Battaglia, J.
On October 21, 2016, the Circuit Court for Carroll County found appellant, Jason Andrew Poole (Father), in constructive civil contempt of a court order to pay child support for his son, to appellee, Jessie Roebuck (Mother). The court awarded attorneys fees and expenses to Mother. On appeal, Father presents one question for our review: Did the trial court err in awarding attorneys fees in a contempt action? For the reasons set forth below, we answer the question in the negative and affirm the award of attorneys fees.
FACTUAL AND PROCEDURAL BACKGROUND
In June of 2015, the Carroll County States Attorneys Office, on behalf of the Bureau of Child Support Enforcement, filed a Petition for Contempt and Incarceration of Father for failing to comply with a consent order dated April 24, 2012, requiring him to pay $300.00 per month for child support and $10.00 per month toward arrearages, which, at that time, amounted to $20,517.09. Because Mother was employed, though, at the Bureau of Child Support Enforcement of the Carroll County States Attorneys Office, the court, upon request, appointed a Special Prosecutor from the Frederick County States Attorneys Office.
During the contempt hearing later that year, Father stipulated that he was in contempt of the consent order. The court accepted Fathers stipulation, found him in constructive civil contempt, and issued an order finding that Father had accrued outstanding arrearages in the amount of $21,417.90. The order provided that Father could purge the contempt by paying $300.00 per month for support of the child and $10.00 per week toward arrearages. The court scheduled a review hearing for November 12, 2015.
Because of continuing concerns about Mothers employment with the Carroll County States Attorneys Office, that Office requested appointment of a Special Counsel for the Office of the Attorney General, which was granted by the court. Despite that appointment, Father insisted that there continued to be a conflict of interest in the joint representation of the Bureau of Support Enforcement and Mother. As a result, Mother retained private counsel, Christy Saunders, to represent her.
Review hearings occurred on July 21, October 14, and October 21, 2016. Evidence adduced at the hearings reflected that from the date of the initial finding of contempt to October of 2016, Father had paid only $2,104.20 of the $4,340.00 that he owed. Christopher Balog, Fathers employer, testified that he had employed Father for the past six months as a landscaper, that Father had worked three to five days per week, and that he paid Father between $50 and $100 per day in cash.
Text messages from Father to his girlfriend, Sherry Few, were introduced into evidence, revealing that Father had stated that he had hoard[ed] cash for 3 months only paying 1400 in child support ... legally getting away with shorting [Mother] on child support while being in contempt, and that he had planned this for years ... legally getting away with burning [Mother] on 20 grand. Fathers text messages to Ms. Few also indicated that he worked 7 days a[ ] week and only report[ed] 300, and that he has 4800 in a bank account right now, although no bank [account] exists in [his] name because he put his bank account in someone elses name when he seen these interrogatories coming a mile away. Additional text messages from Father to Ms. Few indicated that Father had attended the contempt hearing with 3100 dollars in [his] pocket, 2100 in left pocket 1 grand in right, but that he had no intention of giving [Mother] shit until them cuffs come out[.]
Mother testified that she incurred attorneys fees and expenses related to Ms. Saunders representation, as a result of Father trying to make an issue out of [her] working where [she does]. An itemized statement of Ms. Saunders professional services was introduced into evidence, reflecting a total amount of $3,553.76; representing $2,936.00 in attorneys fees and $617.76 in expenses (relating to process serving fees, copies and postage).
The court determined that Father had failed to pay the purge amount since the time of the August of 2015 finding of contempt, that Father had the present ability to pay the purge amount, and that, based on the evidence, Father had an intent to hide his income to avoid payment. The court ordered Father detained at the Carroll County Detention Center for a period of 120 days, or until he paid the purge amount of $2,235.80, representing the remainder of the unpaid purge amount ordered at the August of 2015 contempt hearing.
The court also awarded Mother attorneys fees and expenses in the amount of $3,553.76 and entered judgment against Father in that amount. In ruling on Mothers request for attorneys fees, the court explained its award as follows:
Also pending before the Court [is] [Mothers] petition through counsel for attorneys fees.
