Bryant v. Howard County Department of Social Services Ex Rel. Costley

WILNER, J. The ability of a court to enforce child support orders entered by it is often difficult and frustrating. In many cases, the court must invoke, as a last resort, its power to punish a wilfully non-compliant parent for contempt, but when the exercise of that power involves incarceration — deprivation of the parent’s liberty — it is subject to certain circumscribing conditions and limitations. In 1997, through the adoption of Maryland Rules 15-201 through 15-208, we tried to set out criteria for the proper exercise of the power of contempt, in both its coercive and punitive aspects. In this case, the court did not follow the requirements and, as a result, it entered an order that we shall be obliged to vacate.

BACKGROUND Jasmine B. was born out of wedlock in December, 1998. In November, 1996, the Howard County Department of Social Services (DSS), which was then paying public assistance to her mother, Ms. Costley, filed a petition in the Circuit Court for ³⁴ Howard County to declare appellant to be Jasmine’s father and to order him and Ms. Costley to pay child support. Though she was the custodial parent, Ms. Costley was made a defendant because she refused to sign an oath naming the child’s father. See Maryland Code, § 5 — 1010(d)(3)(ii) of the Family • Law Article.

After a hearing before a domestic relations master, during which appellant acknowledged paternity, the court, on February 24, 1997, entered an order that, among other things, declared appellant to be Jasmine’s father and ordered him to pay child support in the guideline amount of $189/month plus an additional $20/month against an arrearage of $569. Appellant paid little attention to that order and, by July, 1998, had increased his arrearage to $3,306. When faced with the possible loss of his driver’s license as a result of that arrearage, he entered into a stipulation and payment agreement, under which he agreed to resume monthly child support of $189 and to pay, in addition, $92/month toward the arrearage. That stipulation was incorporated into a court order entered on August 4, 1998.

Appellant was as non-compliant with that order as with the first one. By December, 2001, his arrearage stood at $11,181, and DSS petitioned to have him held in contempt. The petition, though captioned and filed in the civil paternity proceeding, asked, as the only sanction for contempt, that appellant be “sentenced to a period of incarceration not to exceed [180] days,” without regard to any provision for purging the contempt, which is a criminal penalty not available in a civil contempt proceeding. 1 After a hearing, the domestic relations master ordered appellant to participate in the Absent Parent Employment Program and the court entered an order to that effect on February 28, 2002. That order required appellant to report to the program on a weekly basis, com ³⁵ mencing March 11, 2002, and to accept any employment obtainable under the program.

If no employment was so obtainable, appellant was ordered to conduct a minimum of eight job contacts per week and to continue reporting to the program until released. After a subsequent hearing before the master on April 26, the court, on May 12, 2002, ordered appellant to continue monthly support payments of $189 and to pay an additional $47/month toward an arrearage that then amounted to $11,685. Resolution of the contempt issue was deferred until June 3, 2002. Because appellant arrived late, the master was unable to proceed with the hearing on June 3, and instead scheduled a hearing before a judge on June 27, 2002.

Appellant was advised in writing that, if he desired counsel, he should contact the Office of the Public Defender by June 12, 2002. Appellant did not heed that advice and showed up in court on June 27 without counsel. He said that he intended to retain private counsel but, by the time he realized he could not afford a private attorney, the June 12 deadline had passed. The court was obviously not impressed, found no meritorious reason, and therefore proceeded with the hearing.

Appellant did not contest the arrearage or seek to have either the arrearage or the amount of support reduced. From what he said and from what he implied, it was evident that he had a history of drug abuse, that he had been incarcerated a number of times, including for distribution, and that he had been in various recovery programs, trying to get his life in order. The transcript reveals that, at times, he was crying during his testimony. He said that he had tried to obtain employment but that, with his criminal record, he had difficulty finding a job.

He informed the court that he had recently managed to get two jobs, at least one of which was temporary, and, although he did not seem to know much about the jobs, he said that he was to be paid, from each, about $8/hour. Appellant said that Jasmine and her mother then lived in Georgia, and that when the mother indicated that she needed something for the child, he tried to supply it, although he understood that voluntary gifts or payments did not discharge ³⁶ his child support obligation. Appellant advised the court that he was then on probation in another case in the Circuit Court. DSS noted that appellant had been employed and had earned over $6,000 in 2001, but that he had made no payment toward his child support.

