Jones v. State

RAKER, Judge. This case is an appeal from a finding of civil contempt for failure to pay court-ordered child support. Appellant raises two questions for our review: I. Whether the trial court erred in accepting counsel’s admission of contempt on behalf of Appellant, where the charge and its consequences were not explained to Appellant, where Appellant did not personally address the court, and where there was nothing in the record evidencing Appellant’s knowledge of his due process right to contest the charges.

II

Whether the circuit court imposed an illegal disposition for civil contempt. For the reasons expressed below, most notably that the factual basis underlying Appellant’s argument is erroneous, we conclude that the trial court properly found Appellant in contempt of court. We agree with Appellant, however, that the contempt order was improper, and accordingly, we shall vacate the judgment of the circuit court. I. On March 18, 1996, the Circuit Court for Baltimore County entered an order of support requiring Appellant, John Paul Jones, as natural parent of Ryan James Jones, to pay $75.00 ²⁶⁹ per week in child support.

When Appellant failed to make any payments, the Baltimore County Division of Child Support filed an Application for Contempt, Civil Special Proceeding Case No. 03-C-95-009806. Appellant was served with an order to show cause why he should not be held in contempt of court for failure to make the payments ordered by the circuit court. He was also advised that the show cause order was based on the application and affidavit filed by the Division of Child Support alleging arrearage of $525.00 as of May 3, 1996. The accompanying summons informed Appellant that he could be sentenced to confinement if found in contempt and advised him of his right to be represented by an attorney at the hearing.

Appellant failed to appear at the scheduled hearing, a writ of body attachment issued and he was arrested and remanded to the Baltimore County Detention Center in lieu of $3,400 cash bail. At a hearing on February 25,1997, Jones appeared with his counsel. The following colloquy occurred: THE COURT: [H]ow much money is due and owing on this account? [SUPPORT OFFICER]: Mr. Jones owes three thousand six hundred and seventy-five dollars. THE COURT: How much is he supposed to pay on this? [SUPPORT OFFICER]: Seventy-five per week.

THE COURT: You contest the amount due and owing? [DEFENSE COUNSEL]: No. THE COURT: I will listen to you. Your case. [DEFENSE COUNSEL]: Your Honor, actually there is an agreement that Mr. Jones is in contempt. He has never made a payment. The only issue then is disposition.

It is my understanding that [the support officer] will be recommending work release and a purge amount of five hundred dollars. This is Mr. Jones’s first time dealing with incarceration and child support. He has no money as of this moment. ²⁷⁰ In response to the court’s suggestion that Jones should be sent to the Division of Correction to encourage him to come up with five hundred dollars, defense counsel explained that Jones had just left the Division of Correction for a violation of probation. Jones then addressed the court: You see, I was living with this lady for five years.

We had a child. Two months after he was born she had left. Things kind of went downhill for me from there. I had the money for the support.

I had a job. I love my child. I want to be with my son. And I lost my job.

Everything just went awry. And I left and went to Oklahoma to get my head together because it did hurt to lose her and my son. I went to Oklahoma. I came back and I turned myself in for the violation and this to get it taken care of.

And I just want to get my son back into my life. I can’t do it from behind bars. The court found Jones in contempt of court, and sentenced him to the Division of Corrections for two years, suspended on the condition that he pay $75.00 per week in support and $35.00 per week towards arrears of $3675.00 as of February 21, 1997. The court-ordered the first payment due on March 10, 1997, and further provided that should Jones fail to make any payment, the full balance at that time shall be due and he shall report to the Division of Corrections to serve his sentence.

The court explained: In effect, if he misses one payment, sir, you let me know. I’m not going to have him make a purge amount, but if he misses one payment, the full amount of the balance will become due and owing. And we will just send him back to the Division of Correction. It is a very easy thing for me to do.

All I have to do is sit up here, look at you and say bye-bye. You are the one that has to do the time. Jones noted an appeal to the Court of Special Appeals, and we granted certiorari on our own motion before consideration by that court. ²⁷¹ II. This case is a civil contempt proceeding. 1 See State v. Roll and Scholl, 267 Md. 714, 729 , 298 A.2d 867, 876 (1973)(In Maryland, “the nature of the proceeding is determined before the time for imposing punishment is reached.”).

Neither party has suggested otherwise. The petition for contempt and the show cause order, initiated by the Division of Child Support and issued by the circuit court, commenced a civil contempt proceeding to recover child support payments on behalf of the mother of the child. In addition, the petition for contempt, the show cause order, the writ of summons and the contempt order of the circuit court reflected the same case number as the original proceeding, and all were captioned “Diane Ward v. John Paul Jones ... Civil Special Proceeding,” identical to the original civil action seeking child support.

