three children. On May 10, 2017, the parties executed
a “Memorandum of Agreement,” which, inter alia, resolved legal and physical custody of
the children, child support, alimony, and some property issues. On May 12, 2017, the court
entered a consent order that incorporated the terms and provisions of the Memorandum of
Agreement.
By October 2017, both parties had filed petitions for contempt. Father’s contempt
petition alleged that Mother violated the joint legal custody provisions of the consent order
because she “failed and refused to include [Father] in decision-making regarding the minor
children.” The specifics of Father’s allegations of contempt are immaterial to our
resolution of his appeal, but they included: 1) Mother’s failure to inform Father that she
planned to move the children out of Montgomery County and 2) Mother’s failure to inform
Father of important educational and medical decisions involving the children. Mother’s
contempt petition alleged that Father violated the consent order by failing to apply for
tuition benefits available through his employment with the International Monetary Fund
on behalf of the parties’ eldest child.
After a two-day hearing on both petitions, the circuit court took the matters under
advisement. On February 9, 2018, the court delivered a bench opinion, followed by a
written order dated February 22, 2018 (docketed on March 5, 2018). The court found
Mother in contempt of the consent order for multiple reasons and dismissed Mother’s
contempt petition against Father. After finding Mother in contempt, the court addressed
the sanctions to be imposed as a result of her conduct. As to the children, the court: 1)
precluded Mother from exercising her tie-breaking decision-making authority as provided
in the consent order until June 30, 2019, or until further order of court; 2) prohibited Mother
from moving the children outside of Montgomery County or traveling with the children
outside the Washington, D.C. metropolitan area without Father’s written consent; and 3)
ordered Mother to rescind in writing any form she had submitted to Montgomery County
Public Schools requesting authorization for the parties’ middle child to graduate early from
high school. The court also ordered Mother to pay $35,000 in attorney’s fees directly to
Father’s counsel.
On March 15, 2018, Mother moved to alter or amend the contempt order, which the
court denied on April 20, 2018. On April 27, 2018, Mother filed a Notice for In Banc
Review. She filed her in banc memorandum on June 4, 2018, and Father filed his
2
memorandum on June 25, 2018.1 On July 24, 2018, Father moved to dismiss Mother’s
request for in banc review, asserting that the in banc panel had no jurisdiction because
Mother’s Notice for In Banc Review “listed no points or questions to be reviewed and gave
no reasons why the Contempt Order was incorrect.” Father based his motion to dismiss on
a recently issued Court of Appeals opinion, State v. Phillips, 457 Md. 481 (2018), a
decision that we will discuss at length infra. The in banc panel denied Father’s motion to
dismiss.
After a hearing, the in banc panel issued a written opinion on October 26, 2018.
The in banc panel reversed the trial court’s judgment of contempt. In doing so, the in banc
panel concluded that the trial court abused its discretion by using a contempt proceeding
to modify a child custody order. Specifically, the in banc panel determined that the trial
court’s suspension of Mother’s tie-breaking authority and its imposition of restrictions on
Mother’s ability to relocate and travel with the children were not proper civil contempt
sanctions. The in banc panel further determined that the trial court’s contempt order was
deficient because it failed to contain a lawful purge provision as required by Maryland Rule
15-207(d)(2). Finally, the in banc court vacated the attorney’s fees award, concluding that
the trial court failed to properly consider the factors set forth in Md. Code (1984, 2012
Repl. Vol.), § 12-103(b) of the Family Law Article (“FL”). Father timely noted this appeal.
1
The parties stipulated to an extension of time for filing their Rule 2-551(c)
memoranda.
3
STANDARD OF REVIEW
In Hartford Fire Ins. Co. v. Estate of Sanders, 232 Md. App. 24 (2017), Judge
Deborah Eyler, writing for this Court, thoroughly explained the appropriate standard of
review for appeals from decisions in banc. There, Judge Eyler explained that an in banc
court “functions as a separate appellate tribunal[.]” Id. at 37 (internal quotation marks
omitted) (quoting Bienkowski v. Brooks, 386 Md. 516, 553 (2005)). Because of its status
as an appellate tribunal, the in banc court does not reconsider the decision of the trial court.
Id. (quoting Dabrowski v. Dondalski, 320 Md. 392, 396 (1990)). Rather, the in banc court
must “engage in appellate review of the trial court’s decision.” Id. (quoting Azar v. Adams,
117 Md. App. 426, 429 (1997)).
Judge Eyler proceeded to explain this Court’s role in reviewing a decision in banc,
stating, “As an appellate tribunal, the in banc court ‘is subordinate to this Court just as we
are subordinate to the Court of Appeals.’” Id. at 38 (quoting Azar, 117 Md. App. at 433).