I have reviewed that, I forget what exhibit it was, I think it was defense 5. I reviewed it and found all the charges that were set forth in that exhibit to be fair and reasonable for the Carroll County community. And frankly the bill wasnt really seriously challenged during the testimony in the case.
Family Law Article Section 12-103 permits an award of counsel fees where someone is seeking to recover child support or arrearages.
I find that [Mother] has substantial justification in continuing, she didnt initiate the proceeding but she continued it and chose to have private counsel, which is her right. And I find that based on the situation of the financial status of the parties that even after the purge figure, [Father] has sufficient resources where he would be able to pay such an award.
Therefore, I will award the counsel fees as requested in the amount of $2,936 plus expenses of $617.76, for a total award to [Mother] of $3,553.76.
Father was subsequently released from jail following his payment of the purge amount, and timely noted this appeal.
DISCUSSION
Father does not challenge the circuit courts order finding him in contempt; rather, he challenges only the award of attorneys fees to Mother in the amount of $3,553.76. He contends that attorneys fees are not available in a contempt action, pursuant to Maryland Rule 15-207. Mother acknowledges that Rule 15-207 does not provide for the recovery of attorneys fees, but she asserts that the court did not err in awarding attorneys fees in this action pursuant to the provisions of Section 12-103 of the Family Law Article of the Maryland Code, (1984, 2012 Repl. Vol., 2014 Supp.) as that statute explicitly provides for the recovery of attorneys fees in connection with proceedings to enforce child support orders.
The issue is queued up, then, as to whether the provisions of Section 12-103 permitting the recovery of attorneys fees in child support enforcement actions are applicable in a contempt action governed by Rule 15-207(e). Our determination of this issue is subject to de novo review. See Stevens v. Tokuda , 216 Md. App. 155, 167, 85 A.3d 321 (2014) (stating that issues requiring this Court to undertake a legal interpretation of Rule 15-207 are reviewed de novo ) (citing Rawlings v. Rawlings , 362 Md. 535, 555 n.19, 766 A.2d 98 (2001) (noting that issues of interpretation of Maryland Rules are treated the same as statutory interpretation issues).
Rule 15-207(e)applies to proceedings for constructive civil contempt based on an alleged failure to pay spousal or child support[.] Md. Rule 15-207(e)(1). If the party bringing the contempt action proves by clear and convincing evidence that the alleged contemnor has not paid the amount owed, accounting from the effective date of the support order through the date of the contempt hearing, Md. Rule 15-207(e)(2), the burden shifts to the alleged contemnor to prove:
by a preponderance of the evidence that (A) from the date of the support order through the date of the contempt hearing the alleged contemnor (i) never had the ability to pay more than the amount actually paid and (ii) made reasonable efforts to become or remain employed or otherwise lawfully obtain the funds necessary to make payment, or (B) enforcement by contempt is barred by limitations as to each unpaid spousal or child support payment for which the alleged contemnor does not make the proof set forth in subsection (3)(A) of this section.
Md. Rule 15-207(e)(3). If the court makes a finding of constructive civil contempt, it must issue a written order specifying:
(A) the amount of the arrearage for which enforcement by contempt is not barred by limitations, (B) any sanction imposed for the contempt, and (C) how the contempt may be purged. If the contemnor does not have the present ability to purge the contempt, the order may include directions that the contemnor make specified payments on the arrearage at future times and perform specified acts to enable the contemnor to comply with the direction to make payments.
Md. Rule 15-207(e)(4).
Rule 15-207(e) by its terms, however, does not provide for the recovery of attorneys fees in civil contempt proceedings.