The contempt hearing was conducted as a civil proceeding before the trial court. As the Supreme Court noted when it determined that a proceeding was one of civil contempt, “the contempt proceedings were instituted, entitled, tried, and ... treated as part of the original cause in equity.” Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 445 , 31 S.Ct. 492, 499 , 55 L.Ed. 797 (1911). We first consider Appellant’s argument that the trial court erred in accepting defense counsel’s admission of contempt on behalf of Appellant where the charge and its consequences were not explained to Appellant, he did not personally address the court, and there was nothing in the record evidencing his knowledge of his due process right to contest the charges. Appellant asserts that persons charged with civil contempt are ²⁷² entitled to the procedural protections accorded a criminal defendant in a violation of probation proceeding.

See Hersch v. State, 317 Md. 200 , 562 A.2d 1254 (1989). He argues that at a minimum, due process requires that the alleged civil contemnor personally admit the allegations of contempt, and that the record demonstrate he understands the nature of those allegations and the consequences of such an admission. He maintains that when an alleged contemnor is facing incarceration counsel cannot “validly waive his or her client’s right to contest the allegations of contempt, thus immediately and directly placing the client in jeopardy of incarceration.” In support enforcement actions, contempt proceedings are guided by Maryland Rule 15-207. Rule 15-207(e), effective January 1,1997, delineates the circumstances under which a court may make a finding of constructive civil contempt in support enforcement actions. 2 The rule provides, in pertinent part: (2) Petitioner’s burden of proof.

Subject to subsection (3) of this section, the court may make a finding of contempt if the petitioner proves by clear and convincing evidence that the alleged contemnor has not paid the amount owed, accounting from the effective date of the support order through the date of the contempt hearing. (3) When a finding of contempt may not be made. The court may not make a finding of contempt if the alleged contemnor proves by a preponderance of the evidence that ... from the date of the support order through the date of the contempt hearing the alleged contemnor (i) never had the ability to pay more than the amount actually paid and (ii) made reasonable efforts to become or remain employed or otherwise lawfully obtain the funds necessary to make payment. ²⁷³ (4) Order. Upon a finding of constructive civil contempt for failure to pay spousal or child support, the court shall issue a written order that specifies (A) the amount of the arrearage for which enforcement by contempt is not barred by limitations, (B) any sanction imposed for the contempt, and (C) how the contempt may be purged.

In other words, in order to establish civil contempt in nonsupport matters, the moving party must establish by clear and convincing evidence that a prior court order directed the party to pay the support or alimony and the alleged contemnor failed to make the court-ordered payments. The contemnor may defend by proving, by a preponderance of the evidence, that the failure to pay was not an act of willful or contumacious non-compliance. If the court finds a contempt, the court must issue a written contempt order that specifies, in clear language, the amount of arrearage due, the sanction for the contempt, and what the contemnor must do to purge him or herself of the contempt. Appellant has no quarrel with Rule 15-207(e).

His complaint is addressed to the procedures employed by the trial court. A defendant in a civil contempt proceeding is entitled to procedural protections, but those protections do not include all the rights that Appellant claims. 3 See International Union, UMWA v. Bagwell, 512 U.S. 821, 830-31 , 114 S.Ct. 2552, 2559 , 129 L.Ed.2d 642 (1994)(stating that with respect to certain civil contempts, fewer procedural protections are required because they are non-punitive and avoidable, but under some circumstances, civil procedural protections may be insufficient and criminal procedural protections may be necessary and appropriate). Md. Rule 15-206 and 15-207 set forth important safeguards and procedures to be followed in constructive civil contempt proceedings. A defendant in a civil contempt proceeding is entitled to receive notice of the alleged violation, if incarceration is sought, the right to be represented ²⁷⁴ by counsel and appointed counsel if indigent, and an opportunity to be heard on the merits of the charge of contempt.

Generally, when coercive imprisonment is imposed to enforce rights due others, and it is imposed only for non-punitive purposes, due process does not require the extension of all criminal proceeding safeguards. Comment, The Coercive Function of Civil Contempt, 38 U. Chi. L.Rev. 120,128 (1965). Appellant’s claim of denial of due process rests upon the validity of his premises that the charges were not explained to him, that he did not personally address the court, that the record did not show he knew of his right to contest the charges, and that the court’s finding of contempt rested upon his counsel’s admission.

The facts in this case do not support Appellant’s argument. Appellant was served with the petition setting forth the precise nature of the contempt, along with a show cause order. In the show cause order and accompanying summons, Appellant was informed of the nature of the charges, the possibility of incarceration, and the opportunity to contest the charges. He was represented by counsel.

