Green v. Green

Wilner, J., delivered the opinion of the Court. John and Garnett Green mutually plighted their respective ¹³⁷ troths on October 8, 1948. On May 22, 1954, their union produced Thomas Green, and on April 21, 1955, it produced his brother Herman. 1 The parties separated in 1961 and did not cohabit together thereafter. Mrs. Green (appellee) sued Mr. Green (appellant) for divorce in 1968, but, because of fiscal constraints, was unable to prosecute her action until 1971.

At least part of her financial problem was apparently due to the failure of appellant to provide support for her or the minor children in her care. At some point, the awesome power of the State of Maryland was invoked, for, on August 31, 1970, the Criminal Court of Baltimore, in a criminal non-support action, placed Mr. Green on probation, conditioned upon his paying, through the court’s probation department, the sum of $1,150 per year for the support of his wife and two children. The order broke this sum down into $250 for the support of Mrs. Green and $450 for each of the children. Appellant was also directed to amortize his then-current arrearage of $5,661.69 at the rate of $200 a year, payable on December 31 of each year. 2 Payments for Herman were to be sent to one Harry Cox, with whom Herman was then residing.

On November 8, 1971, a divorce decree was entered by the Circuit Court No. 2 of Baltimore City, finally ending the marriage. The decree awarded custody of Thomas and Herman, then 17 and 16 years of age, respectively, to Mrs. Green and directed appellant to pay to Mrs. Green $1,150 per year “for the support and maintenance of said children and Complainant.” In addition, appellant was ordered to pay appellee $200 a year “on an outstanding arrearage until such time as said arrearage is brought to date____” Finally, the decree stated that “the matter of alimony shall be reserved for the future determination of this Court.” We thus have a decree that (1) provided an annual lump sum for the support of Mrs. Green and the children, without a ¹³⁸ breakdown as to how much was for each, (2) made reference to an outstanding arrearage but no specific reference to the earlier order of the Criminal Court and no ascertainment of the then-current amount of arrearage, and (3) notwithstanding its express provision of support for appellee, reserved for future determination the 1 question of alimony. 3 On February 14, 1973, the equity court ordered” appellant to appear before it on March 12, following, to show cause why he should not be held in contempt for “not obeying the Order of this Court passed on the 8th day of Nov., 1971, directing the payment of Alimony, pendente lite, by him to the plaintiff....” (Emphasis supplied.) Several things are noteworthy about this Order. The most striking thing, of course, is that it referred only to alimony pendente lite, which was not the subject of or mentioned in the November 8,1971, decree. The record does not reveal that a petition was filed by Mrs. Green, or anyone else, seeking this relief, so what the impetus for this peculiar Order was is not at all clear.

The order has stamped on it a certificate of the probation department that the arrearage as of February 5, 1973, was $8,151.64 and that nothing had ever been paid on the arrearage, but the certificate does not indicate how much of that arrearage is for “alimony” or spousal support (much less alimony pendente lite) and how much is for accrued child support. Mr. Green is a seaman, and he was apparently either on a voyage, or about to undertake one, but in either event was expecting to be at sea on the day of his scheduled court appearance. On March 9, 1973, his attorney arranged for a postponement of the March 12 hearing on that account, writing to counsel for appellee that appellant would “make a payment on the arrears as soon as possible” and advising that he (appellant) “will be on a 2 month sea trip” but was “supposed to make an allotment to me to take care of the ¹³⁹ payments.” There is an unsigned handwritten note on the Order itself (not reflected on the true test copy): “3/12/73: By agreement of counsel (W.C. Maddox and M.D. Hyman) case to be postponed until man in case returns from sea trip.” Nothing further transpired until March 9, 1977 — four years later ■— when the court issued another show cause order. This one, also without benefit of a petition, directed appellant to appear in court on April 6, 1977, to show cause why he should not be held in contempt for disobeying the November 8, 1971, order “directing the payment of Chila Support....” (Emphasis supplied.) This order also contained a certificate of the probation department with regard to arrearages.

