Hare v. Hare

Thompson, J., delivered the opinion of the Court. The problem of whether a particular contempt proceeding is civil or criminal has been the subject of discussion in ⁷² many Court opinions and other writings. This Court recently reviewed the matter extensively in Roll and Scholl v. State, 15 Md. App. 31 , 288 A. 2d 605 (1972), as did the Court of Appeals in State v. Roll and Scholl, 267 Md. 714 , 298 A. 2d 867 (1973). We need not reiterate those discussions.'This case points up the necessity, as emphasized in the latter case, of determining prior to trial the nature of the contempt proceedings.

As the Court of Appeals said in State v. Roll and Scholl, supra at 730-31: “This is necessary because once a contempt is determined to be in the nature of a criminal proceeding other rights are necessarily activated. While a contemnor in a criminal contempt proceeding in Maryland is not entitled to indictment by a grand jury and may not have a right to a jury trial, 11 Sheets v. City of Hagerstown, 204 Md. 113 , 102 A. 2d 734 (1954), additional criminal safeguards are available to him. The burden of proof is increased, the accused cannot be compelled to testify against himself, he cannot be put in double jeopardy, and, except when a contempt may be dealt with summarily, the panoply of fundamental due process rights comes into play. 12 The Court also pointed out the test for determining whether the proceedings were civil: “The five factors which generally point to a civil contempt are: ⁷³ ‘ (1) the complainant is usually a private person as opposed to the State; (2) the contempt proceeding is entitled in the original action and filed as a continuation thereof as opposed to a separate and independent action; (3) holding the defendant in contempt affords relief to a private party; (4) the relief requested is primarily for the benefit of the complainant; (5) the acts complained of do not of themselves constitute crimes or conduct by the defendant so wilful or contumelious that the court is impelled to act on its own motion.’ ” 267 Md. at 729-30 . With this brief discussion of the law we turn to the facts of the instant case.

On March 20, 1973, Judge Walter R. Haile, in the Circuit Court for Baltimore County, entered a decree of divorce for Audrey Hare against David Hare, the appellant herein. The decree awarded the custody of the sons of the parties to the husband and the daughters to the wife; and further, the decree provided specific visitation rights for the husband as to two of the daughters, in the following language: “ADJUDGED, ORDERED AND DECREED that subject to the further orders of this court David Hare shall * * * have Ann Marie Hare and Sandra Hare with him on Saturday following the date of this order from noon until six o’clock p.m. on Sunday (the following day), and shall at that time return them to their mother; and that David Hare shall have Ann Marie Hare and Sandra Hare with him on the following Saturday from eight o’clock a.m. until nine o’clock a.m. on Sunday (the following day) and shall at that time return them to their mother, and so continuing alternately each week-end;. . .” On August 2, 1973, a “Petition for Attachment for Contempt and for Mental Examination” of David Hare was filed, upon which the court entered a show cause order. It ⁷⁴ was alleged therein: that on July 25th the appellant was released from jail where he had been confined for a similar prior contempt in these same proceedings; that he immediately gave a statement to the press, a copy of which was attached, that he had no intention of complying with the court order directing that he return the two daughters involved to the mother on Sundays after his visit was to be concluded; and, that on Saturday, July 28th, the respondent picked up the two minor children, Sandra Hare and Ann Marie Hare and, contrary to the decree, failed and refused to return the