Appellant responded that he was homeless in 2001 and had spent his earnings on hotel rooms and for food for his two other children. On June 27, 2002, the court entered an Order for Probation that referenced the same case number as the paternity action but was captioned “State of Maryland v. Joseph Bryant.” No such case or file existed and none was created as a result of that order. The order stated that the “execution of the sentence of [blank] has been suspended for the offense of ... contempt.” It purported to place appellant on “Supervised Probation” for a period of 18 months, effective June 27, 2002, and, in addition to the conditions usually found in probation orders entered in criminal cases, including reporting to his probation agent as directed and informing the agent of any subsequent arrest, made reference to an addendum. That addendum, which also referenced the paternity action case number, required that appellant pay all “fines, costs, restitution, and fees as ordered by the court,” totally abstain from alcohol and drugs, submit to alcohol and drug testing, attend NA self-help group meetings, and “obtain sponsor + home group w/in 30 days + maintain.” 2 The Order is signed by appellant but is not dated or witnessed.

The addendum is not signed by appellant; indeed, the pre-printed “Consent” paragraph is lined out. The next day, the court entered another order, in the paternity case, that was captioned “Order For Constructive Civil Contempt.” Among other things, the court, in that ³⁷ order, (1) declared a current arrearage of $12,189, (2) found appellant to be in contempt of the May 12, 2002 order, (3) “sentenced” appellant to 180 days incarceration in the Howard County Detention Center, (4) suspended all but 30 days of that “sentence,” (5) directed that appellant report to the county sheriff on August 30, 2002, to begin serving the unsuspended 30 days of the sentence, (6) decreed that, upon payment to DSS of “a purge amount” of $1,000 on or before August 29, 2002, appellant would be released from service of that part of the sentence, (7) declared that service of the remaining 150 days of the “sentence” was suspended on condition that appellant pay DSS $189/month child support and $47/month against the arrearage, and that, upon payment in full of the arrearage, the contempt would be purged, and (8) directed that appellant comply with “all of the conditions specified in the attached addendum to this Order.” One problem with that last, eighth, provision, apparently unnoticed by anyone, is that there was no addendum attached to the June 28 order. There was an addendum attached to the June 27 Order for Probation, but neither that addendum nor the June 27 Order of Probation was attached to the June 28 Order for Constructive Civil Contempt. No appeal was noted from either order.

On September 16, 2002, the Division of Parole and Probation, which assumed supervision of appellant pursuant to the June 27 order, filed a Request for a Warrant in the Circuit Court, alleging that the defendant had violated three conditions of probation by failing to report to his probation officer as instructed, failing to report for drug testing 11 times, and failing to provide proof of attendance at self-help meetings or acquisition of a home group or sponsor. Two days later, the Circuit Court judge entered an order, in the paternity case, directing the issuance of a bench warrant for appellant’s arrest and setting a full cash bond of $10,000. It was not until July, 2003, that the county sheriff was able to locate appellant, however. He had been arrested in Anne Arundel County on two charges of possession of CDS paraphernalia and an additional charge of making a false statement to a police officer and was being held in the Anne Arundel County Detention ³⁸ Center.

On July 8, appellant was transferred to the Howard County Detention Center. 3 On August 7, 2003, the Division of Parole and Probation, responding to the arrest in Anne Arundel County, added two more alleged violations of the probation — appellant’s failure to obey all laws and failure to advise his probation officer of his arrest. The court then, on August 7, 2003, entered an order in the paternity case but showing the docket number of that case as “Criminal No.,” directing appellant to show cause why he should not be held in contempt of the June 27, 2002 order. With the assistance of the Public Defender, appellant moved to dismiss the pending contempt proceedings on the ground that the case was one of alleged civil contempt and that none of the alleged violations constituted a proper contempt allegation in a civil non-support case. Relying on Rawlings v. Rawlings, 362 Md. 535 , 766 A.2d 98 (2001) and Maryland Rule 15-207, appellant maintained that the conditions set forth in the June 27 Order for Probation, which he allegedly violated, were not proper conditions in a civil child support case.