As of March 7, 1977, the arrearage shown was $3,050.64, with a statement or indication that nothing had ever been paid on it. In the normal course of events, the case was referred to the domestic relations master, Miss Lucy Ann Garvey, but, upon appellant’s request for a court hearing, the file was returned to the judge on April 7, 1977, pursuant to Supreme Bench Rule 571-D. On May 12, 1977, the court sent it back to the master for hearing. The master, in turn, referred the matter to the probation department for a determination of how much, if any, of the arrearage was due to the Department of Social Services. 4 On August 23, 1977, Master Garvey filed a report finding, among other things, that (1) at the time of the 1971 decree, the court had no jurisdiction to award alimony, (2) therefore, the contempt proceeding could involve only an arrearage in child support, (3) the amount of that support should be determined in accordance with the 1970 Criminal Court order — i.e., $450 per annum for each child, (3) the support obligation commenced December 31,1971, (4) Thomas became emancipated on May 14, 1973, and Herman became emancipated on August 31,1975, (5) the requirement of child support should therefore be suspended as of those dates, (6) ¹⁴⁰ appellant was entitled to a credit of $450 for a period of time that Herman was incarcerated, (7) the amount of child support arrearage, taking into account the above factors, was $8,482.74, (8) of that amount, $7,729.64 was due to the Department of Social Services and $753.10 was due to appellee, (9) the amount due to social services should be paid at the rate of $15 a week, and (10) payment could be enforced through contempt proceedings. Appellant excepted to this report; however, after a hearing before the court, the exceptions were denied, and the findings and directives of the Master were adopted in the form of a court order.

It is from that order that this appeal is taken. (1) Power to Punish for Contempt The first six issues raised by appellant are consolidated in his one argument that the court erred in exercising (or threatening to exercise) its power to punish him for contempt in order to enforce payment of these arrearages. He begins by suggesting that support should have been terminated as to Thomas and Herman when they reached their eighteenth birthday — i.e., that Laws of Md., 1973, ch. 651, reducing the age of majority from 21 to 18, should be applied with respect to the 1971 divorce decree. Reading that decree in light of what the Court of Appeals said in Monticello v. Monticello, 271 Md. 168 (1974), however, we reject that suggestion, and conclude that the obligation of support continued until the earlier of the children’s emancipation or 21st birthday.

The real thrust of appellant’s argument is that the power to enforce the payment of child support through contempt proceedings ends when the child ceases to be legally dependent — when he attains his majority or is emancipated. Contending that the appellate courts of Maryland have yet to consider this question, he asks that we adopt what appears to be the “majority” rule supporting his contention. The issue raised here has been considered in a number of other States, and there has developed a substantial split of authority with respect to it. The courts in at least eight States have agreed with the approach urged by appellant, ¹⁴¹ concluding that once the child attains his majority (or otherwise ceases to be dependent), accrued arrearages of support may not be enforced through contempt proceedings. 5 Five, and possibly six, States have taken an opposite view and have recognized or applied the contempt power as a legitimate means of enforcing the payment of arrearages in a proceeding commenced after the child has become of age or self-sufficient. 6 Most of the cases are reviewed in Anno.: Power of Divorce Court, After Child Attained Majority, To Enforce By Contempt Proceedings Payment Of Arrears Of Child Support, 32 A.L.R.3d 888 .

Some of the courts have expressed the reasoning behind their decision; some have not. The clearest explanation for the view espoused by appellant was provided in Fox v. Fox, supra, footnote 5, 371 N.E.2d 1254, 1255 . The court, reviewing the cases establishing what it considered to be the majority rule, stated: “The rationale of these decisions is that the court’s jurisdiction to enforce support money judgments by the extraordinary remedy of contempt is predicated upon the continued dependency of the children, and the need to insure support for these children during their minority. However, when a child reaches majority, the purpose and justification for this extreme remedy terminates.” The concern of the legislature, said the court, was with the support of minor children, not those who had already attained their majority.

Debts due to them, or to a parent on their account, could be enforced in more traditional ways. Thus, the power of contempt, “a harsh and extreme sanction ... ¹⁴² especially as it concerns the payment of a money decree, should be resorted to only where there is no other reasonable means by which the judgment may be enforced and then not in the first instance.” Id. at 1255 . The principal rationale on the other side, which has not been articulated quite as well, seems to be that, in the absence of some statutory provision to the contrary, disobedience of a court order to pay child support remains as contumacious after the child loses his dependency as before. The affront to the court is the same.

The Michigan court noted as well the element of fairness in Wasson v. Wasson, supra, footnote 6, 216 N.W.2d 594, 597 . The mother had to expend her own money to maintain the children, and “[i]n all fairness ... should not be denied the use of contempt proceedings as an effective means to enforce her husband’s duty to support his children.” Yet another consideration, which may be especially germane in this case, is that if the custodial parent loses the remedy of contempt once the child becomes emancipated or of age, and is left only with the ability to execute judgment on the obligor’s property, he or she may be left with no effective remedy at all. An obligor who has little or no property subject to attachment and who is crafty or simply fortunate enough to elude the law’s grasp until his children are 18 or on their own may escape his legal and parental obligation entirely. The effect of this, of course, is to impose upon the custodial spouse, or, as in this case, largely upon society, the financial burden that is rightfully and lawfully his without any practical means of redress.

