Arrington v. Department of Human Resources

ALAN M. WILNER, Judge, Retired, Specially Assigned. We have before us two more cases in which a trial court has searched for some effective way to enforce the legal obligation that parents have to support the children they bring into the world. 1 In Bryant v. Howard County Dept. of Social Services ex rel. Costley, 387 Md. 30, 33 , 874 A.2d 457, 458 (2005), we acknowledged the difficulties and the frustration faced by the courts when dealing with parents who wilfully and defiantly refuse to comply with lawful, and often consensual, child support orders. We recognized in Bryant , as we had in earlier cases, that, when all other efforts fail, the last coercive arrow in the court’s quiver is to hold the parent in contempt of court for wilful disobedience of the support order, but we again cautioned that, when exercise of the contempt power leads to the prospect of incarcerating the parent, the court’s authority and discretion are subject to certain overarching limitations.

We observed that, in an attempt to navigate through those limitations and provide a mechanism to achieve the desired result, the Court, in 1997, made certain revisions to its newly adopted Maryland Rule 15-207. The mechanism created by those revisions may not be perfect, and in some cases may not be effective, but, when employed correctly, it is at least permissi ⁸² ble and has a reasonable chance of success. The problem in Bryant , as well as in Rawlings v. Rawlings, 362 Md. 535 , 766 A.2d 98 (2001), and Wilson v. Holliday, 364 Md. 589 , 774 A.2d 1123 (2001), and Dorsey and Craft v. State, 356 Md. 324 , 739 A.2d 41 (1999) was that the Circuit Court did not follow the path laid out by the Rule. That is also the problem here.

It is, as the great philosopher, Lawrence Peter Berra, is reputed to have said, deja vu all over again. BACKGROUND Brian Arrington Brian Arrington sired three children within an eighteen month period but has steadfastly refused to support any of them. In February, 1992, through a consent paternity judgment entered by the Circuit Court for Baltimore City, he was ordered to pay $25 per week to Audra Hardy for the support of their minor child, Sonata, born in October, 1991. In August, 1992, through a second consent paternity order entered by the Circuit Court, he was ordered to pay Kimberly Valentine $45 per week for the support of their minor child, Martia, born in January, 1992.

Finally in October, 1993, through a third consent paternity order entered by the Circuit Court, he was ordered to pay Ms. Hardy $28 per week for the support of their minor child, Rian, born in March, 1993. By late 1998, Arrington had accumulated an arrearage of nearly $14,800 with respect to Sonata and Rian and over $14,000 with respect to Martia, and contempt charges were filed. It appears that he was incarcerated, at least for a time, when he failed to appear as directed. There is some indication that in September, 1999, he was found in contempt in all three cases but was released from confinement upon his agreement to pay certain lump sums by January 3, 2000.

Whether those sums were paid is not clear. In October, 2001, the three support orders were modified with respect to amounts and payments on the arrearages. 2 ⁸³ The cases now before us commenced in January, 2004, apparently upon the issuance of two Paternity Contempt Warrants, one with respect to Sonata and Rian (the Hardy case) and the other with respect to Martia (the Valentine case). Both warrants state that they were based on verified petitions, but the only petitions that we can locate in the record were those filed in December, 1998, which, of course, were five years old at the time and appear to have been adjudicated in September, 1999. The warrants directed that Arrington be apprehended and committed to the Baltimore City Jail pending a hearing but authorized bail of $5,000.

For whatever reason, it took eighteen months—until July 26, 2005—for those warrants to be served. Upon his arrest, Arrington was incarcerated pursuant to the warrants until mid-September. At some point, a hearing on the contempt petitions was scheduled for October 4, 2005. At that hearing, it appears that an agreement was reached between the State and Arrington, who was represented by counsel, that the case would proceed through an agreed statement of facts.

