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Denise Taylor v. Marc Mandel, No. 3, September Term, 2007. GUARDIAN AD LITEM - FEES Denise Taylor, Petitioner, who had filed a complaint seeking custody or visitation with her grandchildren, requested the appointment of a guardian ad litem; the court appointed Marc E. Mandel, Esquire, Respondent, as guardian ad litem. Subsequently, Mandel submitted an amended order that was signed by the court, in which the court reserved for future determination the award of guardian ad litem fees and ordered each party to advance to counsel $1,000.00 to be held in escrow subject to further order of the court regarding apportionment between the parties of their respective obligations to pay the reasonable guardian ad litem fees. Taylor complied and deposited $1,000.00 into her attorney's escrow account. After the parties reached a settlement and Mandel petitioned to recover his fees, the circuit court ordered Taylor to pay a portion of Mandel's guardian ad litem fees, a decision which was affirmed by the Court of Special Appeals. The Court of Appeals reversed, holding that under Section 1-202 of the Family Law Article, Maryland Code (1999, 2004 Repl. Vol.), the circuit court did not possess the authority to assess guardian ad litem fees against Taylor, the maternal grandmother of the children. Moreover, the Court also stated that Taylor did not waive her right to object to the guardian ad litem fees or acquiesce in the payment thereof. In this respect, the Court noted that the Amended Order appointing Mandel as guardian ad litem and ordering Taylor to deposit $1,000.00 into her attorney's escrow account, stated that the $1,000.00 was "subject to further Order of this Court regarding apportionment between the parties of their respective obligations to pay the

reasonable counsel fees of the attorney for the minor children," and the court "reserve[d] for future determination" the assessment of guardian ad litem fees. The order, in its ambiguity however, failed to define Taylor's liability, if any, at all. Therefore, Taylor could not have waived her right to object to the fees or acquiesced in the payment thereof. Moreover, the Court stated that when she deposited the money into her attorney's escrow account, she acted involuntarily in compliance with a court order.

IN THE COURT OF APPEALS OF MARYLAND No. 3 September Term, 2007

DENISE TAYLOR v. MARC MANDEL

Bell, C.J. Raker Harrell Battaglia Greene Wilner, A lan M. (R etired, specially assigned) Cathell, D ale R. (Retire d, specially assigned), JJ.

Opinion by Battaglia, J. Bell, C.J., Ra ker, and C athell, JJ., Dissen t.

Filed: November 9, 2007

The case sub judice presents us with the issue of whether a grandparent seeking custody or visitation rights of a minor grandchild may be assessed guardian ad litem1 fees in the litigation she initiated. Denise Taylor, the grandmother against whom such fees were assessed, presents us with the following four questions: 1) Did the Court Err in assessing Guardian Ad Litem's Counsel Fees against Petitioner, the maternal grandmother of the children? 2) Did the Court Err in assessing the costs of the Respondent's appendix against Petitioner when Respondent failed to comply with Md. Rule 8-501 (d)? 3) Did the application of Md. Family Law Code Ann. Section 1-202 to Petitioner and the procedure used to establish Petitioner's liability violate the due process clause and Articles 19 and 24 of the Maryland Declaration of Rights? 4) Did the Court Err in finding that the GAL's[2] bill was reasonable under all the circumstances of the case? Because we hold that the circuit court erred in assessing guardian ad litem fees against Taylor, we reverse the Court of Special Appeals. 3 I. Introduction

As explained by Judge John C. Eldridge in Fox v. Wills, 390 Md. 620, 890 A.2d 726 (2006), "the term `guardian ad litem' has been rarely used by the Maryland General Assembly or by this Court," and that "it usually has been synonymous with `next friend' or `prochein ami,' which is one who brings suit on behalf of a minor or disabled person because the minor or disabled person lacks capacity to sue in his or her own right, or synonymous with one who defends a suit against a minor or disabled person lacking the capacity to defend." Id. at 625-26, 890 A.2d at 729. Both the circuit court and the Court of Special Appeals used the term "guardian ad litem," however, and in order to avoid confusion, we will do the same.
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"GAL" refers to guardian ad litem.

Because we answer question one in the Petitioner's favor, we need not address the other three questions.

