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Court of Appeals throws out attorneys’ fee award

Maryland’s top court Monday threw out a $30,000 attorneys’ fee award to a father who defeated a mother’s claim in a child-custody case that he had sexually abused their daughter.

The Court of Appeals said a Wicomico County judge, in assessing fees in the custody case, had placed too much emphasis on the fact Michael A. Petito Jr. had paid more than $70,000 for private counsel in his successful defense while his ex-wife, Joanna Davis, was represented at no charge by a legal services agency in bringing the claim.

The court said attorneys’ fees, if awarded in a custody case, must be tempered by the respective financial status and need of each parent — and not augmented by the disparity in what they had paid their attorneys.

Davis’ appellate lawyer hailed the decision, saying that tying an award to the differences in legal fees would be unfair to litigants who receive free legal aid in custody cases.

“It’s great not only for my client but for everyone who receives pro bono services,” said John R. Seward, of Skadden, Arps, Slate, Meagher & Flom LLP in Washington, D.C.

“This opinion reaffirms that you [the judge] need to do a full analysis” of the financial need of the parents when awarding attorneys’ fees in custody cases, he said. “In doing that analysis, it’s not appropriate to write off the value of pro bono legal services.”

Petito’s attorney, Laura E. Hay, did not return telephone messages seeking comment on the decision. Hay is with Cockey, Brennan & Maloney PC in Salisbury.

The high court’s decision addressed Section 12-103 of the state’s Family Law Article, which permits attorneys’ fees to be awarded against a parent who lacked “substantial justification” for bringing or defending a claim for child custody, support or visitation. In awarding fees, the law requires judges to consider the financial status and need of each parent, the court said.

If each parent was substantially justified in bringing or defending the case, the judge can still award fees based on the relative financial status and need of the parents, the court added in sending the case back to Wicomico County Circuit Court for a recalculation of attorneys’ fees, if any.

“Section 12-103 contemplates a systematic review of economic indicators in the assessment of the financial status and needs of the parties, as well as a determination of entitlement to attorneys’ fees based upon a review of the substantial justification of each of the parties’ positions in the litigation, mitigated by a review of reasonableness of the attorneys’ fees,” Judge Lynne A. Battaglia wrote for the court. “The only time that the relative amounts of the parties’ attorneys’ fees should be considered is when both are determined to have a substantial justification for their positions…..”

Petito and Davis, who divorced in April 2006, had joint legal custody of their daughter, Sophia, with Davis having primary physical custody.

In December 2008, Davis filed a complaint for immediate sole legal and physical custody in Wicomico County Circuit Court, alleging Petito had sexually abused then-5-year-old Sophia. Petito denied the allegation, retained counsel and filed a counterclaim, seeking joint physical and legal custody.

Davis was represented pro bono through the Sexual Assault Legal Institute.

After a five-day hearing, Judge Kathleen L. Beckstead concluded Davis had not shown by a preponderance of the evidence that Petito had engaged in “any form of sexual abuse.”

Petito moved for attorneys’ fees of $76,052, saying Davis had lacked substantial justification for bringing the claim.

Beckstead awarded Petito $30,773.54 in attorney’s fees, after taking Davis’s financial situation into account. The judge said Petito had substantial justification in defending the allegation and that Davis’ financial status after the litigation was better than his because she had been represented pro bono.

The intermediate Court of Special Appeals upheld the award last February, prompting Davis to seek review by the Court of Appeals.



Davis v. Petito, CA No. 30 Sept. Term 2011. Reported. Opinion by Battaglia, J. Argued Nov. 3, 2011. Filed Feb. 27, 2012.


Did the trial judge properly consider that the mother was represented pro bono in awarding attorneys’ fees to the father in a child-custody case?


No; the disparity in legal fees paid is not an appropriate factor in calculating attorneys’ fee awards in child-custody cases.


John R. Seward for petitioner; Laura E. Hay for respondent.

RecordFax # 12-0227-20.