After questioning Arrington, the court found that his consent to that approach was knowing, intelligent, and voluntary. The agreed statement, recited by the prosecutor, established that the current arrearage with respect to Sonata was $14,933, the arrearage as to Rian was $16,421, and the arrearage with respect to Martia was $27,390. It was agreed as well that Arrington had never claimed any mental or physical disability that would have prevented him from complying with the support orders, that he was employed in the first quarter of 2005 but earned only $166, that he was employed in the second quarter of that year but earned only $1,361, and that he had been employed in 2003 and 2004 but earned only a pittance. ⁸⁴ On that record, the court found the arrearages as agreed. It also found that Arrington had the ability to work, that he did in fact work during the relevant period, that he suffered from no apparent physical or mental disability, that he wilfully failed to comply with the court order, and that he was therefore in civil contempt.

Arrington, who had been released from jail only two weeks earlier, informed the court that he was currently employed, that he made $8 an hour, and that he was living with his sister. In accordance with the understanding between the parties, the court continued the matter until January 12, 2006, but directed that Arrington pay a lump sum of $750 ($250 per child) on the arrearage and that he continue to pay current support. Arrington agreed to that condition. The hearing scheduled for January 12 was postponed, for reasons not appearing in the record.

It was rescheduled' for April 26, 2006, but was again postponed when Arrington failed to appear. A warrant was issued for his arrest, and he was again ordered committed to the Baltimore City Detention Center, subject to bail of $10,000. The warrant was served in July, at which point, following a bail hearing, his aggregate bail, on all three cases, was reduced to $2,000, pending a rescheduled hearing on October 3, 2006. 3 The October 3 hearing began on a note of frustration. Ms. Valentine, Martia’s mother, complained that it was the ninth time she had to appear in court in an effort to enforce the support order.

She reminded the court that Arrington had been ordered to make a lump sum payment on January 12, and that he had failed to do so, and that all she had received were three checks for $48 in April. She complained that “he would just work a job for just a couple of weeks and then stop.” When the court expressed its own uncertainty as to ⁸⁵ what to do, the prosecutor suggested, based on what another judge had been doing, that Arrington, who had already been found in contempt, be incarcerated but immediately put on work release—that the purge be the work release through which he could make the required payments—and that this be done through an entity known as Dismas House. 4 The prosecutor advised the court that, if Arrington were committed to the Baltimore City Detention Center, someone from Dismas House would come to the jail to interview him to see if he qualified as a candidate for the Dismas House program. In the end, the court continued the case so that Arrington, who remained incarcerated in default of the $2,000 bail, could be interviewed. The proceeding resumed on October 25, before a different judge.

The arrearages as of then were nearly $34,000 with respect to Sonata and Rian and $29,500 with respect to Martia. Aside from that, the only new information was that Arrington had been found by the Detention Center to be an acceptable candidate for work release, although it was not clear 1 at the time whether he had been accepted into Dismas House. Defense counsel objected to any incarceration absent a finding of present ability to meet whatever purge was set by the court. Unimpressed, the court committed Arrington to the Division of Correction for a period of eighteen months, subject to the following purge: “Defendant to enter Dismas House and secure full-time employment with earnings with- ⁸⁶ holdings for purge (work release program).” The Commitment Record shows a sentence of eighteen months for civil contempt “to be served at Baltimore City Work Release Program.” From that order, Arrington appealed.

We are advised that, on November 16, 2006, the court entered additional orders in each case committing Arrington to Dismas House and that separate appeals were taken from those orders. On Arrington’s motion, the Court of Special Appeals, on January 31, 2007, stayed the Circuit Court commitment orders and directed that Arrington be released pending the appellate proceeding. Coincidentally, on the same day, the Circuit Court, advised that Arrington had been accepted into Dismas House on October 25, 2006, and that he had obtained full-time employment, entered an order finding that he had purged his contempt and ordering his release from Dismas House. In April, 2007, we granted certiorari prior to any other significant proceedings in the Court of Special Appeals.