Judge Eyler compared our Court’s role in reviewing an in banc decision to the Court of
Appeals’s role in reviewing a decision from our Court, noting that, in most instances, the
appellate court ultimately reviews the judgment of the trial court. Id. Consistent with this
principle, “When a pure question of law comes before either this Court or the Court of
Appeals, the standard of review is de novo, that is, neither Court gives any deference to the
trial court’s interpretation of the law.” Id. at 39 (citing Nesbit v. Gov’t Emps. Ins. Co., 382
Md. 65, 72 (2004)). When reviewing a trial court’s exercise of discretion, however, “our
standard is abuse of discretion, which is highly deferential to the trial court that is the
4
judicial body that exercised its discretion.” Id. at 40 (citing Goodman v. Commercial
Credit Corp., 364 Md. 483, 491-92 (2001)).
Judge Eyler also recognized that not every issue on appeal stems from a trial court
decision.
Of course, sometimes issues arise on appeal that emanate from this
Court to begin with and that will be decided by the Court of Appeals on
further review without reference to a decision of the trial court. For example,
if we were to dismiss an appeal for lack of an appealable order, the Court of
Appeals on further review would be assessing our decision, not a decision by
the trial court. Likewise, if we were to decide upon vacating a judgment that
a limited remand was the proper disposition, the Court of Appeals on further
review would be assessing our decision about that disposition, which
obviously originated with us, not with the trial court.
Id. at 40. Such is the case with the first issue on appeal here, where the in banc panel—
and not the trial court—made the legal determination that it had jurisdiction to consider
Mother’s in banc appeal.
Against this backdrop we review whether the in banc panel had jurisdiction to
review Mother’s in banc appeal—a purely legal question—without deference to the in banc
panel’s decision. Id. at 39. In reviewing the trial court’s attorney’s fees award, we apply
the abuse of discretion standard. See Sang Ho Na v. Gillespie, 234 Md. App. 742, 756
(2017) (stating that “We review an award of attorney’s fees in family law cases under an
abuse of discretion standard” (citing Steinhoff v. Sommerfelt, 144 Md. App. 463, 487
(2002))).
DISCUSSION
I. The In Banc Court Had Jurisdiction To Consider Mother’s Appeal
Before we discuss whether the in banc panel erred in vacating the trial court’s award
5
of attorney’s fees, we must first address Father’s contention that the in banc court lacked
jurisdiction to consider Mother’s appeal. Father asserts that Mother failed to timely reserve
questions for review because she did not include them in her Notice for In Banc Review,
thus divesting the in banc court of jurisdiction.2 In making his argument, Father relies on
the Court of Appeals’s decision in State v. Phillips, 457 Md. 481 (2018), a case interpreting
the constitutional and procedural requirements for in banc review. As we shall explain, we
hold that Phillips does not require an in banc appellant to state the questions for review in
the notice for in banc review filed pursuant to Rule 2-551.
In Maryland, “[a]n in banc panel review has been endearingly referred to as ‘the
poor person’s appeal.’” Remson v. Krausen, 206 Md. App. 53, 60 (2012) (quoting
Washabaugh v. Washabaugh, 285 Md. 393, 396 (1979)); see also Roth v. House of Refuge,
31 Md. 329, 333 (1869). This is so because in banc appellate review was created “to offer
disappointed litigants an alternative method of review that was faster and less expensive
than an appeal to the Court of Appeals, and that avoided the necessity of traveling to
Annapolis.” Id. (quoting Montgomery Cty. v. McNeece, 311 Md. 194, 201 (1987)).
To provide context for our discussion of Phillips and in banc procedures, we note
that Article IV, Section 22 of the Maryland Constitution states:
Where any trial is conducted by less than three Circuit Judges, upon
the decision or determination of any point, or question, by the Court, it shall
be competent to the party, against whom the ruling or decision is made, upon
motion, to have the point, or question reserved for the consideration of three
2
Mother’s “Notice for In Banc Review” states in its entirety: “Defendant, Chantal
Guillaume, by and through undersigned counsel, files this Notice for In Banc Review,
pursuant to Maryland Rule 2-551, to seek in banc review of the Contempt Order at Docket
No. 166.”
