Garland v. Garland

Powers, J., delivered the opinion of the Court. This appeal is from an order entered in the Circuit Court for Baltimore County by Judge Kenneth C. Proctor finding the appellant in contempt of that court. Because procedural requirements and the manner of the punishment flow from the nature of the proceeding, State v. Roll and Scholl, 267 Md. 714, 730 , 298 A. 2d 867 (1973), which modified and affirmed Roll and Scholl v. State, 15 Md. App. 31 , 288 A. 2d 605 (1972), we shall first examine the law relating to contempts. The Court of Appeals said in State v. Roll and Scholl, supra, at 727: “Today, contempts are classified as civil or criminal and at least in theory either of these may be direct or constructive.

The various categories are not mutually exclusive and in fact the nomenclature assigned to a contempt involves both classes, e.g., a constructive civil, or a direct criminal contempt. Historically, criminal contempts were positive acts which offended the dignity or process of the court. Holding an offending party in contempt of court was designed to vindicate the authority and power of the court and punish disobedience to its orders. The people were considered as the real interested parties to prosecution and the State was generally the prosecutor.” The Court went on to say, at 728: “ * * * the distinction between the two types of contempt has been preserved and is important.

A civil contempt proceeding is intended to preserve ⁴⁷ and enforce the rights of private parties to a suit and to compel obedience to orders and decrees primarily made to benefit such parties. These proceedings are generally remedial in nature and are intended to coerce future compliance. Thus, a penalty in a civil contempt must provide for purging. On the other hand, the penalty imposed in a criminal contempt is punishment for past misconduct which may not necessarily be capable of remedy.

Therefore, such a penalty does not require a purging provision but may be purely punitive. In this State, to these factors must be added the degree of proof required to establish a contempt — a civil contempt need be proved only by a preponderance of the evidence, while a criminal contempt must be shown beyond a reasonable doubt.” Basic criteria applicable for determining if a proceeding is for civil contempt were delineated in Winter v. Crowley, 245 Md. 313 , 226 A. 2d 304 (1967). They have been quoted in State v. Roll and Scholl, supra; McDaniel v. McDaniel, 256 Md. 684 , 262 A. 2d 52 (1970); and Pearson v. State, 28 Md. App. 464 , 347 A. 2d 239 (1975), and we need not repeat them here. With these authorities in mind, we look to the Maryland Rules, Subtitle P, which govern procedures in contempt cases.

Beyond providing, Rule P2, that the subtitle shall apply to both, the P Rules make no attempt to distinguish between civil contempts and criminal contempts. For the distinction between constructive and direct contempts we look to Rule PI, which contains these definitions: “a. Direct Contempt. A ‘direct contempt’ means a contempt committed in the presence of the court, or so near to the court as to interrupt its proceedings, b.

Constructive Contempt. A ‘constructive contempt’ means a contempt ⁴⁸ which was not committed in the presence of the court, or so near to the court as to interrupt its proceedings.” By a decree entered in the Circuit Court for Baltimore County on 16 May 1973 the appellee here, Mary R. Garland, was granted a divorce from the appellant, Thomas A. Garland. The decree contained orders concerning custody and support of children, and alimony. The decree was later modified in some respects not material to this appeal.

The current phase of the original case began with a “Petition For Contempt Citation” filed by Mrs. Garland on 23 December 1974. On the same day the court issued a Show Cause Order. That order was not served, and the court, on 30 January 1975 issued another, identical with the first except for dates. It ordered: «* * * ^at the Defendant, Thomas A. Garland, show cause on or before the 14th day of February, 1975, why the relief prayed in the foregoing Petition should not be granted, provided a copy of the Petition and this Order be, served upon him or his attorney of record on or before the 6th day of February, 1975.” Timely service of the order and the petition was made.

Mr. Garland responded by filing a combined answer and motion to dismiss. Although there is no written order or docket entry in the record, it is apparent that the case was set for a hearing, to be held on 3 March 1975, and that Mr. Garland had notice of the hearing date. The record contains a transcript of proceedings held on 4 March 1975, concluding with the finding of contempt from which this appeal was taken. Mrs. Garland, the nominal appellee, filed no brief and made no argument in this Court.

Mr. Garland’s response to the petition and the show cause order was, as we have said, a combined answer and motion to dismiss. He asserted that the order was illegal because it failed to comply with Rule P4; that the petition lacked the character of a contempt proceeding in that it did not allege ⁴⁹ that he was at fault in any failure to comply or was deliberately failing to comply with the order of the court, but required him to respond to allegations of a private party rather than to findings of the court. He also contended that the order was invalid because it violated Rule 324 b 3 by requiring an answer sooner than 10 days from the date of service. By way of showing cause why the relief prayed should not be granted Mr. Garland answered that “Any failure on his part to comply with the orders of this Honorable Court has been the result of inability to do so and without any intent to frustrate, avoid or otherwise circumvent the said Order.” With this factual outline, and in the light of the controlling authorities, we have no difficulty in holding that Mr. Garland was charged with a constructive civil contempt.

The procedure to be followed is prescribed in Rule P4, Constructive Contempt, which we set out in full: “a. Who May Institute. Constructive contempt proceedings may be instituted by the court of its own motion, by the State’s attorney or by any person having actual knowledge of the alleged contempt. b. Notice to Defendant. 1.

Show Cause Order. (a) Issuance. If the court determines to cite the defendant for contempt, it shall issue an order requiring the defendant to show cause why an order adjudging him in contempt shall not be passed within the time stated therein. (b) Contents.

The show cause order shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the contempt charged. (c) Service. The show cause order shall be served upon the ⁵⁰ defendant pursuant to Rule 104 (Service of Process — Generally) unless the defendant has appeared as a party in the action in which the contempt is charged, in which case service shall be in the manner prescribed by the court. 2. Written Statement.

A copy of any writing or document filed in support of the alleged contempt shall also be served upon the defendant. c. Default — Answer. If the defendant shall answer, the charge shall be set for hearing. If no cause be shown within the time named in the order, the case shall be heard ex parte. d.

Hearing. 1. Appointment of Prosecutor. The court may designate the State’s attorney or any other member of the bar to prosecute the proceeding. 2. When Judge Disqualified.

Unless a defendant otherwise consents, the judge who issued a citation for constructive contempt shall be disqualified from presiding at the hearing except where such contempt consists of failure to obey an order or judgment in a civil case.” In his brief in this Court appellant states the single Question Presented in this way: “Can there be an adjudication of constructive contempt without compliance with the Maryland Rules as to the pleádings, the preliminary orders and a ‘hearing’ in fact?” Obviously the question as worded requires a negative answer. We shall rephrase the question, and ask ourselves whether there was, in this case of constructive civil contempt, substantial compliance with the applicable rules, including a hearing, and whether the facts before the court, ⁵¹ with rational inferences, were sufficient to permit the court to find, by a preponderance of the evidence, that the appellant was in contempt of court. Appellant does not contend on appeal that the petition which initiated this proceeding was insufficient because it did not affirmatively allege that he was able to pay; he does not contend that he was denied due process of law because the show cause order required an answer eight days after service rather than 10 1 days, as provided in Rule 324 b 3. Still another question of pre-hearing procedure, apparent from the record, is not argued here.

That is that the show cause order did not state the time and place of hearing, as Rule P4 b 1 (b) requires. The time and place of such proceedings as were held, which appellant contends was not a hearing, were set later, some time after appellant filed his