Although Rule 15-207(e) does not contain a provision for attorneys fees, we consult those rules or statutes governing the underlying action to determine the context under which attorneys fees may be available. See Md. Rule 15-206(a) (A proceeding for constructive civil contempt shall be included in the action in which the alleged contempt occurred.). See also Solomon v. Solomon , 118 Md. App. 96, 113-14, 701 A.2d 1199 (1997) (holding that the use of the mandatory term shall in Rule 15-206(a) required that petition for contempt for violation of terms of a custody and visitation agreement be filed in the court where the underlying divorce judgment was issued).
Here, the underlying action is governed by Sections 12-101 et seq . of the Family Law Article. Section 12-103 provides for the recovery of attorneys fees in child support cases:
Award of costs and fees
(a) The court may award to either party the costs and counsel fees that are just and proper under all the circumstances in any case in which a person:
(1) applies for a decree or modification of a decree concerning the custody, support, or visitation of a child of the parties; or
(2) files any form of proceeding:
(i) to recover arrearages of child support;
(ii) to enforce a decree of child support; or
(iii) to enforce a decree of custody or visitation.
Conditions for award of costs and fees
(b) Before a court may award costs and counsel fees under this section, the court shall consider:
(1) the financial status of each party;
(2) the needs of each party; and (3) whether there was substantial justification for bringing, maintaining, or defending the proceeding.
Whom costs and fees awarded to
(c) Upon a finding by the court that there was an absence of substantial justification of a party for prosecuting or defending the proceeding, and absent a finding by the court of good cause to the contrary, the court shall award to the other party costs and counsel fees.
Prior to the enactment of Section 12-103, the right of recovery of attorneys fees in child support cases in Maryland was originally derived from the common law obligation of a father to support his minor child in the form of all necessaries during the marriage and following the divorce of the parents. See Carter v. Carter , 156 Md. 500, 144 A. 490 (1929). In Carter , the Court of Appeals held that a divorced wife was not entitled to recover attorneys fees arising from her effort to prevent the father from obtaining the exclusive custody of [their minor] child. 156 Md. at 509, 144 A. 490. The Court, acknowledged, in dicta, however, that by reason of his parental obligation, a father remains primarily, and the mother secondarily, bound to support and maintain the [child], for necessaries, which may include attorneys fees if such services are reasonable and necessary for the protection or enforcement of the property rights of the minor or his personal protection, liberty, or relief. Id. at 508-09, 144 A. 490. The Court explained, however, that [t]his obligation is at law and not in equity. Id. at 508, 144 A. 490.
In Frank v. Frank , 203 Md. 361, 369, 101 A.2d 224 (1953), the Court concluded, consistent with the dicta expressed in Carter , that in the absence of an agreement, an equity court did not have authority to order the father to pay his childs necessaries in the form of medical expenses. The Court explained that [t]he husbands liability, to pay for necessaries furnished his minor child, is to the supplier in an action at law, and not enforceable by application of the wife to the divorce court. Id. As a result, though necessaries, including attorneys fees, were recoverable in custody and support cases, attorneys fees often were not awarded because absent an agreement, they were recoverable only in actions at law.
The Court of Appeals, in Price v. Price , 232 Md. 379, 385, 194 A.2d 99 (1963), relying on Carter and Frank , further limited a wifes ability to recover attorneys fees in a child support action, holding that because the attorneys fees were not covered or provided for by the separation agreement or divorce decree, the wife must bring a separate action at law to recover those fees. Despite its holding, the Court recognized that [l]ogically, it would seem that this obligation could be enforced in equity, but it declined to abandon the decisions of this Court, holding that this liability of the father must be enforced at law. Id. at 384, 194 A.2d 99. The Court suggested, however, that [i]f a contrary result is preferable, the Legislature may change the rule for the future. Id. at 385, 194 A.2d 99.
The General Assembly apparently did, in fact, prefer a different result, as evidenced by the passage of the Act of 1967, Chapter 488. See Peterman v. Peterman , 14 Md. App. 310, 313-14, 286 A.2d 812 (1972). Section 5A of Article 16 provided:
In all cases where a person makes an application for a decree or modification of a decree with respect to the custody, the amount of support or visitation rights concerning a child or children of the parties, or files any form of proceeding to recover arrearages of child support or otherwise to enforce such decree, the court, after considering the financial status of both parties, their respective needs and whether there was substantial justification for instituting or defending the proceeding, may make such award of costs and counsel fees to either party as shall be just and proper under all the circumstances.