6
Judges of the Circuit, who shall constitute a court in banc for such purpose;
and the motion for such reservation shall be entered of record, during the
sitting at which such decision may be made; and the procedure for appeals to
the Circuit Court in banc shall be as provided by the Maryland Rules. The
decision of the said Court in banc shall be the effective decision in the
premises, and conclusive, as against the party at whose motion said points,
or questions were reserved; but such decision in banc shall not preclude the
right of Appeal by an adverse party who did not seek in banc review, in those
cases, civil or criminal, in which appeal to the Court of Special Appeals may
be allowed by Law. The right of having questions reserved shall not,
however, apply to trials of Appeals from judgments of the District Court, nor
to criminal cases below the grade of felony, except when the punishment is
confinement in the Penitentiary; and this Section shall be subject to such
provisions as may hereafter be made by Law.
MD. CONST. art. IV, § 22 (emphasis added). Relevant to this appeal, the Maryland
Constitution requires that the party noting an in banc appeal “reserve” the questions to be
reviewed on appeal “during the sitting at which such decision may be made[.]” Id.
Understanding the constitutional mandate of “reservation” of questions “during the sitting”
is important in the resolution of this case.
Additionally, Maryland Rule 2-551, which governs the procedures for seeking in
banc review, provides, in relevant part:
(a) When review by a court in banc is permitted by the Maryland
Constitution, a party may have a judgment or determination of any point or
question reviewed by a court in banc by filing a notice for in banc review.
Issues are reserved for in banc review by making an objection in the manner
set forth in Rules 2-517 and 2-520. Upon the filing of the notice, the Circuit
Administrative Judge shall designate three judges of the circuit, other than
the judge who tried the action, to sit in banc.
Regarding reservation, Rule 2-517(a), which governs evidentiary objections, requires the
objecting party to object as soon as the grounds for the objection become apparent. Rule
2-517(c), which concerns “other rulings or orders,” requires the party, “at the time the
7
ruling or order is made or sought, [to] make[] known to the court the action that the party
desires the court to take or the objection to the action of the court.” Rule 2-520(e), which
concerns jury instructions, requires a party objecting to an instruction to object “on the
record promptly after the court instructs the jury, stating distinctly the matter to which the
party objects and the grounds of the objection.” We note that Rules 2-517 and 2-520 appear
to contemplate lodging objections to rulings that precede the final judgment, and require
the objecting party to lodge the objection to those “non-final” rulings as soon as practicable.
We now turn to Phillips, where the Court of Appeals explicitly considered the
interplay between Article IV, Section 22 of the Maryland Constitution and Rule 2-551. In
Phillips, the Court chronicled the constitutional history of Article IV, Section 22, the case
law interpreting that provision, and the adoption of what is presently Maryland Rule 2-551.
There, Phillips was charged with first-degree murder and related firearms violations. Id.
at 484. Prior to his murder trial, Phillips filed a motion in limine to exclude evidence that
the State intended to use against him. Id. Following a four-day hearing, the circuit court
granted Phillips’s motion and entered an interlocutory order on February 12, 2016, which
excluded the objectionable documents and testimony. Id. The Court of Appeals described
the manner in which the State then sought in banc review of the circuit court’s interlocutory
order granting the motion in limine:
Six days later, on February 18, the State filed a request for in banc
review of that order. The request, itself, was bare-boned. It noted the State’s
objection to the order but listed no points or questions to be reviewed and
gave no reasons why the Order was incorrect. That was not done until the
State filed its memorandum on March 18, 2016, in which it listed seven
specific questions for review.
8
Id. at 484-85.
On March 3, 2016, the county administrative judge appointed three judges of the
circuit court, including a panel chair, to serve as the in banc review panel. Id. at 485.
Shortly thereafter, the in banc panel chair ordered the State to obtain a transcript of the
motion in limine proceedings and set dates for the filing of memoranda. Id. Following a
hearing in May, on June 3, 2016, the in banc panel reversed the order granting Phillips’s
motion in limine. Id. The in banc panel also denied Phillips’s motion to dismiss the State’s
in banc appeal even though the panel recognized that the ruling on the motion in limine
was not a final judgment and that, even if it were a final judgment, the State had no right
under Title 12 of the Courts and Judicial Proceedings Article to appeal the granting of
Phillips’s motion. Id. After the Court of Special Appeals reversed the judgment of the in
banc court, id. at 486, the Court of Appeals granted certiorari.