Marcellas McLong In September, 1994, through a consent paternity judgment entered by the Circuit Court for Baltimore City, McLong was ordered to pay $25 per week to Sharon Oliver for the support of their minor child, Solena, born in January, 1993. In April, 2003, a petition for contempt was filed, alleging an arrearage of over $7,500. Following a hearing in September, the court found the arrearage to be nearly $8,000, ordered that McLong be adjudged in contempt unless he purged himself of the contempt by making regular support payments of $25 per week and paying an additional $25 per week on the arrearage, and directed that an earnings lien be established. In May, 2005, the Child Support Enforcement Office, alleging an arrearage of over $10,000, requested an order directing McLong to show cause why he should not be held in contempt.

A hearing was scheduled before a Master for July 11, 2005, but McLong failed to appear. A hearing was then scheduled before a judge on July 20, following which the court entered an order establishing an arrearage of $10,470 and directing ⁸⁷ that McLong be adjudged in contempt unless he purged by making the current and arrearage payments called for in the September, 2003 order, though on a monthly, rather than a weekly, basis. That did not seem to work, and in April, 2006, another petition for contempt was filed. A hearing scheduled for July 12, 2006, was postponed until October 5, with the direction that McLong bring with him at that time evidence verifying income from all sources, that he verify that he had made five attempts each week to look for a job, and that he “enroll in and complete GED program, and bring documentation.” 5 At the October 5 hearing, McLong informed the court that he had a job in which he earned $8 an hour, working about 30 hours a week.

He had been working for about two weeks, but had made no support payments. He said that he expected to start a GED program in about two weeks. Because McLong appeared without counsel, the court explained that he had a right to a full trial or he could admit that he was in arrears, and he chose the latter. 6 A child support enforcement official then advised, without contradiction, that, pursuant to the September, 2003 order, McLong should have paid $8,233 in current support and reduction of the arrearage, that he had paid nothing during that period, and that his total arrearage was $12,095. Upon that evidence, the court found the arrear ⁸⁸ age to be $12,095, found as well that McLong was in civil contempt, and postponed disposition until February 1, 2007.

Both orally and in the form of an Order, the court instructed McLong that, upon his return to court, he was to verify his income from every source, make a lump sum payment of $500, and either complete a GED or provide proof of his GED status. When the proceeding resumed on February 1, the court was informed that McLong had not made any of the payments the court directed in October. The court thereupon sentenced McLong to incarceration for two years, which could be purged through the payment of $2,000 in cash. No inquiry was made, and no finding was made, as to whether McLong could pay that amount, or any other amount.

The court treated the sanction as a criminal sentence and advised McLong that he had ten days to ask for “a new trial,” 90 days to request a “modification of the sentence,” and 30 days to file an appeal. The court reset the matter for review in May, 2007. McLong noted an appeal. While the appeal was pending in the Court of Special Appeals, McLong sought a stay of the February 1 order, first from the appellate court and, when that was denied, from the Circuit Court.

On May 15, 2007, the Circuit Court denied the stay but, through a new commitment order, amended the purge to payment of $200 and presentation of a GED certificate. A month later, we granted certiorari prior to any significant proceedings in the Court of Special Appeals. In July, the Circuit Court stayed the May 15 amended commitment order pending completion of the appellate process and ordered the immediate release of McLong from incarceration. In a companion order entered the same day, the court established the current arrearage at $13,070, scheduled a review hearing for November 21, 2007, and, as before, ordered McLong to “enroll in and complete (if possible) a GED class.” THE ISSUES The issues raised by Arrington and McLong are factually distinct but legally similar.

Did the court cross the line by ⁸⁹ imposing sanctions in a civil contempt case that, whatever their intent, are more punitive than coercive? Can a court, in a civil contempt case, impose incarceration as a sanction for the contempt, subject to purge conditions that the contemnor cannot meet in time to avoid the incarceration? The specific argument made by Arrington is that the court erred in (1) continuing his incarceration subject to a cash bail of $2,000, which it knew he could not meet, and (2) imposing incarceration as a sanction for the contempt until he obtains employment and begins making support payments, knowing that he could not meet those conditions prior to commencing the incarceration. McLong complains that the court erred in (1) imposing a sentence of two years imprisonment with a purge provision of $2,000, which the court knew he could not meet, and (2) conditioning release from incarceration on the obtention of a GED certificate, knowing that he could not obtain that certificate prior to commencing the incarceration.