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On March 23, 2004, Denise Taylor, Petitioner, and Diane Miskimon,4 filed a complaint against Kristi and William Biedenback in the Circuit Court for Baltimore County, seeking custody of, or in the alternative visitation with, Taylor's grandchildren, Tristian and Memorie Biedenback. Taylor, the maternal grandmother, alleged that the children, while in the physical custody of the Biedenbacks, had been physically and sexually abused and neglected. The Biedenbacks filed an answer to the complaint denying the allegations of physical and sexual abuse, asking the court to dismiss Ms. Miskimon as a plaintiff, and requesting the court to order that the minor children remain in the custody and care of the Biedenbacks and to deny Taylor visitation. The Biedenbacks also filed a motion to dismiss the complaint to which Taylor filed a memorandum in opposition seeking denial of the Biedenbacks' motion and requesting pendente lite custody of the children, a home study, a guardian ad litem for the children, and an emergency hearing. When the Biedenbacks failed to answer Taylor's requests for pendente lite custody of the children, a home study, a guardian ad litem for the children, and an emergency hearing, Taylor filed a request for an order of default iterating her request for a guardian ad litem and a home study. Taylor also filed a motion for an order compelling discovery, asking the court to order the Biedenbacks to file answers to interrogatories that had been served earlier.

Diane Miskimon signed the initial complaint and was listed as a party. The parties agreed to dismiss Ms. Miskimon as a plaintiff, and she is not involved in this appeal.
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Without a hearing, the Circuit Court for Baltimore County granted Taylor's motion to compel discovery, entered an order of default, appointed Marc E. Mandel, Esquire, Respondent, as guardian ad litem for the children, and ordered that a home study be completed; subsequently, Mandel, himself, submitted an amended order containing information regarding the fees of the guardian ad litem, which was signed by the circuit court: THE ORDER OF THIS COURT dated September 15, 2004 appointing Marc E. Mandel, Esquire, Guardian Ad Litem for the minor children is this 18th day of October, 2004 amended as follows: *** 1. To consent or not to the release of privileged medical and/or psychiatric/psychological information regarding the minor children pursuant to Nagel v. Hooks; and, 2. To represent the best interests of the minor children as their guardian ad litem regarding the issues of custody and visitation, and in that regard to participate fully in pre-trial discovery, hearings and trial on the merits; and it is further, ORDERED that Marc E. Mandel, Esquire, as attorney for the minor children, shall have access to copies of the case file and all records regarding this action including, but not limited to, access to the records and/or evaluations of any therapist, psychiatrist, psychologist, or mental health professional as well as any Department of Social Services records regarding the minor children; and it is further, ORDERED that the Court hereby reserves for future determination the award of reasonable counsel fees to Marc E. Mandel, Esquire, upon the filing of a Petition for Counsel Fees by said counsel; and it is further, ORDERED that each party shall advance to her or his counsel of record the sum of $1,000.00, which said sum shall be held in escrow subject to further Order of this Court regarding
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apportionment between the parties of their respective obligations to pay the reasonable counsel fees of the attorney for the minor children. Taylor did not file an objection to the amended order, request a hearing, or file a motion to reconsider, but rather complied and deposited $1,000.00 into her attorney's escrow account. Taylor and the Biedenbacks eventually reached an agreement, putting the settlement on the record in April of 2005. Mandel subsequently filed his petition for guardian ad litem fees,5 and filed an amended petition for guardian ad litem fees two days later, seeking $9,041.73. Taylor filed an Opposition to Guardian Ad Litem's Amended Motion for Counsel Fees in which she challenged the hourly rate charged, the amount of time billed and the proposed apportionment of the bill. Primarily, though, she asserted that Mandel could not recover guardian ad litem fees from her because she was not a "parent" within the purview of Section 1-202 of the Family Law Article, Maryland Code (1999, 2004 Repl. Vol.).6 Mandel's first petition for guardian ad litem fees incorrectly stated that "by prior Amended Order of this Court, the parties were to provide $2,000 each to their respective attorneys to be held in escrow to offset the costs of the GAL's fees." Mandel's amended petition for guardian ad litem fees is identical except that it corrected this mistake, stating that "by prior Amended Order of this Court, the parties were to provide $1,000 each to their respective attorneys to be held in escrow to offset the costs of the GAL's fees." Section 1-202 of the Family Law Article, Maryland Code (1999, 2004 Repl. Vol.), provided: Appointment of counsel for minor. In an action in which custody, visitation rights, or the amount of support of a minor child is contested, the court may: (continued...)
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Additionally, Taylor contended that guardian ad litem fees could not be awarded under Section 12-103 of the Family Law Article, Maryland Code (1999, 2004 Repl. Vol.),7
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(...continued) (1) appoint to represent the minor child counsel who may not represent any party to the action; and (2) impose against either or both parents counsel fees.

Section 1-202 was amended in 2006 and currently states: (a) In general.-- In an action in which custody, visitation rights, or the amount of support of a minor child is contested the court may: (1) (i) appoint a lawyer who shall serve as a child advocate attorney to represent the minor child and who may not represent any party to the action; or (ii) appoint a lawyer who shall serve as a best interest attorney to represent the minor child and who may not represent any party to the action; and (2) impose against either or both parents counsel fees. (b) Standard of care.--A lawyer appointed under this section shall exercise ordinary care and diligence in the representation of a minor child. Md. Code (1999, 2006 Repl. Vol.),

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