The Court of Appeals held that the in banc court lacked jurisdiction to consider the
State’s request for in banc review, relying on three separate bases to support its
determination. Id. at 511-13. First, the Court determined that the State did not timely
object to the in limine ruling and therefore did not reserve the issue for in banc review. Id.
at 511. Second, the Court held that, absent any law providing otherwise, an interlocutory
order such as the ruling on Phillips’s motion in limine, is not immediately appealable. Id.
at 512. Third, the Court held that, pursuant to the limited rights of appeal delineated in
Md. Code (1973, 2013 Repl. Vol., 2018 Supp.), § 12-302(c) of the Courts and Judicial
Proceedings Article (“CJP”), the State had no right to appeal the circuit court’s evidentiary
ruling on the motion in limine irrespective of its interlocutory nature. Id. at 512-13.
9
In this appeal, we are concerned only with the Phillips Court’s first basis for
concluding that the in banc court lacked jurisdiction—the timeliness of reserving issues for
appeal. In holding that the State had not timely preserved its objection for in banc review,
the Court explained:
[The motion court’s] ruling was made and docketed on February 12, 2016.
The State filed a request for in banc review on February 18, 2016, but did not
identify any points or questions for review or state reasons why [the trial
judge] was wrong in his ruling until March 17, 2016,[3] when it filed its
memorandum. Even if we were to give a more liberal interpretation to the
meaning of “sitting” than was given in Costigin [v. Bond, 65 Md. 122 (1986)]
because the ruling was not made in open court where a same-day objection
is more feasible, and look instead to whether the State properly objected to
the ruling as required by Rules 2-517 or 2-520, a month would not qualify as
a timely objection and thus not a timely reservation.
Id. at 511. Notably, the Court did not expressly hold that the State was required to identify
the “points or questions for review” in the notice of appeal in banc filed February 18, 2016.
Instead, the Court simply held that the State did not timely “identify any points or questions
for review or state reasons why [the trial judge] was wrong” until more than a month after
the unfavorable evidentiary ruling, and therefore failed to reserve those issues for in banc
review. Id.In reaching its holding, the Phillips Court thoroughly reviewed the history and
interpretation of the constitutional provision that an in banc appellant must timely (“during
the sitting”) reserve issues for appeal.
The first case to address the meaning of Article IV Section 22’s phrase “during the
3
Although not material to the holding in Phillips, there is a discrepancy whether the
State filed its memorandum on March 17 or March 18, 2016. See 457 Md. at 485
(indicating March 18 filing date).
10
sitting at which such decision may be made” was Costigin v. Bond, 65 Md. 122 (1886).
There, on March 31, 1885, a jury rendered a verdict in favor of the plaintiffs. Id. at 122-
23. Just two days later, on April 2, the defendant filed a motion for a new trial, which the
trial court denied. Id. at 123. The defendant then sought in banc review of that ruling. Id.
The plaintiffs moved to dismiss the in banc appeal, presumably for lack of jurisdiction, but
the in banc court denied the motion to dismiss. Id. The in banc court went on to reverse
the trial court’s decision and the plaintiffs appealed to the Court of Appeals. Id.
The Court of Appeals reversed the in banc court’s ruling, holding that the
defendant’s reservation of the issues identified in his motion for a new trial was untimely.
Id. at 124. The Phillips Court summarized the Costigin holding:
Section 22 required (and still requires) that the reservation of the point or
question be entered during “the sitting” at which the decision was made,
which the Court interpreted to mean before the court adjourned for the day.
As that was not done, the in banc court had no jurisdiction.
457 Md. at 498. The Costigin Court noted that “[t]he word ‘sitting’ is not synonymous
with ‘term’ of the court” and held that an “exception to a ruling must properly be taken as
soon as the ruling is made.” 65 Md. at 124. Notably, the Costigin opinion made no
reference to the contents of the defendant’s notice for in banc review—rather, by failing to
lodge an exception “as soon as the ruling [was] made,” the defendant failed to timely
reserve his issues for in banc review. Id. Thus, the Costigin Court deemed untimely the
defendant’s motion for new trial filed two days after the jury’s verdict. Id. (“As the motion
was not entered of record during the sitting at which the ruling was made, the [c]ourt in
banc had no jurisdiction of the appeal.”).