Moreover, the court did not accept counsel’s statement as an admission of contempt. The court accepted counsel’s admission that Appellant had failed to pay. Counsel’s statement simply satisfied the element of non-payment of the ordered child support. 4 Appellant personally admitted that, following the order to pay, he had the money for child support, he had a job, he did not pay because he was upset, and he “took off’ to get his “head together.” Appellant’s admission satisfied the element that he had the ability in the past to pay the ordered support and that he failed to pay. Based on all the evidence before the court, appellant properly was found in contempt.

In addition to Appellant’s faulty factual argument, his reliance on Hersch is misplaced. In Hersch , we considered the ²⁷⁵ question of whether a waiver of the right to a hearing and to adequate proof of a violation of probation may be accomplished by a defendant’s attorney, or whether a waiver of that right requires a knowing and intelligent waiver that would satisfy a waiver standard under Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938). We began with the recognition that violation of probation proceedings are civil actions. Hersch, 317 Md. at 206 , 562 A.2d at 1257 .

This fact, however, was not dispositive in determining the rights of a probationer. Writing for the Court, Judge McAuliffe observed: The touchstone of due process is fundamental fairness. When the immediate consequence of a violation of probation may well be imprisonment, often for a significant period of time, we believe a Johnson v. Zerbst standard must apply to the waiver of the important right that the probationer has to put the State to its proof. Id. at 208-09 , 562 A.2d at 1258 (emphasis added).

We imposed this higher standard of waiver in violation of probation proceedings because we concluded that on balance, this standard “goes a long way toward ensuring essential fairness in an important proceeding while imposing only a small additional burden upon the trial judge and permitting the proceeding to remain essentially informal.” Id. at 209 , 562 A.2d at 1258 . Under Appellant’s analysis, he is entitled to the procedural protections that defendants enjoy in violation of probation proceedings because, in his view, the court’s finding of contempt exposes him to “the threat of immediate incarceration.” He is incorrect. Under Rule 15-207, the finding of civil contempt does not pose an immediate threat of incarceration to the contemnor. Maryland law has long required a distinct regimen of substantive and procedural safeguards for persons found to be in civil contempt of a support enforcement order. “Only if [the contemnor] fails to show [a present] inability [to pay] is ... subsequent imprisonment permitted.” Lynch v. Lynch, 342 Md. 509, 521-22 , 677 A.2d 584, 590 (1996).

See ²⁷⁶ Elzey v. Elzey, 291 Md. 369, 374 , 435 A.2d 445, 448 (1981); McDaniel v. McDaniel, 256 Md. 684, 692-93 , 262 A.2d 52, 57 (1970); Speckler v. Speckler, 256 Md. 635, 637 , 261 A.2d 466, 467 (1970); McCabe v. McCabe, 210 Md. 308, 314 , 123 A.2d 447, 450 (1956); Schwartzman v. Schwartzman, 204 Md. 125, 135 , 102 A.2d 810, 815 (1954); Oles Envelope Corp. v. Oles, 193 Md. 79, 92 , 65 A.2d 899, 905 (1949); Dickey v. Dickey, 154 Md. 675, 681 , 141 A. 387, 390 (1928). The procedural component to this restrictive requirement is that any party judged to be a civil contemnor must be afforded the opportunity to show a present inability to purge the contempt: “Where the order calls for the payment of money, the defendant is entitled to the ‘opportunity to show that he [or she] had neither the estate nor the ability to pay his [or her] obligation.’ ” Lynch, 342 Md. at 521 , 677 A.2d at 590 (alterations in original) (quoting Johnson v. Johnson, 241 Md. 416, 420 , 216 A.2d 914, 917 (1966)). This requirement is not changed by the adoption of Md. Rule 15-207(e). Although a finding of contempt under 15-207(e) requires only a determination that the alleged contemnor had the ability in the past to comply with the court order, unless and until the contemnor has been “given an opportunity to show that he ha[s] neither the estate nor the ability to pay his obligation and fail[s] to make such a showing, he should not [be] incarcerated.” Johnson, 241 Md. at 420 , 216 A.2d at 917 (1966), quoted in Lynch, 342 Md. at 513, n. 1 , 677 A.2d at 586, n. 1 , and Elzey, 291 Md. at 374 , 435 A.2d at 448 .

In the instant case, the trial court made no provision in the contempt order for the Appellant’s requisite opportunity to show a contemporaneous lack of ability to pay, were he to fail to comply in the future. In sharp contrast to a probationer in a criminal case, Appellant could not have been subject to immediate incarceration. We recognize that there may be cases, unlike the one before us, where the trial court makes the finding that a contemnor indeed has the present ability to pay. The criminal probationer and the civil contemnor are