Brown v. Brown

²⁷⁵ Digges, J., delivered the opinion of the Court. The appellant here challenges the use of incarceration for contempt to enforce a provision of a separation agreement, incorporated into a divorce and child custody decree, that obligated the husband to pay a specific amount of support for his stepdaughter, as violating the prohibition against imprisonment for debt contained in Article III, section 38 of the Maryland Constitution. The parties to this dispute, Ronald K. Brown, appellant, and Joyce A. Brown, appellee, were divorced on October 22, 1976, by decree of the Circuit Court for Prince George’s County. The decree incorporated a previously executed separation agreement which differs in a material way from most such contracts in only one respect.

Its unusual aspect is contained in Paragraph 7, which states: The husband and wife acknowledge that a child, Lisa Graninger, age 6, was born to wife prior to the marriage of the parties. That despite the fact that the husband is not the natural father of Lisa, in consideration of his love for the child and other good and valuable consideration, the husband agrees to pay support to the wife for Lisa Graninger the sum of $30.00 per week ... commencing on the 5th day of July, 1976, and to continue until [the] child becomes eighteen years of age, is emancipated or dies, whichever first occurs.[ 1 ] While initially discharging his contractual obligation, the appellant soon fell into arrears in the agreed support payments for Lisa. Following a hearing as to whether he was in contempt of court for failing to make these payments, Judge Robert J. Woods, on October 17, 1978, found Mr. Brown to be in default in the amount of $1729.95, adjudged him to be in contempt of court, and subsequently sentenced ²⁷⁶ the stepfather to serve a term of 179 days in jail. In support of his conclusion Judge Woods reasoned: [T]he contempt powers of the Circuit Court do pertain to Lisa under the unusual divorce decree of October 22, 1976, incorporating by reference paragraph 7 of the separation agreement.

Contempt powers deal. . . with a far broader scope of cases than those that are just coupled with child support, contempt is the sanction for disobedience of a Court order. . . . * * * I think that ... the constitutional provision of Art. 3, Section 38 of the Maryland Constitution does not state that dependent children must be children of the party taking upon himself the duty of support. An appeal was noted from the imprisonment order to the Court of Special Appeals, but prior to its considering the matter, we granted certiorari to decide the important issue of the availability of imprisonment under the court’s contempt power to enforce a contractual obligation incorporated into a divorce decree to support a child not his own. The gravamen of the stepfather’s claim of error — the court lacked power to imprison him for the breach of his promise to provide support for his stepdaughter — is based on Article III, section 38 of the Maryland Constitution which, since 1962, has provided: Imprisonment for debt. No person shall be imprisoned for debt, but a valid decree of a court of competent jurisdiction or agreement approved by decree of said court for the support of a wife or dependent children, or for the support of an illegitimate child or children, or for ²⁷⁷ alimony, shall not constitute a debt within the meaning of this section. [Md. Const., Art. III, § 38. 2 ] In attempting to cloak himself in the protection afforded by section 38, the stepfather reasons in this Court that there exists no legal duty, independent of agreement, to support his stepchild, and that his contractual assumption of the obligation to make the weekly payments for Lisa, being voluntary, cannot subject him to incarceration for his failure to pay.

The appellant does not dispute, however, that his promise to pay can be enforced by means of an action of assumpsit or through some other appropriate remedy. On the other hand, the appellee argues that the relationship created between her ex-husband and his stepchild by the separation agreement was such that Lisa became a "dependent child” within the meaning of section 38, and therefore, the obligation of support is a duty of the appellant which can be enforced through use of the court’s contempt power. Since the present dispute must be resolved by determining the scope of this constitutional provision, we initially review the time-honored guidelines developed by this Court to be utilized in construing constitutional language. Generally speaking, the same rules that are applicable to the construction of statutory language are employed in interpreting constitutional verbiage, Kadan v. Bd. of Sup. of Elections, 273 Md. 406 , 329 A.2d 702 (1974); New Cent.

Co. v. George’s Creek Co., 37 Md. 537 (1873). Accordingly, it is axiomatic that the words used in the enactment should be given the construction that effectuates the intent of its framers, see, e.g., Perkins v. Eskridge, 278 Md. 619, 639, 366 ²⁷⁸ A.2d 21, 33 (1976); Beall v. State, 131 Md. 669, 676 , 103 A. 99, 102 (1917); such intent is first sought from the terminology used in the provision, with each word being given its ordinary and popularly understood meaning, e.g., Harbor Island Marina v. Calvert Co., 286 Md. 303, 311 , 407 A.2d 738, 742 (1979); Mauzy v. Hornbeck, 285 Md. 84, 92 , 400 A.2d 1091, 1095-96 (1979); and, if the words are not ambiguous, the inquiry is terminated, for the Court is not at liberty to search beyond the Constitution itself where the intention of the framers is clearly demonstrated by the phraseology utilized. Reed v. McKeldin, 207 Md. 553, 560-61 , 115 A.2d 281, 285 (1955). If an examination of the language, however, demonstrates ambiguity or uncertainty, we look elsewhere to learn the provision’s meaning, keeping in mind the necessity of ascertaining the purpose sought to be accomplished by enactment of the provision.