Were this truly a case of first impression in Maryland — were we free to choose between these two opposing points of view unfettered by constraint of statute or judicial authority — we would choose the approach that allows for the continued use of contempt proceedings for the reason last mentioned. We would not consider it sound judicial policy to encourage in any way the evasion of one’s legal duty to support his or her minor children; and thus we believe the less restrictive view to be the better one. Fortunately, the same result is indicated both by case law and by statute. ¹⁴³ In McCabe v. McCabe, 210 Md. 308 (1956), the Court of Appeals sub silentio approved the use of the contempt power to enforce payment of child support arrearages long after the children had attained their majority. The principal issue raised in that case was whether a Maryland equity court could assume jurisdiction and enforce through traditional equity powers, including contempt, arrearages accruing under a Nevada decree.

As the record extract in that case points out, the children in question were born in 1928 and 1929, respectively. A 1931 Nevada divorce decree obligated the father to pay $40 a month child support and $60 a month alimony. In 1955 — when the children were well over 21 — the mother sued in a Maryland court of equity asking that the court determine an arrearage of $25,890 for “past due alimony and support and maintenance for the two children” and “by suitable decree enforce such rights as might be found to exist in the complainant against the respondent.” 7 Although obviously aware of the fact that the children were then over 21, 8 the Court of Appeals nevertheless held that the contempt power was available to enforce the arrearage, both as to alimony and child support. At page 314, the Court stated: “This Court has held that alimony represents a duty and not a debt....

In Oles Envelope Corp. v. Oles, 193 Md. 79 , the Court said that the obligation to pay alimony is not a debt but a duty resting upon sound public policy, and added: ‘Hence this obligation may be enforced by attachment of the person for contempt, and the defendant may be imprisoned unless he can purge himself of the contempt by paying or by showing that he has neither the estate nor the ability to pay.’ Since the 1950 amendment of Art. Ill, Sec. 38, Constitution of ¹⁴⁴ Maryland, and the decision in Zouck v. Zouck, 204 Md. 285 , obligation of support of minor children under a decree would, like alimony, be considered a duty, not a debt. The public policy of Maryland would seem clearly to permit the relief sought by the wife in this case____” (Emphasis supplied.) It is true, of course, that the issue raised here was not discussed by the Court in McCabe , and we can therefore point to no language in the Opinion that binds us to one theory or another. But the fact that the Court did approve the full panoply of equity powers, including contempt, knowing that the children had already attained their majority, is obviously significant. We can only assume that the Court knew full well what it was doing and, if it believed that contempt proceedings were inappropriate in such a case, would have said so.

See also Bradford v. Futrell, 225 Md. 512 (1961). The McCabe decision had one other noteworthy effect. In mentioning, and indeed relying upon, the 1950 amendment to Md. Const., art. Ill, § 38, 9 the Court made clear that the obligation to pay child support arrearages remained a duty, rather than merely a debt, even after the loss of dependency, and that enforcement of the duty through contempt proceedings would not contravene that Constitutional provision.

This is consistent with the plain wording of the Constitutional provision itself which gives no indication whatever that the higher status of a child support order is lost once the dependency is lost. ¹⁴⁵ Reliance upon the 1950 Constitutional amendment in McCabe becomes even more significant in light of Md. Annot. Code art. 16, § 66J. Originally enacted in 1955 as part of the then-bastardy laws (Laws of Md., 1955, ch. 427), and retained when paternity actions and the enforcement of child support orders entered in such actions were placed under the jurisdiction of the equity courts (Laws of Md., 1963, ch. 722), that section provides, in relevant part: “(a) The orders of court directing payments for the support and maintenance of the child or with respect to any other matter are enforceable in the same manner and to the same extent as other orders of the equity courts of this State, including, but not limited to, citation and imprisonment for contempt....” “(d) Any moneys due and unpaid for the support of the child at the time it reaches the age of 18 years, dies, marries, or becomes self-supporting, shall be a continuing obligation of the party or parties bound by the order of the court to pay the same, until finally and completely paid under all the provisions of law applicable to the order.” (Emphasis supplied.) Section 66J, as noted, deals with paternity cases — with the support of