In argument on his motion, he added that “[n]one of the alleged violations has anything to do with a failure to pay child support, failure to be employed, or failure to seek employment” and that the court had no authority to impose those conditions in a civil non-support contempt case. Appellant, personally, filed a separate response, in which he contended that his girlfriend had notified the probation officer of his arrest and that he had not been convicted of any of the Anne Arundel County offenses. Although the current proceeding had been triggered by a report and request for a warrant filed by the Division of Parole and Probation, the response to the Public Defender’s motion came from DSS, which looked not to the June 27 Order for Probation but to the June 28 Order for Constructive Civil ³⁹ Contempt. It contended that the alleged violations were of that order and constituted a contempt separate from the failure to pay child support.

DSS did not respond to appellant’s pro se filing. The court held a brief hearing on September 12, 2003, at which, in addition to some amplification of the legal arguments, the court was advised that appellant had no money and that he had been incarcerated since July 8, both in this case and pursuant to a violation of probation charge in the separate criminal case in Howard County. On October 9, 2003, the court entered another Order for Constructive Civil Contempt in which it (1) found appellant to be in contempt of the June 28, 2002 order, (2) directed that appellant not be further incarcerated, (3) terminated the conditions specified in the “addendum to the Order for Constructive Civil Contempt dated June 28, 2002,” (3) declared that “the remaining conditions of the aforementioned order for Constructive Civil Contempt ... remain in full force and effect,” and (4) ordered that appellant inform DSS, in writing and within 10 days, of any change in his address. The court had explained at the hearing that the point of the drug testing and self-help conditions, upon which the finding of contempt was based, was “to assist [appellant] in his effort to remain drug free, and most importantly, the goal was to keep him employed so that he could continue to pay child support.” Appellant was ultimately released from incarceration on October 23, 2003.

Appellant noted an appeal from the October 9 order, and we granted certiorari on our own initiative prior to any substantive proceedings in the Court of Special Appeals. DISCUSSION What Is Before Us Before addressing the substantive issues raised by the parties, it is important to define what is actually before us and whether it is properly before us. As we read the record, the Circuit Court has abrogated, prospectively, all of the conditions to the probation enunciated in the June 27 Order for ⁴⁰ Probation and the addendum that was attached to it, including the drug testing and self-help requirements. The only conditions that remain in effect are those included in the June 28 Order for Constructive Civil Contempt, and even those conditions were substantially modified.

The June 28, 2002 Order for Constructive Civil Contempt, as noted, “sentenced” appellant to 180 days in jail, suspended all but 30 days, directed that appellant report to the sheriff to serve those 30 days on August 30, 2002, unless he paid a purge amount of $1,000 prior to that date, and directed that appellant would be released from serving the suspended 150 days if he paid $189/month child support and $47/month on the then-existing arrearage. In declaring, in its October 9, 2003 order, that “no further incarceration of [appellant] is ordered,” the court effectively abrogated the “sentence” imposed in the June 28 order and any prospect that appellant will have to serve any part of that sentence. Only two things thus remain. First, even though it abrogated those conditions prospectively as well as any prospect of enforcing them through incarceration, the court purported to hold appellant in contempt for failing, prior to October 9, 2003, to undergo drug testing and to attend NA self-help meetings, as directed in the addendum to the June 27 order.

Because, in announcing that finding of contempt, the court referred to the non-existent addendum to the June 28 order, it is not clear that its finding of contempt was effective, even if valid, but, as the court’s intent seems clear and appellant has not raised that as an issue, we shall, for purposes of this appeal, treat the finding of contempt based on those two conditions as at least facially effective. The second directive that remains in effect is the renewal of the order that appellant pay the $189/month child support and the $47/month on the arrearage. It does not appear that appellant is challenging the second aspect of the October 9 order. As noted, he has never complained about either the setting of the child support or the arrearage.

The only issue he has raised, therefore, is whether the court had authority, in June, 2002, to impose the two ⁴¹ conditions on which the October 9, 2008, finding of contempt was based. Appealability /Mootness The State’s initial response to that issue is- that the appeal should be dismissed. It urges, first, that as appellant has never been incarcerated or otherwise sanctioned and, as matters now stand, cannot be incarcerated, there is no appealable judgment. Apart from the declaration of “no incarceration,” the 18-month period of probation ordered in June, 2002, to which the two conditions were attached, has expired, which, in the State’s view, renders the issue raised by appellant moot.

