Other Support Issues

• Jurisdiction: Maryland

IV. OTHER SUPPORT ISSUES

A. Criminal Action for Support of Spouse

Family Law § 10-201(a) makes it a crime for a person to "willfully neglect to provide for the support of the other spouse, without just cause." The object of the provisions relating to non-support is to provide for unsupported spouses, to punish this offense against them, and to prevent the commission of such offenses based on the fear of punishment.³⁶⁷ It is not a defense to a criminal non-support action that the complaining spouse has income or assets or that the defendant, if able, is not working. The existence of an agreement between the parties, or a prior civil decree if not being complied with, also is no defense.³⁶⁸

As a general rule, State's Attorneys are reluctant to institute criminal actions if the complaining spouse has sufficient income or assets, there is a written agreement, or there is a past or pending civil action.³⁶⁹ In Ewell, the Supreme Court of Maryland noted that the complainant has the right to go to the grand jury alone and the defendant has a right to a jury trial.³⁷⁰ Every element of the criminal offense of nonsupport must be proved beyond a reasonable doubt.³⁷¹ The statute does permit the court to place a defendant on probation conditioned upon paying weekly support.

B. Agency by Necessity

The doctrine of necessaries is no longer a part of the common law of this state.³⁷² Absent a contract or agency, express or implied, a third party who has furnished a wife with necessaries can no longer recover from the husband. The husband's statutory right to protect himself from his wife's abuse of a right to pledge husband's credit for necessaries pursuant to Fam. Law § 4-302 is no longer an issue based on the repeal of the section.

The Condore holding and the repeal of Fam. Law § 4-302 do not preclude the possibility that one spouse may be liable for goods or services provided to the other where the other spouse was an agent or because the spouse is estopped to deny agency due to the other spouse's apparent authority.³⁷³ See discussion in McFerren and discussion by Judge Rodowsky in the dissenting opinion in Condore.³⁷⁴ The delivery of a credit card from one spouse to the other may establish a real or apparent agency with authority to pledge the other spouse's credit.

C. Attorneys' Fees and Suit Money

Legal services concerning marital disputes and rendered to a spouse during marriage were a necessary for which the other spouse could be liable.³⁷⁵ This was so regardless of fault, and regardless of who instituted the suit or its ultimate outcome.³⁷⁶ An action to recover attorneys' fees and suit money had to be brought by the wife's attorney in a court of law unless there was an existing equity action pending.³⁷⁷ The law action was premised on a strict necessity theory, based in turn upon the wife's freedom from fault. At law, the obligee's fault destroyed his or her "authority" to pledge credit, and there was no liability for legal fees.³⁷⁸ The vitality of an action for fees other than under the current statutory provisions, which apply without regard to gender, is doubtful.

Former Md. Ann. Code, Art. 16, § 5(a) provided that, unlike other claims for necessaries, there was no liability for legal fees unless the obligee spouse's "income is insufficient to care for his or her needs." The 1980 Alimony Act now provides that legal fees may be awarded in proceedings "under this title." Presumably, the "title" referred to is "Title 11, Alimony." Under Fam. Law § 11-110, the trial judge must consider the relative financial needs and resources of both parties and not merely the fact that the requesting spouse's financial resources may be inadequate.³⁷⁹ That a spouse receives an equal division of marital property is not in and of itself a ground to deny attorneys' fees.³⁸⁰ The Act now requires the trial judge to consider whether there was substantial justification for prosecuting or defending the proceeding.³⁸¹ "An award of indefinite alimony illustrated the need of defending [the economically dependent spouse's] interest in the case."³⁸² Gravenstine v. Gravenstine³⁸³ notes that counsel fees might be increased where a party had needlessly and unconscionably protracted discovery. For the interplay between Fam. Law § 12-103 (counsel fees for child support enforcement), Fam. Law § 11-110(c), and Md. Rule 1-341, see Miller³⁸⁴ and Broseus.³⁸⁵ In Rosenberg,³⁸⁶ a large fee was upheld though largely expended in the evaluation of non-marital property. Again, as with alimony awards, the trial judge is vested with great discretion. In Scott,³⁸⁷ the trial judge failed to rule on attorneys' fees and costs. The Appellate Court of Maryland remanded, directing the lower court to "articulate the basis for its decision."

Maryland appellate courts have carefully scrutinized counsel fee awards and have substantially reduced them. Counsel fees may be awarded upon a review of the file and observation of counsel's conduct at trial even where there is no specific evidence to support the claim for counsel fees.³⁸⁸ Counsel should always submit a detailed itemization of the time spent.³⁸⁹ That is not necessarily fatal, however. A detailed list of expenses is not necessary, "as a chancellor may" be able to appraise the value of an attorney's services based on his or her experience.³⁹⁰ The trial judge, however, will often award only a partial contribution to that fee by the economically independent spouse.³⁹¹ The Appellate Court of Maryland held in Collins³⁹² that "[in] light of the amount of the fees awarded . . . that some express discussion regarding the reasonableness of the fees in light of such factors as labor, skill, time and benefit received" was necessary. Fees may be awarded pendente lite.³⁹³

Fees may be awarded in post-divorce alimony enforcement or modification proceedings.³⁹⁴ The trial court has jurisdiction to award attorney fees incurred in connection with appellate proceedings. A spouse's liability to pay or contribute towards counsel fees for services rendered involving alimony for an economically dependent spouse is no longer terminated by an absolute divorce. This changed prior law.³⁹⁵ In the absence of special circumstances, a fee for only one attorney is ordinarily allowed.³⁹⁶ A complicated case involving substantial discovery disputes may be an unusual circumstance.

Suit money may be awarded as well as counsel fees, covering the costs of such things as depositions, court costs, investigative expenses, detective fees, travel expenses, and expert witness fees (accountants, economists, vocational rehabilitation experts, placement personnel) so long as such expenses are "reasonable" and "necessary."³⁹⁷ Without comment, the court treated sums due a vocational rehabilitation counselor as suit money.³⁹⁸

The court may award reimbursement for fees and expenses already paid.³⁹⁹ Formerly, under Rubin,⁴⁰⁰ the Supreme Court of Maryland had denied reimbursement to the wife for litigation expenses already paid by her. The decision in Sody v. Sody⁴⁰¹ (dealing with family expenditures incurred) added further confusion. The issue was finally laid to rest by the statutory revision of Fam. Law § 11-110(e). Citing this section, Rogers held:

The fact that appellant borrowed the money to pay those fees and is no longer legally bound to repay those loans does not preclude the court from ordering reimbursement. . . .⁴⁰²

The court may award counsel fees directly to the lawyer and enter judgment in favor of the lawyer.⁴⁰³ Contempt will not lie for non-payment of that judgment.⁴⁰⁴

Remand regarding monetary award will cause a remand regarding award of counsel fees so that fees can be reconsidered in light of any substantial revision in the monetary award.⁴⁰⁵

Counsel fees are not available under Fam. Law § 11-110 where a proceeding is merely to enforce the provisions of the parties' separation...