Henriquez v. Henriquez

971 A.2d 345

185 Md. App. 465

Jose HENRIQUEZ v. Ana S. HENRIQUEZ.

No. 1774, September Term, 2007.

Court of Special Appeals of Maryland.

May 8, 2009.

Reconsideration Denied June 10, 2009.

Luiz R.S. Simmons (Auerback & Simmons on the brief), Silver Spring, for appellant.

Deena Hausner and Ashley R. Sikora of Baltimore, for appellee.

Panel: HOLLANDER, WOODWARD, GRAEFF, JJ.

GRAEFF, J.

This appeal arises from an award of attorney's fees granted in the custody phase of a divorce and custody case between Jose Henriquez, appellant, and Ana S. Henriquez, appellee. Following a two-day hearing on the issues of custody, visitation, and child support, the Circuit Court for Montgomery County ordered, among other things, that Mr. Henriquez pay $5,000 in attorney's fees to the House of Ruth Domestic Violence Legal Clinic (the "House of Ruth"), a non-profit organization that provided Ms. Henriquez with free legal representation at trial. On appeal, Mr. Henriquez presents several issues for our review, which we have consolidated and reworded as follows:

1. Is a court authorized to award attorney's fees in a case where a party is represented by a non-profit legal services organization that does not charge the litigant a fee for its representation?

2. Did the circuit court properly exercise its discretion in awarding attorney's fees to the House of Ruth when the bill for attorney's fees was not provided in discovery prior to the custody proceeding?¹

For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

The parties were married in El Salvador on April 18, 1998, and they had two children during the marriage: Ana, born in 1998; and Jessica, born in 2000. Ms. Henriquez had one child prior to the marriage: Gloria, born in 1994. On December 27, 2005, Ms. Henriquez filed in the Circuit Court for Montgomery County a Complaint for Absolute Divorce, which included a request for the legal and physical custody of the children and "reasonable counsel fees and costs" of the proceedings. The circuit court bifurcated the trial to consider the issues of custody, visitation, and child support separate and apart from the grounds for divorce and property disposition issues.

On January 8 and 9, 2007, the court held proceedings on the custody and child support portion of the trial. At the conclusion of the first day of trial, Ms. Henriquez's attorney introduced into evidence an itemized bill for "Attorney's Fees for Custody, Visitation and Support Issues Only." The bill documented counsel's work on the case for 58.34 hours, at $200 per hour, for a total of $11,668. The bill covered the time period from May 19, 2006, to January 7, 2007.²

Mr. Henriquez objected to the introduction of the bill for attorney's fees. He argued as follows:

The objection is twofold so it's clear. Not only do we object to the introduction of the itemization, we object, Mr. Herrera [sic] objects to the request for counsel fees based upon the following history.

In this case, Your Honor, interrogatories, a request for production of documents, and a deposition was [sic] taken. Interrogatory No. 27, which I've made a copy of which I won't bother the Court now, but I'd like to mark and make it part of the record says, if you intend to produce or use any oral or written statements, photographs, video or sound recordings, and/or written documents in any trial or hearing of the case, please provide the following information. And then it goes on to ask for the information. In this particular case, the answer which I'll, [sic] provides no evidence or indication that there will be a statement of counsel fees. And again, the word is written documents. It's just not responsive, in fact, there's no response of course. And then there is the question of the request for production of documents, Request No. 40, a copy of which I have says, any and all documentary evidence which you or anyone on your behalf intends to introduce at the hearing of the matter. And the response is a copy of the photograph and marriage certificate produced. Again, I asked for documentary evidence.

Now we have asked for written documents and we have asked for documentary evidence and neither the exhibit which was marked is that or it's incorporeal evidence which we don't believe really exists. So we think that it should have been submitted.

Counsel for Mr. Henriquez then read excerpts from Ms. Henriquez's deposition, where counsel asked Ms. Henriquez whether she: 1) had "written any checks or paid any money to your lawyers for their legal services to you"; or 2) had "paid them any money to reimburse them from [sic] any costs that they have incurred in representing you in this case." Ms. Henriquez answered these questions in the negative.