DISCUSSION Mootness as to Arrington Arrington has not challenged the finding of contempt, which was entered in October, 2005, and from which no appeal was taken. His appeals are from the orders entered in October and November, 2006, and go only to the purge and the sanction—his incarceration in default of purge conditions that he could not meet in time to avoid the incarceration. The State contends that, because, during the pendency of the appeal, the Circuit Court declared his contempt purged and ordered his release from confinement, the appeal has become moot and should be dismissed as such. 7 ⁹⁰ The State is correct that Arrington’s appeal has become moot. The only status of which he complains no longer exists.

As noted, he does not challenge the finding of contempt; nor does he complain about the requirement that he obtain employment to which an earnings lien may be attached. His attack is directed solely to the order that he be incarcerated until such time as he obtains that employment or posts $2,000 bail, but that order has been vacated and, in light of the court’s finding that the contempt for which that sanction was imposed has been purged, it may not be reinstated. Arrington’s situation is quite different from those in which we have entertained appeals from contempt findings in the absence of a sanction. In Bryant v. Social Services, supra, 387 Md. 30 , 874 A.2d 457 , the appellant, charged with contempt for failure to pay child support, was, in effect, placed on a criminal probation and ordered, among other things, to submit to periodic drug testing and to attend Narcotics Anonymous or other self-help meetings.

When he failed to comply with those requirements, the court found him in civil contempt, and, although no imprisonment or other sanction was imposed, those two requirements remained in effect. He appealed from that contempt order, complaining that those requirements, addressed to his drug addiction, were impermissible conditions to the enforcement of a child support order and that the court had no authority to base a contempt finding on a violation of those conditions. His challenge was to the contempt finding itself. Noting that Bryant had never been incarcerated or otherwise sanctioned for violating the two conditions and that the probation order that imposed those conditions had expired, the State moved to dismiss the appeal as moot.

We denied the motion. We pointed out that Maryland Code, § 12-304(a) of the Cts. & Jud. Proc. Article expressly permits a person to appeal “from any order or judgment passed to preserve the power or vindicate the dignity of the court and adjudging him ⁹¹ in contempt of court” and that the statute did not require, as a condition to the appeal, that the adjudication of contempt be accompanied by a sanction.

We observed as well that “[a] finding of contempt, even without the immediate imposition of punishment or sanction, leaves the defendant adjudged to have wilfully violated a court order and may well leave the defendant subject to future punishment at the will of the court.” Id. at 45, 874 A.2d at 465 . As we have indicated, that is not the case here. Arrington complains only about the validity of the incarceration, which no longer exists and which cannot, in light of the court’s finding that the contempt has been purged, be reinstituted absent a new finding of contempt. Nor can we discern any indirect or collateral consequences of the orders he has appealed that might preclude a finding of mootness.

Compare Toler v. MVA, 373 Md. 214 , 817 A.2d 229 (2003). Nonetheless, in exceptional situations, we have addressed issues in cases that are technically moot, when “[t]he urgency of establishing a rule of future conduct in matters of important public concern is imperative and manifest,” or where “the matter involved is likely to recur frequently, and its recurrence will involve a relationship between government and its citizens, and upon any recurrence, the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision.” Lloyd v. Supervisors of Elections, 206 Md. 36, 43 , 111 A.2d 379, 382 (1954); Matthews v. Maryland-National Capital Park & Planning Com’n, 368 Md. 71, 96 , 792 A.2d 288, 303 (2002); Hammen v. Baltimore County Police Dept., 373 Md. 440, 450 , 818 A.2d 1125, 1131 (2003). This is such a case. It appears from both the record in this case and from uncontradicted representations made at oral argument that a practice has developed in the Circuit Court for Baltimore City of committing fathers found in contempt for failure to comply with child support orders to Dismas House or the Baltimore City Detention Center until such time as they obtain employment through a work release program or satisfy other conditions they are unable to meet in time to avoid the incarceration.