Section 5A of Article 16 expanded the authority of courts presiding over divorce and custody cases to permit awards of attorneys fees in any proceeding. As a result, equity courts had the power to award a fee at any time in child custody and support cases. McCally v. McCally , 251 Md. 735, 736-37, 248 A.2d 875 (1969).
In Bracone v. Bracone , 16 Md. App. 288, 295 A.2d 798 (1972), this Court considered Section 5A in the context of an action initiated as a contempt petition against the husband for failure to pay alimony and child support. In response to the petition for contempt, father requested that his child support and alimony payments be modified to be commensurate with his present income and living expenses, which, he admitted at the hearing before the court, had changed after he intentionally quit his job to avoid paying support and alimony. Id. at 289-90, 295 A.2d 798. In upholding the award of attorneys fees and affirming the trial courts decision not to modify child support payments, we explained that [w]e think it too obvious to require additional comment that the trial judge was empowered under [Section 5A] to award counsel fees to the wifes solicitor, that the award of $150.00 was just and proper under all the circumstances, and that there was substantial justification for defending the proceedings. Id. at 294, 295 A.2d 798.
The Court of Appeals subsequently considered the applicability of Section 5A of Article 16 in Jackson v. Jackson , 272 Md. 107, 321 A.2d 162 (1974), an action brought by a mother to enforce an out-of-state judgment, in which monthly child support had been increased, and her attorneys fees had been awarded. Though the underlying action was not a contempt action, the Court nonetheless described it as a blatant case of a fathers ignoring his obligation to support his children and ignoring the mandate of a court to make monthly payments in satisfaction of that obligation. Id. at 112, 321 A.2d 162. The Court determined that the trial court had abused its discretion by failing to consider the statutory criteria set forth in Section 5A of Article 16 in refusing to award attorneys fees, and remanded the case with instructions that counsel fees also encompass the fees incurred in the appeal. Id.
In 1984, the Legislature enacted a new Family Law Article to the Annotated Code, and the provisions of Section 5 of Article 16 were incorporated into Sections 12-101 to 12-103. Act of 1984, Chapters 204, 296 and 400. It is clear, then, that the Legislature intended to provide for attorneys fees incurred as a result of the enforcement of a child support order for the necessaries of the minor.
Our determination that attorneys fees incurred can be recovered during the enforcement of a child support order, including by way of contempt, is consistent with holdings in cases from sister jurisdictions which sanction the recovery of attorneys fees in contempt actions related to the enforcement of child support. See Dobozy v. Dobozy , 241 Conn. 490, 697 A.2d 1117, 1120 (1997) (noting that [t]here is no meaningful dispute in this case that the plaintiffs [contempt] action constitutes a proceeding seeking relief under the provisions of the dissolution [of marriage] statutes and, therefore, falls within the broad ambit of [the statute permitting an award of attorneys fees]); Worthington v. Harty , 677 So.2d 1371, 1372 (Fla. Dist. Ct. App. 1996) (recognizing that attorneys fees are recoverable in contempt action for enforcement of court order brought under statute governing the dissolution of marriage, which provided for the imposition of fees against the noncompliant party, but holding that the trial court must consider the noncompliant partys ability to pay before awarding fees); and Blair v. Blair , 8 N.C.App. 61, 173 S.E.2d 513, 514 (1970) (holding that trial courts contempt power included authority to order payment of attorneys fees in contempt action arising out of fathers failure to pay child support, pursuant to statute authorizing the recovery of attorneys fees in alimony and support actions).