The State also views the June 27 order as a consent order, from which no appeal is permissible in any event. Finally, it argues that the two conditions were permissible and that a finding of contempt for their wilful violation was valid. Appellant views the two conditions as jurisdictionally deficient, permitting him to challenge them at any time. Though tacitly recognizing that any argument regarding possible future incarceration may be moot, he urges, without any documentation, that the approach taken in his case, of attaching drug testing and rehabilitation conditions to a probation that, in his view, have nothing to do with his paying child support, is commonly used by the Circuit Court for Howard County, that the issue will arise again, and that the Circuit Court needs to be instructed that it may not use that approach.

The question, then, is whether the appeal is a permissible and sustainable one, namely, whether the appeal is from a non-appealable consent order, whether an appeal lies from a contempt finding that is unaccompanied by any sanction, and whether, even if the order was initially appealable, the issue raised by appellant — the validity of the finding of contempt based on non-compliance with the drug testing and rehabilitation requirements — has since become moot. The October 9, 2003 order that embodied the finding of contempt was approved by appellant’s counsel as to form, but it certainly was not consented to by either counsel or ⁴² appellant. The two conditions at issue — drug testing and attending NA self-help meetings — emanated from the addendum that was attached to the June 27 Order for Probation, to which appellant, uncounseled at the time, did consent and from which he did not appeal. Although it is true that, ordinarily, a party may not appeal from a judgment to which he/she consented — see Franzen v. Dubinok, 290 Md. 65, 68 , 427 A.2d 1002, 1004 (1981), Mercantile Trust Co. v. Schloss, 165 Md. 18, 24 , 166 A. 599, 601-02 (1933) — it is also clear that a party may not validly consent to a criminal sentence that is unlawful.

See Holmes v. State, 362 Md. 190, 195-96 , 763 A.2d 737, 740 (2000) and cases cited there. If, as urged by appellant, the conditions at issue were, when first imposed, in the nature of criminal sanctions and, as such, not permissible in a civil contempt proceeding, they would, indeed, constitute an unlawful criminal sentence to which no consent could be valid. The consent issue thus hinges on the substantive one. As to whether an appeal may be taken from a finding of contempt unaccompanied by any sanction, the law generally, and the jurisprudence of this Court in particular, have shifted.

In Kelly v. Montebello Park Co., 141 Md. 194, 196 , 118 A. 600, 601 (1922), this Court observed that, at common law, a court of competent jurisdiction was the sole judge of contempts against its authority and dignity and that its judgment in such cases was final, conclusive, and not reviewable in any other tribunal unless such review was authorized by statute. The Court at least suggested, however, that the unreviewability of contempt orders in Maryland, in the absence of a statute, was limited to findings of criminal contempt, which was the nature of the order then before the Court. That view was confirmed in Ex Parte Sturm, 152 Md. 114, 124-26 , 136 A. 312, 316 (1927) (holding, in absence of statute, order of criminal contempt not appealable). At its next session, the General Assembly, by 1927 Md. Laws, ch. 593, added to the list of equity orders from which appeals may be taken, “an order remedial in its nature adjudging in contempt of Court any party to a cause or any person not a party thereto (except orders passed requiring the payment of alimony).” ⁴³ In International Pocketbook Workers’ v. Orlove, 158 Md. 496 , 148 A. 826 (1930), the Circuit Court had entered a preliminary injunction in a labor dispute, enjoining the defendants from picketing and engaging in certain other concerted activity.

The court thereafter made the injunctions permanent and also found the defendants in contempt for violating the preliminary injunction. Because it found the violations not to be intentional, however, it imposed no punishment. This Court entertained an appeal from the injunctions, which were vacated as being too broad, but dismissed an appeal from the contempt orders on the ground that, even under the statute, the right of appeal “supposes the existence of some injury from the orders to be redressed by appeal.” Id. at 505 , 148 A. at 829 . Because no punishment had been