Civil Law Update

Review of the November 2014 Amicus Curiarum reveals the following decisions of interest in the civil law area:

COURT OF APPEALS:

Attorney Grievance Commission of Maryland v. Christine Boco Gage-Cohen,
Misc. Docket AG No. 25, September Term 2013, filed October 21, 2014. Opinion
by McDonald, J.

WCS_GrowthAd_Advocate_Version2Attorney agreed to represent a client on a divorce matter and accepted a $2,500 retainer from the client. Subsequently, Attorney neither deposited client’s check in her trust account nor took any action to represent the client as agreed. Despite numerous requests from the client, Attorney failed to return either client’s documents or her retainer. Client filed a complaint with the Attorney Grievance Commission who thereafter sent Attorney four letters to which she did not respond. After 2012, Attorney no longer maintained a trust account. A complaint was filed by the AGC which was served on Attorney in Tennessee, where she had relocated without any notice to anyone, including her clients and the AGC. In March 2014, the hearing judge found Ms. Gage-Cohen violated Maryland Lawyers’ Rules of Professional Conduct (MLRPC) 1.1, 1.2(a), 1.3, 1.4, 1.5(a), 1.15(a) & (c), 1.16 (a) & (d), 8.1(b) and 8.4(a), (c), & (d); Maryland Rules 16-604, 16-606.1, 16-609(a); and Maryland Code, Business Occupations and Professions Article, §10-306.

The Court of Appeals affirmed and held that disbarment is an appropriate sanction. The Court held that Ms. Gage-Cohen’s total abandonment of her client, misappropriation of client funds, and failure to cooperate with the Commission warranted the severest sanction of disbarment.

Attorney Grievance Commission of Maryland v. Michael Francis Barnett, Misc. Docket AG No. 28, September Term 2013, filed October 22, 2014. Opinion by Watts, J.

Client, acted as self represented, arrived late to a custody hearing before a master. She was handed a written Master’s Report which recommended that custody of the Client’s minor child be granted to the child’s father. She was told of the rule requiring that exceptions be filed within ten days. She then retained Attorney to file exceptions on her behalf. Attorney accepted her case and accepted her $2,500 retainer. Thereafter, he filed exceptions to the Master’s Report as well as an Affidavit of Indigency on which he had forged Client’s name. He then failed to notify Client of the date of the hearing on the Exceptions. Client failed to appear at the exceptions hearing and Attorney, without her knowledge or consent, withdrew the exceptions. In addition, he made several misrepresentations regarding his contact with the Client after 2011. Based on the above facts, the hearing judge concluded that Barnett had violated MLRPC 1.1, 1.2(a), 1.3, 1.4, 3.3(a), 8.4(b), 8.4(c), 8.4(d), and 8.4(a). The hearing judge did not determine whether Barnett had violated MLRPC 8.1(a). The hearing judge found no mitigating circumstances.

The Court of Appeals affirmed and held that the appropriate sanction was disbarment. The Court noted two aggravating factors in this case: (1) multiple violations of the MLRPC; and (2) refusal to acknowledge the wrongful nature of the misconduct. The Court concluded that given Barnett’s intentionally dishonest conduct, his numerous other violations of the MLRPC, and his failure to demonstrate any compelling or extenuating circumstances warranted the sanction of disbarment.

THE COURT OF SPECIAL APPEALS:
Lauren McClanahan v. Wash. County Dep’t of Social Services, No. 737, September Term 2013, filed July 31, 2014. Opinion by Woodward, J. After Mother and Father divorced in 2007, Mother had the primary custody of their minor child with liberal visitation to Father. Between June 2008 and November 2010, Mother took the minor child to the hospital nine times for examinations related to alleged sexual abuse by the Father. No evidence of sexual abuse was found. In addition, Mother made 14 reports of child sexual abuse by the Father to DSS. Investigations ruled out any child sexual abuse each time. In 2010, DSS began an investigation of Mother based on suspected child abuse through mental injury by Mother resulting from the repeated false statements of sexual child abuse and multiple trips to the hospital and DSS regarding these allegations. As required by statute, Raven was evaluated by two licensed social workers. Raven was diagnosed with a mental injury, namely an Axis I Adjustment Disorder with Mixed Anxiety and Depressed Mood. The disorder related to an unhealthy attachment to Mother and resulted in impairment of Raven’s emotional, social, and intellectual functioning. The cause of Raven’s mental injury was identified as Mother’s exploitation of Raven by making repeated sexual abuse allegations against Father.
The Department determined that Mother was responsible for indicated child abuse by mental injury. That determination was upheld by the administrative law judge (“ALJ”) and thereafter by the Circuit Court.
The Court of Special Appeals affirmed. Mother sought to disqualify the evaluations claiming that they were invalid and (1) identified unconscious acts by appellant as the cause of Raven’s mental injury, (2) identified acts by Mother that were unacceptably vague, and (3) speculated as to the causal relationship between Mother’s behavior and Raven’s mental injury.
The Court of Special Appeals disagreed. The Court determined that it was not whether Mother’s acts were conscious or unconscious, but whether they were the cause of the child’s mental injury. One of the evaluating social workers explained the mechanism that caused Raven’s mental injury as “exaggerated positive feedback,” where the child senses the parent’s need to hear certain things, and when those things are said, the parent responds with animated closeness and protectiveness, which reinforces the child’s behavior. The social workers pointed to Mother’s making allegations of sexual abuse and taking Raven to exams, actions that they placed in the context of the positive feedback loop as a trigger for Raven to assert an unhealthy protectiveness of Mother. The ALJ accepted the “exaggerated positive feedback” loop as the cause of Raven’s mental injury, and the Court of Special Appeals concluded that such finding was supported by substantial evidence. The Court cited COMAR 07.02.07.12, which defines “ruled out” child abuse in its decision. In that regulation, scienter is specifically required for physical child abuse, but not for child abuse by mental injury. In that regulation, scienter is specifically required for physical child abuse, but not for child abuse by mental injury. The legislative history of the mental injury statute also did not indicate an intention to include a scienter requirement.