11
Nearly one hundred years later, the Court revisited the interpretation of Section 22’s
“reservation” of an issue “during the sitting” of the court in McNeece, 311 Md. 194. There,
because the in banc court had declared a portion of Rule 2-551 unconstitutional, the Court
of Appeals determined that it was “in the public interest to address the correctness of that
ruling.” Id. at 201. We rely on the Phillips Court’s assessment of the issue presented in
McNeece:
The point at issue was the practice in place in 1867, and for years thereafter,
that, to preserve a point for in banc review, an exception must be taken and
noted at the time the ruling was made. That requirement was in the 1868
statute and was carried over in Md. Rule 510 until 1984, when, with the
adoption of Rule 2-551, it was repealed.
Phillips, 457 Md. at 503-04. The McNeece Court acknowledged that “[t]he requirement of
noting a contemporaneous exception in order to preserve a question for later appellate
review was firmly ingrained in the common law.” 311 Md. at 202 (citing McCormick on
Evidence § 52 at 118-19 (E. Cleary 2d ed. 1972)). The Court also recognized the historical
reasons for the contemporaneous exception rule:
The purpose of a Bill of Exceptions was to bring before the appellate
court for review matters which otherwise would not appear on the common
law record due to the fact that there were no court reporters to record the
testimony and the proceedings at the trial. This was before the days of
shorthand and recording devices. After the Statute of Westminster II if a
litigant believed the court had erred in a ruling, he could make it a matter of
record by “saving his exception.” For example, if counsel had objected to a
question asked of a witness and the court had overruled the objection and
counsel thought the ruling was erroneous, he could say, “If the court please,
I desire to save an exception to your honor’s ruling.” The judge was then
obliged to stop the trial and call the scrivener who, with his quill pen, would
make a record on parchment. . . . When this document was completed, it
would be signed by the judge. During the course of the trial numerous
exceptions might be “saved.” At the conclusion of the trial they would be
bound together and certified by the trial judge as the Bill of Exceptions in the
12
case, and they would be attached to and become a part of the record on
appeal. Today, with modern methods of court reporting, this antiquated
method of preserving a record has become obsolete and court rules make
“exceptions” unnecessary.
Id. at 202-03 (alteration in original) (quoting Milton D. Green, Basic Civil Procedure, 254-
55 2d ed. 1979)). In light of that historical context, the Court recognized that it was “logical
and understandable” that Section 22 included a requirement for “saving” exceptions during
“the sitting” of the court. Id. at 203. However, the Court expressed its view that modern
stenographic procedures made obsolete the practice of “saving the exception” where the
trial judge stopped the proceedings to allow a scrivener to make a record of the objection.
Id. at 203-04.
Again, we rely on the Phillips Court’s concise summary of McNeece and the
appellate procedures adopted in its wake:
The [McNeece] Court recounted that, with the advent of court
stenographers and verbatim accounts of trial proceedings, the need for
contemporaneous written exceptions ceased to exist, and by the adoption in
1945 of Rule 17, the “unnecessary and outmoded” formality of noting
exceptions was abolished with respect to ordinary appeals. Id. at 204, 533
A.2d 671, quoting from Elmer v. State, 239 Md. 1, 6-9, 209 A.2d 776 (1965).
The modernization of appellate procedures accomplished by Rule 17 had no
effect on the procedure to be followed in appeals to in banc courts, however,
and “[b]ecause of the requirement that an exception be noted of record on the
day the point or question was decided, in banc appeals were essentially
unavailable in those cases in which a judge filed an order with the clerk and
notified the parties by mail.” McNeece, 311 Md. at 204-05, 533 A.2d 671.
Aware of the problem, the Court’s Rules Committee proposed, and the Court
approved, the deletion of the requirement of exceptions as part of new Rule
2-551.
Phillips, 457 Md. at 504 (emphasis added).
McNeece held that the Court of Appeals had the constitutional authority to adopt
13
Rule 2-551, reasoning that “[t]he procedures established by Rule 2-551 do not impair the
right to an in banc appeal and the rule is constitutional.” 311 Md. at 207. The Phillips
Court noted that, nearly twenty years after McNeece, a 2006 legislative amendment to
Section 22, approved by the electorate in November 2006, confirmed that “the procedure
for appeals to the circuit court in banc shall be as provided by the Maryland Rules.” MD.
CONST. art. IV, § 22; see also Phillips, 457 Md. at 506.
With that contextual background, we turn our attention to Father’s argument that
the in banc court here lacked jurisdiction. As stated above, Father relies on Phillips to
argue that Mother failed to timely reserve her issues for in banc review. Specifically,
Father claims that the following passage from Phillips confirms that a notice of appeal in
banc must contain the issues for review:
[The motion court’s] ruling was made and docketed on February 12, 2016.