In this regard we recently summarized the scope of the inquiry in Perkins v. Eskridge by quoting from Reed v. McKeldin, supra, 207 Md. at 560-61 , 115 A.2d at 285 : [I]t is permissible to inquire into the prior state of the law, the previous and contemporary history of the people, the circumstances attending the adoption of the organic law, as well as broad considerations of expediency. The object is to ascertain the reason which induced the framers to enact the provision in dispute and the purpose sought to be accomplished thereby, in order to construe the whole instrument in such way as to effect that purpose. The Court may avail itself of any light that may be derived from such sources, but it is not bound to adopt it as the sole ground of its decision. [Perkins v. Eskridge, supra, 278 Md. at 640-41 , 366 A.2d at 34 (emphasis in original).] Looking first to the historical background of section 38, we observe that, after its adoption to a degree into the English legal system from the early Roman Law of the Twelve Tables (451-50 B.C.), imprisonment for debt, and the struggles to curtail it, has had a long and somewhat erratic history both ²⁷⁹ in England and in this country. See V. Countryman, Cases and Materials on Debtor and Creditor 74-81 (1st ed. 1964); Ford, Imprisonment for Debt, 25 Mich.

L. Rev. 24 , 24-34 (1926); Freedman, Imprisonment for Debt, 2 Temp. L.Q. 330, 330-50 (1927). Despite the cruel and abusive nature of the practice as it existed in England under the early common law, 3 imprisonment for debtors was transferred to the American colonies, substantially intact. V. Countryman, supra, at 76-77.

In Maryland the colonial Assembly early on recognized the existence of the writ of capias ad satisfaciendum by which a debtor was imprisoned where a judgment against him remained unsatisfied. 1715 Md. Laws, ch. 40. The growing sensibilities concerning the harshness and inequity of this imprisonment practice produced minor statutory reform in the Acts of 1820, ch. 186, which required the creditor to pay eighty-seven and one-half cents per week for the support of his imprisoned debtor, and the abolition of the practice as it applied to females by ch. 206 of the Acts of 1824. Imprisonment for debt, however, did not immediately abate to any substantial degree for it appears that as of 1830, three to five times as many persons were imprisoned for debt (3000 annually in Maryland) as were imprisoned for crime. Ford, supra, 25 Mich.

L. Rev. at 29. Responding to a reform movement advocating the banning of such incarceration which pervaded this country in the second quarter of the nineteenth century, the Constitutional Convention of 1851 proposed its abolition which became a part of the organic law of this State with the inclusion of section 44 of Article III as part of the Maryland Constitution adopted in that year. The prohibition was absolute: "No person shall be imprisoned for debt.” The evident purpose of the framers was to abolish the useless, and sometimes cruel, imprisonment of persons who, ²⁸⁰ having honestly become indebted to another, were unable to pay as promised. 4 State v. Mace, 5 Md. 337, 351 (1854). However, early in the development of the case law under this section, a distinction was drawn by this Court between a "debt” within the meaning of section 38, and a legal "duty” arising from or imposed by law.

Thus in the very first case to reach this Court requiring an interpretation of that constitutional provision, the Court held that the term debt does not include fines or penalties levied against one who has been adjudged in violation of the public law. State v. Mace, supra, at 351-52 . See Ruggles v. State, 120 Md. 553 , 87 A. 1080 (1913) (imprisonment for failing to pay motor vehicle fine not violating this section). Similarly, in State v. Nicholson, 67 Md. 1 , 8 A. 817 (1887), the next case reaching this Court involving section 38, where the defendant was indicted for the violation of a statute providing for imprisonment of defaulting tax collectors, this Court upheld the statute reasoning: "There is a broad distinction, however, between imprisonment for a debt within the meaning of the Constitution, and imprisonment for a breach of duty on the part of a public officer ....” Id. at 3 , 8 A. at 818 .