John Leineweber v. Michele Leineweber, No. 1011, September Term 2013, filed
October 29, 2014. Opinion by Wright, J.
The parties were divorced in April 2005, at which time Mother was awarded primary physical custody of the minor children and Father “agreeing to pay” a set sum of monthly child support. Mother filed for a modification of custody and child support which was granted in January 2012. In October 2012, Father filed an action to modify child support. His primary argument is that any deferrals of income he received should not be included in his income until they are received. The trial court denied his motion to modify child support and Father appealed.
The Court of Special Appeals affirmed, holding that deferrals of income are included in income in the year that they are earned and not in the year that they are received. Otherwise, it is reasoned, payors might be inclined to defer as much income as possible to avoid and/or lower their child support payments.

Beryl Fitzzaland a/k/a Beryl Zahn v. Jeffrey Zahn, No. 748, September Term 2013,
filed August 1, 2014. Opinion by Woodward, J.
After the divorce, Father was awarded primary physical custody of the parties’ two children. No child support was requested or included in the judgment of divorce. A few years later, the party’s older son, Douglas, was diagnosed with autism, anxiety, oppositional defiant disorder, and attention deficit/hyperactivity disorder. A few months after this child turned 18, Father filed a motion to have the child determined to be an adult disabled child and requested that the Court order Mother to pay child support. At the conclusion of a four day trial, the court found Douglas
to be a destitute adult child and ordered Mother to pay child support to Father and to pay a
portion of Father’s attorney’s fees. Mother appealed arguing that (1) the court failed to consider Douglas’s total expenses, (2) there was no causal link between Douglas’s mental infirmity and the lack of capacity to be self-supporting, and (3) Douglas could become self supporting.
The Court of Appeals affirmed the trial court’s findings. The Court began by citing to the definition of a destitute adult child in Section 13-101(b) of the Family Law Article (“F.L.”) as “an adult child who: (1) has no means of subsistence; and (2) cannot be self-supporting, due to mental or physical infirmity.” The Court noted that the phrase “no means of subsistence” encompasses adult children with no financial resources or earning capacity, as well as those with financial resources, but whose reasonable living expenses exceed their financial resources. The Court determined that Douglas fell in the first category, because he was not employed and had no other means of support. Next, the Court found that the record in the instant case demonstrated that Douglas’ disabilities pervaded his day-to-day life and were the cause of his inability to be self-supporting. The Court pointed to Father’s vocational rehabilitation expert, who testified that Douglas’ disability was “most severe,” in that it affected his social behavior, communication, and life skills, and that as a result Douglas could not live independently or be self-supporting. The Court also rejected Mother’s argument that Douglas could become self-supporting in the future and therefore could not be deemed a destitute adult child. The Court held that the trial court did not err in considering Douglas’ current abilities only in making the determination that he was a destitute adult child. The Court of Special Appeals also upheld the trial court’s award of child support to Father. The Court reaffirmed its prior opinions in Stern v. Stern, 58 Md. App. 280 (1984) and Goshorn v.Goshorn, 154 Md. App. 194 (2003) that, once a child has been determined to be a destitute adult child, the court’s next step is to apply the child support guidelines in F.L. §12-204 to ascertain the support obligation a parent owes to that child. Because the trial court correctly applied the child support guidelines to Mother and Father, there was no error in the resulting child support award to Father.

Finally, the Court of Special Appeals affirmed the award to Father of a portion of his attorney’s fees. The attorney’s fee award was based on Mother’s filing of a custody petition in the middle of the trial, in which she sought a change in custody of Thomas, who was then a minor. The trial court determined that the custody petition was unjustified and extended the trial two days longer than otherwise would have been necessary. The court awarded Father $7,500 in attorney’s fees to cover those two unnecessary days of trial. The Court cited to Lieberman v. Lieberman, 81 Md. App. 575 (1990) for the four factors that a trial court should consider in determining the appropriate amount of an attorney’s fee award. The Court determined that the $7,500 award, out of a total of $33,642.12 in attorney’s fees incurred by Father, was adequately supported by the testimony and exhibits, was reasonably necessary because of the unjustified custody petition, was reasonable for the work done, and could reasonably be afforded by Mother. Accordingly, the Court found no error or abuse of discretion in the award of attorney’s fees to Father.