The State filed a request for in banc review on February 18, 2016, but did not
identify any points or questions for review or state reasons why [the trial
judge] was wrong in his ruling until March 17, 2016, when it filed its
memorandum. Even if we were to give a more liberal interpretation to the
meaning of “sitting” than was given in Costigin [v. Bond] because the ruling
was not made in open court where a same-day objection is more feasible, and
look instead to whether the State properly objected to the ruling as required
by Rules 2-517 or 2-520, a month would not qualify as a timely objection
and thus not a timely reservation.
Id. at 511. In his brief, Father argues,
Mother first raised the points, questions for review or reasons why the Trial
Court was wrong in her In Banc Memorandum – filed three months after the
Contempt Order was entered, and over one month after the Notice for in banc
review was filed. Like the State’s notice for in banc review in State v.
Phillips, Mother’s bareboned notice for in banc review in this case was
insufficient to identify the points, questions for review and reasons why the
trial court was wrong.
14
Father’s argument is based on an inference he makes from Phillips. In his view, the
Phillips Court’s reference to the State’s failure to list points or questions for review in its
request for in banc review must be interpreted to mean that an in banc appellant is required
to so identify those points or questions in the written notice for in banc review. According
to Father, Mother’s failure to do so deprived the in banc court of jurisdiction.
We reject Father’s argument that an in banc appellant must identify the points or
questions for review in the notice for in banc review in order to timely reserve them for
appellate consideration. Such a rule would conflict with Rule 2-551(a), which states that
“[i]ssues are reserved for in banc review by making an objection in the manner set forth in
Rules 2-517 and 2-520.” In our view, requiring a party to object to an evidentiary or other
ruling as required by Rule 2-517, and then reiterate that same objection in the notice for in
banc review, is contrary to the purpose and intent of Rule 2-551(a).
Our holding is consistent with Phillips. The issue in Phillips concerned reservation
of an objection to an interlocutory ruling — the granting of Phillips’s motion in limine to
exclude the State’s evidence. The Court held that the State had not properly reserved the
evidentiary issue for in banc review because it had not complied with Rule 2-551’s
mandate that an objection be made “in the manner set forth in Rules 2-517 and 2-520.” Id.
at 511. Relevant to the ruling on the motion in limine in Phillips, Rule 2-517(c) provides
that, “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 Phillips Court merely held that the State’s in banc memorandum,
filed more than a month after the trial court’s ruling, did not qualify as a timely objection
15
to the admission or exclusion of evidence as required by Rule 2-517.4 Importantly, the
Court did not hold that a notice for in banc review must contain the points or questions for
review. Indeed, the Phillips opinion contains no discussion of what is required in a notice
for in banc review filed pursuant to Rule 2-551(a).
Our holding that Mother’s Notice for In Banc Review was sufficient to challenge
the trial court’s final judgment is consistent with the case law reviewed in Phillips. The
entire history of Section 22 and the case law interpreting it focused on the necessity of
making formal objections to evidence and other non-final rulings “during the sitting” of
the court, both before and after the “advent of court stenographers.” McNeece, 311 Md. at
204. None of the many appellate cases interpreting Section 22 addressed what is required
to reserve issues for in banc review of a final judgment. We note the Court of Appeals’s
observation in a footnote in Estep v. Estep that:
A reservation of points, being tantamount to registering an objection coupled
with a declaration that the objector, at the appropriate time, intends to seek
4
The authors of Maryland Rules Commentary express some skepticism with the
notion that the State failed to reserve its arguments for the in banc appeal when, over the
course of four days, the State presumably articulated its position concerning the motion in
limine:
Although the opinion of the Court of Appeals does not provide details about
the arguments made at the hearing on the motion, it would seem that the State
would have argued that the evidence should be admitted at trial and that the
defendant’s motion to exclude it should be denied, thereby making its
position known to the court and thereby preserving the issue for review. In
light of this opinion, the practitioner may wish to file objections with the trial
court shortly after the issuance of a ruling not made in open court or include
more detail in the notice for in banc review.
Paul V. Niemeyer, Linda M. Schuett, & Joyce E. Smithey, Maryland Rules Commentary
246 (4th ed. 2018 supp.).
16
review of the trial court’s ruling, simply saves the point or points in question
for determination by the court in banc when a final, appealable judgment has
been entered and does not act to bring the case to a halt until those issues are
decided by a court in banc, unless, of course, an earlier appeal is allowed on
some other recognized basis[.]
