September 27, 2006
Case Law Development: Costs for Recovering Abducted Child from Another Country as Child Support or Attorneys Fees
The Maryland Court of Special Appeals addressed a case that I'm inclined to assign to students at the end of the semester with the instructions, "Here, read this case about all the topics we barely touched upon in the course and don't ever let me hear you say -- 'if I can't find a job, I can always do some family law!'"
The case involves a factually and legally complicated story of Mother and Father who had a son (while Mother was married to another man). When the son was 2 1/2 years old, and while a custody action between the parents was pending in Maryland, Father abducted him and took him to Turkey. The court chronicles Mother's efforts to recover her son, which required 2 1/2 years, 11 trips to Turkey, multiple court hearings in both Maryland and Turkey, and over $350,000 in legal and private investigation fees and expenses. Simply reading the story of what happened in this case to the point of the child's return is like a short course in international child custody litigation.
However, the case before the Maryland court required even more, as Mother was awarded some of her expenses in securing her son's return to the United States, which Father challenged in this appeal and sought to avoid through a separate bankruptcy proceeding. The trial court had granted Mother $200,000 in costs in one proceeding and then $252,930 in a second hearing, which it treated as an award of counsel fees and costs. Mother sought to have the first award characterized as a contempt sanction and argued that the trial court had erred in overruling her motion to have the second award made as child support.
The court commented on the parties' motivation for this characterization dispute: "The only reason the parties are arguing over whether the court could sua sponte treat Mother's motion as one for counsel fees and costs, and whether the $ 252,930 judgment is for child support, is that they believe the answers to those questions will determine ... whether that judgment was entered in violation of the automatic stay in bankruptcy.... [T]hat issue is to be decided under federal law, not Maryland law; and federal law about what obligations are child support, or "in the nature of child support," differs from Maryland law on that subject. Therefore, our answers to these two questions do not have the significance the parties believe they do." Indeed, the court went on to explain that, while under state law "counsel fees and costs incurred by a parent in a custody case are not child support, even when they are for the benefit of the child", under federal law, these same expenses are "in the nature of child support" and thus non-dischargeable.
Regarding the characterization of the first award, the court found that the trial court had erred in characterizing that award as one for contempt, as there were no purge conditions in the first award. Rather, the court found that the trial court had retroactively re-characterized the first award in the hearing on the second award. That error required reversal and remand.
While Father prevailed in this round of the litigation, the court was not without commentary on his approach to the litigation. The court addressed Father's argument that he should not be required to pay Mother for the expenses incurred in recoverying the child because Mother's husband -- not Mother -- had actually paid those expenses. In rejecting this argument, the court noted "If nothing else, this argument is notable as a fine example of chutzpah" with a footnote that explored the definition of the term and its use by the courts.
So, read and enjoy, and save the opinion in case you have trouble convincing your curriculum committee that there is sufficient content to justify offering an advanced child custody class.
Corapcioglu v. Roosevelt, 2006 Md. App. LEXIS 219 (September 20, 2006)
Opinion on web (last visited September 22, 2006 bgf)
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