Henriquez vs. Henriquez - Affirmed!

Jose Henriquez v. Ana Henriquez, No. 81, September Term 2009

Court of Special Appeals Decision and Court of Appeals Decision Attached.

FAMILY LAW – SECTION 12-301 – COUNSEL FEES – NON-PROFIT LEGAL SERVICES ORGANIZATION

 Ana and Jose Henriquez were married in El Salvador on April 18, 1998 and had two children during the marriage, Ana, born in 1998, and Jessica, born in 2000; Mrs. Henriquez had another child born in 1994. In 2005, Mrs. Henriquez filed a Complaint for Absolute Divorce in the Circuit Court for Montgomery County, requesting “sole legal and physical custody” of the children, “temporary and permanent child support,” as well as “reasonable counsel fees and costs.” During the custody, visitation, and child support phase of the proceedings, counsel for Mrs. Henriquez introduced an itemized bill entitled “Attorney’s Fees for Custody, Visitation, and Support Issues Only,” documenting legal work on her behalf undertaken by the House of Ruth Domestic Violence Legal Clinic, a non-profit legal services organization, amounting to 58.34 hours, at $200 per hour, for a total of $11,668. Counsel for Mr. Henriquez objected to the introduction of the bill for attorneys’ fees, because the House of Ruth agreed to represent Mrs. Henriquez on a pro bono basis. The trial judge awarded Mrs. Henriquez sole physical custody of the children and ordered Mr. Henriquez to pay child support and also awarded attorneys’ fees in the amount of $5,000 to the House of Ruth for legal work on Mrs. Henriquez’s behalf regarding custody, visitation, and support issues, pursuant to Section 12-103 of the Family Law Article, Maryland Code (1984, 2006 Repl. Vol.), governing fee shifting in child custody matters. The Court of Special Appeals affirmed.

The Court of Appeals affirmed, rejecting Mr. Henriquez’s argument that the award of attorneys’ fees was improper as a matter of law, because Section 12-103 authorizes an award of attorneys’ fees only when a party actually incurs expenses for legal representation. The Court reasoned that the plain meaning of Section 12-103 permitted the award of attorneys’ fees, because “counsel fees” are limited only to that which “are just and proper under all the circumstances.” The Court further noted that the only other statutory mandate that restricts a court’s award of attorneys’ fees is contained in Section 12-103(b), which enumerates considerations a court must weigh before awarding fees, to include (1) the financial status of each party, (2) the needs of each party, and (3) whether there was substantial justification for bringing or defending the proceeding. Finally, the Court determined that the Circuit Court properly awarded attorneys’ fees directly to the House of Ruth, construing Section 12-103 in pari materia with Sections 7-107, 8-214, and 11-110 of the Family Law Article, governing fee shifting in divorce proceedings, property disposition matters, and alimony proceedings, respectively, and all permitting an award of fees directly to an attorney. To do otherwise, noted the Court, would foster the illogical result of permitting an award of fees directly to an attorney when a party prevails in a divorce proceeding on fault grounds, or when a party obtains a monetary award and could then pay the attorney, or when a party receives alimony, but not permitting an award of fees directly to an attorney in a determination of physical custody of children, in which each party “has equal constitutional rights to parent” and at stake is the “best interests” of the children. 

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Henriquez v Henriquez.pdf56.78 KB
Henriquez - Attorney Fees - Nonprofit - CA.pdf58.44 KB

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