285 Md. 416, 423-24 n.8 (1979). The Estep Court’s view that a “reservation of points” is
the equivalent to preserving an objection for appellate review of a final judgment — a view
expressly acknowledged in Phillips — corroborates our conclusion that the Phillips Court
simply held that the State had not timely reserved its objection to the trial court’s
interlocutory ruling on the motion in limine, not that the in banc panel was divested of
jurisdiction by a deficient notice for in banc review.5
The express provisions of Rule 2-551 further bolster our conclusion. Rule 2-551
simply provides that “a party may have a judgment or determination of any point or
question reviewed by a court in banc by filing a notice for in banc review.” The Rule does
not require an in banc appellant to identify in her notice for in banc review the issues and
errors in the final judgment for which she seeks review. Because Rule 2-551(b) requires a
party to file her notice for in banc review within ten days after entry of judgment, it would
be cumbersome and illogical to require the appealing party to set forth all of her appellate
arguments in her notice for review.
Instead, all appellate issues can be addressed in the in banc appellant’s
memorandum to be filed within 30 days of filing the notice as required by Rule 2-551(c).
This approach is consistent with the Phillips Court’s observation that the procedures for an
5
The present case was a court trial. To preserve errors in jury instructions in a jury
case, the in banc appellant must preserve those issues in accordance with Rule 2-520.
17
appeal in banc are meant to essentially imitate those for an appeal to a Maryland appellate
court. In Phillips, the Court explained that the Rules Committee proposed “that the
procedures governing appeals to the Court of Special Appeals apply as well to seeking
review by an in banc court.” 457 Md. at 507. Although the Court of Appeals rejected this
proposal, it “approved its essence” in adopting Rule 2-551. Id. at 508. In fact, in the two
alternative rulings in Phillips, the Court of Appeals noted “the true comparability and
compatibility of in banc review with an appeal to the Court of Special Appeals and [the
Court of Appeals]”: “The appeal in both situations is from the judgment, which brings
before the appellate court all issues that were properly preserved for appellate review,
including those determined by interlocutory orders.” Id. at 512 (citing B & K Rentals v.
Universal Leaf, 319 Md. 127, 132-33 (1990)). This language vindicates our conclusion
that the notice for in banc review of a final judgment does not require anything more than
what would be required in a notice of appeal to our Court. By simply noting an appeal
from a final judgment, an appellant—either in banc or before our Court—may raise all
issues properly preserved for appellate review. A notice of appeal does not need to specify
the orders appealed from and operates as an appeal of any order that is appealable at that
time. Edery v. Edery, 213 Md. App. 369, 377 n.7 (2013) (citing Hudson v. Hous. Auth. of
Balt. City, 402 Md. 18, 27 (2007)).
In conclusion, it would make little sense to impose more requirements to perfect an
appeal in “the poor person’s appeal” than those that exist in appeals to our Court or the
Court of Appeals. Unlike in Phillips, Mother sought review of a final judgment. Her
Notice for In Banc Review was sufficient to challenge any and all legal errors in that
18
judgment as well as any properly preserved objections as required by Rule 2-517 (and Rule
2-520 in jury cases). Because a one-line “Notice of Appeal” is sufficient to secure review
of a final judgment by the Court of Special Appeals, Mother’s “Notice for In Banc Review”
is likewise sufficient under the Rules to secure review by an in banc panel. We therefore
conclude that, because Mother’s Notice for In Banc Review complied with the
constitutional and procedural requirements of Section 22 and Rule 2-551, the in banc court
had jurisdiction.
II. The In Banc Court Did Not Err In Vacating The Trial Court’s Award Of
Attorney’s Fees
Father’s only substantive challenge to the in banc panel’s decision concerns the
issue of attorney’s fees. As stated above, both parties filed contempt petitions, and
following a two-day hearing, the court denied Mother’s petition, granted Father’s petition,
and then awarded Father $35,000 in attorney’s fees. Mother appealed the court’s contempt
order to the in banc panel.
In reversing the trial court’s contempt order and vacating its award of $35,000 in
attorney’s fees against Mother, the in banc panel concluded that: 1) the trial court
erroneously “blurred” the line between issuing a civil contempt sanction and modifying
custody; and 2) the record lacked sufficient evidence concerning the parties’ financial
statuses to justify the fee award. Notably, Father does not challenge the in banc court’s
determination that the contempt order improperly modified custody.6
6
Father likewise does not contend that the in banc court was incorrect in its
determination that the contempt order lacked a purge provision as required by Rule 15-
207(d)(2).