Counsel for Mr. Henriquez further read to the court excerpts from the deposition where Ms. Henriquez's counsel responded to his questions regarding whether there was a fee agreement. Ms. Henriquez's counsel stated: "We don't charge money for our hourly legal services." She explained that, at the end of the case, Ms. Henriquez would not owe the House of Ruth any money, with the possible exception of reimbursement for expenses.³

Based on these discovery responses, Mr. Henriquez argued that "they ought to be stopped [sic] from asking for attorneys [sic] fees since we might have conducted things a little bit differently with regard to asking questions for example of the expert. How do you get from that to an $11,000 bill? So we object to it."

The court asked counsel for Ms. Henriquez if she wished to respond, and the following occurred:

[COUNSEL FOR MS. HENRIQUEZ]: Yes, just briefly Your Honor. In terms of the interrogatories and the request for production of documents. As [counsel for Mr. Henriquez] stated, there was no specific request for any bill regarding the attorney's fees. And at the—

[THE COURT]: I understand.

[COUNSEL FOR MS. HENRIQUEZ]: At the time we produced documents there wouldn't have been much of a bill to produce anyway. And we did prepare the bill in anticipation—

[THE COURT]: Well, you have to update interrogatories as you go along so as to advise the other side.

[COUNSEL FOR MS. HENRIQUEZ]: Yes, Your Honor.

[THE COURT]: Did you tell [counsel for Mr. Henriquez] at any time that, prior to yesterday[,] that you were going to be charging attorney's fees?

[COUNSEL FOR MS. HENRIQUEZ]: In the complaint for absolute divorce it's very clearly stated that we are seeking —

[THE COURT]: No, after the complaint.

[COUNSEL FOR MS. HENRIQUEZ]: —attorney's fees.

[THE COURT]: That's why he was asking you the questions, because it was contained in the complaint.

[COUNSEL FOR MS. HENRIQUEZ]: Well, the deposition that was taken and that [counsel for Mr. Henriquez] referred to in this case was actually taken in connection with the second portion of this case, which is the divorce and property disposition portion of the case. And it was taken at a time that was after the period of discovery closed with respect to the custody merits portion of the trial, and it was actually taken after we were originally scheduled to be heard in the custody merits portion of the trial. So any questions that were asked in that deposition were to the issues as they relate to divorce of the parties and property disposition.

[THE COURT]: Okay. Let's go back to my original question.

[COUNSEL FOR MS. HENRIQUEZ]: So, no, we had not stated to [counsel for Mr. Henriquez] anything about asking for attorney's fees in the custody portion of the proceedings.

[THE COURT]: All right. And do you have a fee agreement?

[COUNSEL FOR MS. HENRIQUEZ]: No, we do not. As the Court—

[THE COURT]: Are you charging [Ms. Henriquez] an hourly rate for your services?

[COUNSEL FOR MS. HENRIQUEZ]: No. The House of Ruth is a not-for-profit organization. I am sure the Court is familiar, but—

[THE COURT]: Well, I don't know who employs you. I do not have any information about that one way or the other.

[COUNSEL FOR MS. HENRIQUEZ]: Okay. But there is case law that states that even nonprofit organizations who do not receive fees directly from their individual clients, are still entitled to collect attorney's fees in civil matters.

[THE COURT]: Okay. All right. [Counsel for Mr. Henriquez], you are on the record.

[COUNSEL FOR MR. HENRIQUEZ]: Thank you.

Mr. Henriquez testified that he paid his attorney a $5,000 fee to represent him at trial. In closing argument, both attorneys discussed the issue of an award of attorney's fees. Ms. Henriquez argued as follows:

Finally and just briefly, we have submitted a bill for attorneys' fees and would ask the Court to order the payment of fees by Mr. Henriquez. And the case of Blum v. Stenson, which is a United States Supreme Court case, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891, permits the ordering of attorneys' fees even when a party is represented by a non-profit public interest law firm. Thank you.

Mr. Henriquez responded as follows:

I would say that I think there is something fundamentally wrong when you get no answers to the discovery on a particular issue and then, as I read to the Court, you explicitly ask it over and over again and you get the response "We don't charge." It wasn't we don't charge for this, but we charge, [sic] "We don't charge." We believe that they ought to be estopped from asking for counsel fees in view of what their representation was and that's a matter of record. Thank you very much.

After hearing argument from both parties, the court awarded attorney's fees to Ms. Henriquez. The court explained its decision as follows:

The Court also believes that there should be some award of fees for representation given that essentially Mrs. Henriquez is wholly dependent and went to a community services organization for her representation. She's virtually penniless as far as I can tell. Mr. Henriquez makes what he makes.[⁴] Any payment to counsel obviously goes out of the...