It is noteworthy that in Dobozy , Worthington , and Blair , the underlying statutes were similar to the provisions in Section 12-103. In Dobozy , the court based the award of attorneys fees on Conn. Gen. Stat. Section 46b-62 (1988), which it quoted as providing that [i]n any proceeding seeking relief under the provisions of this chapter [pertaining to dissolution of marriage] ... the court may order either spouse ... to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82.... Dobozy , 697 A.2d at 1120 (emphasis in original). The underlying statute at issue in Worthington , 677 So.2d at 1372, Fla. Stat. Section 61.16(1) (1994), specifically provided for the recovery of attorneys fees in any proceeding under this chapter [relating to dissolution of marriage and support], including enforcement and modification proceedings and appeals. In Blair , the court held that fathers contempt of a court order to pay child support was governed by the child support statute, N.C. Gen. Stat. Section 50-13.5(b)(3) (1967), which provided that custody and support actions may be joined with alimony actions under N.C. Gen. Stat. Section 50-16.4, which specifically authorized the payment of attorneys fees for the benefit of the dependent spouse to be paid by the supporting spouse[.] Blair , 173 S.E.2d at 514. As a result, we hold that Section 12-103 supports the awarding of attorneys fees in contempt actions because they are actions (i) to recover arrearages of child support; and (ii) to enforce a decree of child support.
Father, however, relies on Bahena v. Foster , 164 Md. App. 275, 883 A.2d 218 (2005), to support his position that attorneys fees are not available in a contempt action under Rule 15-207. In Bahena , we determined that an award of attorneys fees was inappropriate in a contempt action related to the Bahenas failure to comply with a consent order regarding the removal of a tree from their property. Id. at 288, 883 A.2d 218. The American Rule, relating to attorneys fees, to which Maryland adheres, provides that attorneys fees are not recoverable in the absence of agreement, rule, statutory provision or limited case law exception[.] Id. at 288-89, 883 A.2d 218. We concluded that there was no applicable exception to the American Rule, authorizing the recovery of attorneys fees in that contempt action. Id. at 289-90, 883 A.2d 218.
The Fosters also argued that they were entitled to attorneys fees under Md. Rule 1-341, which permits the recovery of attorneys fees in actions in which a party maintains or defends a proceeding in bad faith or without substantial justification. Id. at 291-92, 883 A.2d 218. Their argument that attorneys fees were available under Rule 1-341 failed, however, because there was no allegation that the Bahenas had maintained or defended the proceeding in bad faith - only that they had violated a court order. Id. at 292, 883 A.2d 218.
Bahena is distinguishable from the instant case, however, because here, the court awarded attorneys fees pursuant to Section 12-103, which specifically allows for the recovery of such fees in a proceeding to recover an arrearage of child support or to enforce a child support order. We have recognized that Section 12-103 is an exception to the American Rule, followed in Maryland, requiring that litigants be responsible for their own legal fees. See Davis v. Petito , 425 Md. 191, 200, 39 A.3d 96 (2012) (concluding that, in determining an award of attorneys fees under Section 12-103(b), the trial court must first consider whether the parties had substantial justification for bringing or defending their respective positions prior to evaluating the value of the legal services provided).
Accordingly, the circuit courts award of attorneys fees under Section 12-103 satisfies the exception to the American Rule that was recognized in Bahena , though found not applicable to the facts in that case. We, thus, conclude that the circuit court did not err in awarding attorneys fees to Mother, pursuant to Section 12-103.
JUDGMENT OF THE CIRCUIT COURT FOR CARROLL COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
Constructive civil contempt is defined as any contempt other than a direct contempt. Maryland Rule 15-202(a). Direct contempt is defined as a contempt committed in the presence of the judge presiding in court or so near to the judge as to interrupt the courts proceedings. Rule 15-202(b).