The validity of that practice, which ⁹² may affect hundreds of recalcitrant parents whose cases come before that court, is what is being challenged by both Arrington and McLong, and it is urgent and imperative that the issue be resolved. The Proper Handling of Non-Support Contempt Cases Until January 1, 1997, the Maryland Rules dealing with contempt proceedings, found in subtitle P of Chapter 1100, were rather sparse. Although they acknowledged the existence of both civil and criminal contempt, they provided little guidance with respect to how to deal with either, but addressed only the distinction between direct and constructive contempt. The case law was somewhat more informative, but not a lot.

In State v. Roll and Scholl, 267 Md. 714, 727 , 298 A.2d 867, 875 (1973), the Court recognized that, over the years, the historical foundation of contempt had tended to erode and “out of the rubble, confused and indistinct categories have arisen.” The Court added, in particular, that “the line between civil and criminal contempt is frequently hazy and indistinct” and that “[o]ften the same acts or omissions may constitute or at least embrace aspects of both.” Id. at 728 , 298 A.2d at 876 . From the haze and rubble, the Court attempted to delineate with better precision the various kinds of contempt that existed and how they should be handled. Roll and Scholl involved criminal contempts—the refusal of two witnesses to testify before a grand jury, even though offered immunity against prosecution for what they might say. The issue was whether the contemptuous refusal to testify was a direct contempt that could be punished summarily or a constructive contempt that required a fact-finding proceeding.

In resolving that issue, the Court looked at the broader universe of contempts, noting that a contempt could be civil or criminal and that, at least theoretically, either could be direct or constructive. There was thus a grid into which contempts could fall: Direct Criminal Constructive Criminal Direct Civil Constructive Civil The Court defined a direct contempt, whether criminal or civil, as occurring when the action of the contemnor “inter ⁹³ ruptts] the order of the courtroom and interfere[s] with the conduct of business,” and is “within the sensory perception of a presiding judge.” Id. at 734 , 298 A.2d at 879 . In that circumstance, the judge “will have a sufficient knowledge of the contemptuous act which tends to interrupt the proceedings and will not have to rely on other evidence to establish all the details, though some of them can be supplied by additional testimony.” Id. A constructive contempt is the reverse of that, conduct that does not interrupt the order of the courtroom or interfere with the conduct of business and is not within the sensory perception of the judge.

The facts demonstrating the contemptuous conduct must be proved by evidence. Addressing the distinction between civil and criminal con-tempts, the Court noted that a civil contempt proceeding is intended to preserve and enforce the rights of private parties to an action and to compel obedience to orders and judgments entered primarily for their benefit. Such a proceeding, we said, is remedial, rather than punitive, in nature, intended to coerce future compliance, and, accordingly, “a penalty in a civil contempt must provide for purging.” Id. at 728 , 298 A.2d at 876 . Conversely, the penalty in a criminal contempt proceeding is to punish for past misconduct, which may no longer be capable of remedy.

That kind of penalty is thus punitive in nature and does not require a purging provision, but it must be determinate. These distinctions, between direct and constructive contempts and civil and criminal contempts, articulated in Roll and Scholl , have been confirmed by us on numerous occasions. See, most recently, King v. State, 400 Md. 419 , 929 A.2d 169 (2007). Roll and Scholl stressed that a civil contempt sanction, being coercive rather than punitive in nature, had to have a purging provision.

Because Roll and Scholl involved a criminal contempt, the Court did not have to wander further into the nuances of civil contempt The Court was surely aware from earlier cases, however, that some judges, when confronting parents or spouses who had wilfully failed to obey support orders and who, when brought to court to face civil contempt ⁹⁴ charges, pled and proved poverty as an excuse, nonetheless ordered their immediate incarceration, subject to a lump sum cash payment purge. They did this in the belief that, before the cell door actually closed later in the day, the money would mysteriously appear, often through the beneficence of a parent, sibling, or friend. The practice was unauthorized and unlawful, even under existing case law. It was not uncommon, however, because, in many instances—though by no means all—it produced the desired result.