19
In his brief, Father asserts that the in banc panel erred because it failed to recognize
that the trial court granted attorney’s fees pursuant to FL § 12-103(c) rather than FL § 12-
103(b).7 FL § 12-103, which governs the award of attorney’s fees, provides, in relevant
part:
(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.
Father argues that the trial court found that Mother had no substantial justification
in opposing his contempt petition or prosecuting her contempt petition. Citing Davis v.
Petito, 425 Md. 191, 201 (2012), Father claims that the in banc court erred because FL §
12-103(c) does not require the trial court to consider the financial statuses or the needs of
the parties before awarding attorney’s fees.
We affirm the in banc court’s decision for several reasons. First, we are not
convinced that the trial court intended to award attorney’s fees pursuant to FL § 12-103(c).
Nowhere in the court’s bench opinion did it refer to FL § 12-103(c), nor did it explicitly
find that Mother lacked substantial justification in defending against Father’s contempt
7
This statute remains unchanged despite the recent release of the 2019 replacement
volume.
20
action. More significantly, before making its attorney’s fee award, the trial court stated
that “[t]he [c]ourt has considered the financial situation of both sides.” Although FL § 12-
103(b) requires the court to consider the “financial status” and “needs” of the parties, FL §
12-103(c) mandates “an award of attorneys’ fees and costs . . . so long as those fees and
costs are reasonable.” Davis, 425 Md. at 201. Thus, the financial circumstances of the
parties are not part of the calculus for an award under FL § 12-103(c). Id. at 206 (holding
that if court finds lack of substantial justification for maintaining claim and absence of
good cause to the contrary, reasonableness of attorney’s fees is the only consideration). In
short, if the court truly intended to award Father attorney’s fees pursuant to FL § 12-103(c),
it would not have stated that it “considered the financial situation of both sides.”8
Second, the inherent errors within the contempt order require us to vacate the award.
Father does not dispute the in banc court’s determination that the trial court improperly
“blurred” the lines between contempt and modification of custody. We note that Father
never renounced or objected to the court’s sanctions, which improperly modified the legal
custody provisions contained in the extant consent order. Indeed, Father specifically
requested the court to impose improper sanctions. In his petition for contempt, Father
requested that the court prohibit mother from moving the minor children from Montgomery
County without Father’s consent. During closing argument on the contempt, Father told
the trial court:
8
Additionally, we note that, despite finding Father’s attorney’s fees to be
reasonable, the court only awarded $35,000 of the claimed $44,702 in fees. Had the court
intended to utilize FL § 12-103(c), presumably it would have awarded Father all of his
attorney’s fees. See Davis, 425 Md. at 201, 206.
21
Find her in contempt. Number one. Number two, suspend, don’t change the
party’s [sic] agreement. But order that she not exercise her tie-breaking
authority until either a year from June 30, 2018, that is to say June 30, 2019,
or further order of Court. Suspend the tie-breaking authority.
It would be unusual — and in our view inequitable — to sustain Father’s attorney’s fee
award under FL § 12-103(c) where there was no justification for the relief Father requested
and received in the proceeding, resulting in a reversal of the underlying judgment. Because
we have no difficulty concluding that Mother was justified in opposing Father’s requests
for relief, Father would not be entitled to an award of all of his attorney’s fees under FL §
12-103(c).
Finally, in what appears to be an argument in the alternative, Father disputes the in
banc panel’s conclusion that there was insufficient evidence in the record concerning the
parties’ financial circumstances to support the award pursuant to FL § 12-103(b). Our
thorough review of the record confirms the in banc panel’s conclusion that there was
inadequate financial information upon which to have based a FL § 12-103(b) award.9 We
therefore affirm the in banc court’s vacation of the attorney’s fees award. On remand, in
the event the court intends to award fees pursuant to FL § 12-103(b), the court should
conduct an evidentiary hearing to allow the parties to present evidence concerning “the
financial status of each party” and “the needs of each party[.]” FL § 12-103(b).10
9
We also note that the trial court never acknowledged the “needs of the parties” as
required by FL § 12-103(b)(2), yet another basis for affirming the in banc panel’s decision.
10
Although not articulated by the parties in their briefs, at oral argument Mother
acknowledged that the court on remand could conceivably award Father attorney’s fees
pursuant to FL § 12-103(c) to the extent that the court is able to ascertain fees related only
to Father’s defense of Mother’s contempt petition.
22
JUDGMENT OF THE IN BANC COURT
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.
23