In constructive civil contempt proceedings, a court has the power to imprison one who is found in contempt for refusing to comply with an order to pay child support, pending the purging of the contempt. Maryland Rule 15-207(e)(4). See Middleton v. Middleton , 329 Md. 627, 640, 620 A.2d 1363 (1993) (Permitting a parents child support obligations to be enforced by contempt and, if necessary, imprisonment, is consistent with this States policy of insuring that child support obligations are met and met to the extent necessary for the well-being of the child.). Accord Goldberg v. Miller , 371 Md. 591, 603, 810 A.2d 947 (2002) (citing Lynch v. Lynch , 342 Md. 509, 519, 677 A.2d 584 (1996) ).
After making a finding of contempt, a court may allow the contemnor an opportunity to purge the contempt by deferring disposition, and scheduling a review hearing, often referred to as a purge review hearing or disposition hearing. See e.g., Middleton , 329 Md. at 637-38, 620 A.2d 1363.
Persons imprisoned upon a finding of contempt have a right to appeal the contempt finding, despite having been released from the imprisonment. In re Ariel G. , 153 Md. App. 698, 704, 837 A.2d 1044 (2003), affd , 383 Md. 240, 858 A.2d 1007 (2004) (citation omitted).
Father does not challenge the circuit courts calculation of attorneys fees under Section 12-103(b) of the Family Law Article of the Maryland Code, (1984, 2012 Repl. Vol., 2014 Supp.). As a result, we need not and do not address the calculation of attorneys fees.
Hereinafter referred to as Section 12-103.
In 1972, the Legislature approved the Equal Rights Amendment (ERA), Article 46 of the Maryland Declaration of Rights, which provided that Equality of rights under the law shall not be abridged or denied because of sex. 1972 Md. Laws, Chap. 366. In Rand v. Rand , 280 Md. 508, 516, 374 A.2d 900 (1977), the Court of Appeals held that the ERA modified the common law rule that fathers were primarily responsible for providing their children with necessaries. The Court determined that the ERA mandated that mothers and fathers are equally liable for the support of their minor children. The Court explained: The common law rule is a vestige of the past; it cannot be reconciled with our commitment to equality of the sexes. Sex of the parent in matters of child support cannot be a factor in allocating this responsibility. Id.
In Maness v. Sawyer , 180 Md. App. 295, 325-26, 950 A.2d 830 (2008), we affirmed an award of attorneys fees in a contempt action brought to enforce a child support order. In Maness , the circuit court had issued a pendente lite order in a divorce action, requiring the father to pay child support in the amount of $2,400 per month. Id. at 325, 950 A.2d 830. Father failed to make any support payments to mother during the six-month period prior to trial, but for one payment of $500 on the first day of trial. Id. The circuit court found father in contempt for failing to pay child support from the date of the pendente lite order until the date of trial, and directed that father could purge himself of the contempt by paying the arrearage of $20,299. Id. at 299, 950 A.2d 830. The circuit court further ordered father to pay the wife $5,000 as a contribution toward her attorneys fees incurred as a result of the contempt proceeding. Id.
On appeal, father argued that the circuit court had abused its discretion in awarding attorneys fees to mother because she had no substantial justification in instituting the divorce proceedings. Id. at 324-25, 950 A.2d 830. We found no abuse of discretion in the circuit court determination that, in fact, it was fathers disregard of the child support order, which forced mother to resort to a contempt proceeding to obtain payment of the overdue support that was without substantial justification. Id. at 325, 950 A.2d 830.
This Court explained the circumstances in which attorneys fees are recoverable in Maryland:
Attorneys fees may be awarded where a statute allows for the imposition of such fees, and where parties to a contract have an agreement regarding attorneys fees. Where the wrongful conduct of a defendant forces a plaintiff into litigation with a third party, the plaintiff may recover from the defendant, as damages, reasonable counsel fees incurred in the action with the third party. Additionally, a plaintiff in a malicious prosecution action, who has incurred counsel fees in the defense of the criminal charge, may be awarded those fees as damages in the civil actions.
Bahena , 164 Md. App. at 289, 883 A.2d 218 (quoting Hess Constr. Co. v. Bd. of Educ. , 341 Md. 155, 160, 669 A.2d 1352 (1996) ).