In Elzey v. Elzey, 291 Md. 369, 374 , 435 A.2d 445, 448 (1981), the Court reiterated that, in a civil contempt proceeding based on the failure to comply with a support order, “imprisonment may be avoided by showing that one has neither the money nor the ability to pay,” and that “the issue is not the ability to pay at the time the payments were originally ordered” but rather the present ability to pay. Elzey v. Elzey, supra, 291 Md. 369, 374 , 435 A.2d 445, 448 , quoting in part from Soldano v. Soldano, 258 Md. 145, 146 , 265 A.2d 263, 264 (1970) and citing other cases to the same effect. Elzey thus pointedly confirmed that a person may not be incarcerated for civil contempt based on a failure to comply with a support order unless the court established a purging provision with which the person had the current ability to comply and, by so complying, avoid the incarceration, and that courts would no longer be able to ignore that requirement. Most judges got the message and began looking for other ways to coerce compliance.

In 1995, the Court’s Standing Committee on Rules of Practice and Procedure (Rules Committee) filed its 132nd Report, which contained a major overhaul of the Rules dealing with special proceedings, including contempt cases (proposed Rules 15-201 through 15-208). Although the new Rules initially proposed to the Court contained somewhat greater guidance in the handling of contempt proceedings, especially constructive civil contempt proceedings, they did not focus, in particular, on proceedings to enforce support orders. While the 132nd Report was pending, the Court decided Lynch v. Lynch, 342 Md. 509 , 677 A.2d 584 (1996). The Court there recon ⁹⁵ firmed that a person could not be incarcerated for civil contempt unless the court attached a purge provision with which the person had the current ability to comply, but it went further and extended the present-ability-to-comply principle not just to the sanction of incarceration but to the finding of contempt as well.

The Court held that, even upon proof that the person had the ability to comply with a support order during the period of that order and wilfully failed to do so, a contempt finding was impermissible unless the person had the present ability to comply with that underlying support obligation on the day of trial. Immediate concern was expressed by judicial, prosecutorial, and support enforcement officials that Lynch had changed both the structure of civil contempt proceedings and the viability of that remedy to enforce child and spousal support orders. After holding an open meeting on the 132nd Report, at which that concern was discussed, the Court, with some modifications, adopted the Rules recommended in that Report, including the proposed Rules governing contempt proceedings, but, in its June 5, 1996 Order, directed the Rules Committee to look again at the new contempt Rules in light of Lynch and to report any recommended changes to the Court by October 31,1996. See 23:14 Md. Register, P-1 (July 5, 1996).

The Rules Committee held two public meetings on the impact of Lynch , on September 6 and October 4, 1996, and, from the extensive evidence presented, concluded that the concern was valid and that Lynch had gone too far. The problem was that obligees and support enforcement officials might well be able to establish that the defendant had the ability to comply with the support order, at least in part, during the period prior to the filing of the petition for contempt and could use that ability to establish the contempt, but rarely would they be able to document the defendant’s precise financial status on the day of trial. Under Lynch , they complained, if the defendant came to court and simply asserted that he then—that day—had no funds, their inability to controvert that assertion would preclude a finding of contempt. ⁹⁶ The support enforcement community understood that, upon a finding of constructive civil contempt, the court was obliged to establish a purge and that the contemnor could not be incarcerated unless he or she had the current ability to meet that purge, but, under pre-Lynch practice, the judge, notwithstanding the defendant’s current alleged poverty, could determine the arrearage, make a finding of contempt based on the defendant’s past ability to comply with the order, postpone the imposition of any sanction, and direct that the defendant take certain action prior to the next hearing—seek employment or other earning capacity to enable him or her to meet a lump sum payment purge. If the defendant wilfully failed to comply with those directives and for that reason remained unable to meet the purge, the court could find and punish a contempt based on that