This dichotomy between duty and debt was first applied in this State in a domestic relation context in Dickey v. Dickey, 154 Md. 675 , 141 A. 387 (1928) where the Court, in an opinion penned by Judge Parke, said: ²⁸¹ [T]he obligation to pay alimony in a divorce proceeding is not regarded as a debt but a duty growing out of the marital relation and resting upon a sound public policy, and so this obligation may be enforced by attachment of the person for contempt, and the defendant be imprisoned.... [Id. at 681, 141 A. at 390 .] On the other hand, wife support, contractually assented to upon dissolution of the marriage, not being founded on a legal duty as is strict alimony, was not afforded a similar status. Id. 5 Just one year later, however, this Court, for reasons which to us are not now readily apparent, held, also in an opinion by Judge Parke, that child support, which only two years earlier had been determined to be a common law duty of the father, Blades v. Szatai, 151 Md. 644, 647 , 135 A. 841, 842 (1927), was an obligation in the nature of a debt within the meaning of the constitutional imprisonment prohibition, so that failure of the father to comply with child support provisions of a decree could not subject him to imprisonment. 6 Bushman v. Bushman, 157 Md. 166 , 145 A. 488 (1929). See also Knabe v. Knabe, 176 Md. 606, 617-18 , 6 A.2d 366, 371 (1939). The status of the law as interpreted by the decisions of this Court in the domestic relations area was materially changed by the adoption in 1950 and 1962 of amendments to section 38, which defined "debt” as not including "a valid decree of a court of competent jurisdiction or agreement approved by decree of said court for the support of a wife or dependent children, or for the support of an illegitimate child or ²⁸² children, or for alimony ....” (Emphasis supplied.) These amendments abolished the longstanding technical distinctions between alimony on the one hand, and wife support and the support of dependent children, on the other, so that all three obligations now purport to be enforceable by attachment and imprisonment of the defendant.

See Speckler v. Speckler, 256 Md. 635, 637 , 261 A.2d 466, 467 (1970); Johnson v. Johnson, 241 Md. 416, 419 , 216 A.2d 914, 916 (1966). Furthermore, an agreement for support or alimony which is approved by a court of competent jurisdiction, is equated to a decree of such court, so that neither is a debt within the contemplation of the constitutional prohibition against imprisonment for nonpayment. Zouck v. Zouck, 204 Md. 285, 300 , 104 A.2d 573, 580 (1954). Finally, the 1962 amendment brought within the scope of the exception to the general prohibition against imprisonment for a debt an obligation to support one’s illegitimate child. 7 With this historical background, we now approach a consideration of the prohibition against imprisonment for debt as it applies in the factual context before us.

Specifically, we address the issue whether Lisa, being not the natural daughter of the appellant, but only his stepdaughter, is a dependent child within the meaning of section 38 so that an agreement incorporated into a divorce decree to pay a weekly stipend for her maintenance can, upon default, result in imprisonment as a contempt of court. We begin our discussion of this issue by observing that we cannot detect, from any source, an intention on the part of the General Assembly, as the framers of the 1950 amendment, to expand the noncontractual duty of support owed by adults to minors. In interpreting the phrase "dependent children,” we are guided by what this Court said well over a century ago in a similar context: "We think the Constitution ought to have a common sense interpretation, ²⁸³ by which we mean the sense in which it was understood by those who adopted it...State v. Mace, supra, 5 Md. at 350 . It seems patently clear to us that what was sought to be, and actually was, accomplished by the amendment was permission to enforce by imprisonment, if need be, the legal and moral obligation of support (when expressed in an equity decree) that parents owe to their own children.

Cf. Stone v. Stidham, 96 Ariz. 235 , 393 P.2d 923, 925 (1964) (en banc) (child support and alimony based on moral and social obligation and is not a debt). Indeed, since the primary purpose of the original enactment of section 38’s imprisonment prohibition was to safeguard personal liberty, we believe that, in the absence of a clear indication of an intent to abridge the broad scope of this protection, any doubts concerning the class of children whose support the framers intended could be enforced by imprisonment, should be resolved in favor of the liberty of the citizen. Accord, e.g., Stone v. Stidham, supra, 393 P.2d at 925 ; Tudor v. Firebaugh, 364 Ill. 283 , 4 N.E.2d 393, 395 (1936); 16A Am.

Jur. 2d, Constitutional Law § 619, at 569-70 (2d ed. 1979). In our view, the modifying word "dependent” in the phrase "dependent children” does not, as urged by appellee, broaden the class of children which section 38’s exception provision was meant to include. Rather, it results from recognition by the amendment’s framers that there may be a natural child of a parent: 1) who, although still a minor, requires no support from that parent because the infant is emancipated or possesses sufficient means so as not to require parental supplementation, or 2) who, although an adult, is legally dependent upon that parent for care and sustenance because he is incompetent, or otherwise incapable of caring and providing for himself. In sum, "dependent child,” in the context of this