Lynch v. Lynch

BELL, Judge. This case presents for our resolution the issue of the sufficiency of the evidence that Susan M. Lynch, the respondent, was unable to pay the court-ordered child support to comply with the purge provision set by the Circuit Court for Montgomery County 1 and the propriety of the trial court ⁵¹⁴ holding the respondent in contempt of court. The Court of Special Appeals held, as to the former, that the evidence was insufficient to prove the respondent’s ability to comply, but as to the latter, that the court did not abuse its discretion. Lynch v. Lynch, 103 Md.App. 71, 80-82 , 652 A.2d 1132, 1136-38 (1995).

Accordingly, it affirmed the contempt finding, and reversed the sanction imposed, i.e., the incarceration of the respondent until she complied with the purge provision the court had set. We granted cross-petitions for certiorari. We shall affirm in part and reverse in part. I. The respondent and Robert D. Lynch, the petitioner, divorced in 1987.

At that time, the respondent was awarded custody of the parties’ two minor children. Subsequently, however, the circuit court modified the decree, terminating the respondent’s custody of the children and transferring it to the petitioner. The court also ordered the respondent, who was then working as a receptionist for the United States Government, National Institutes of Health (NIH), earning $460 per week, 2 to pay $150 per month child support, initially through an earnings withholding order, payable through the court’s ⁵¹⁵ Child Support Enforcement Division. 3 The respondent immediately fell behind in the support payments. As a result, the support enforcement division initiated contempt proceedings, pursuant to which the court issued an order requiring the respondent to show cause why she should not be held in contempt.

Over the course of the next two and one-half years, the show cause hearing was continued eight times, at the respondent’s request, and on one occasion, she failed to appear. When a hearing finally was held the respondent had made only one support payment and was, therefore, $5,680 in arrears. The only testimony presented at the hearing was by the respondent. She admitted that she was working when she was ordered to make child support payments and that she continued in that employment for almost a year thereafter.

She quit her job, she explained, to care for her mother, who “got very sick and because of personal problems at home, etc.” She continued to care for her mother until she died. Although testifying to having pursued some job opportunities, the respondent acknowledged that she had remained largely unemployed since August of 1991. She noted that she had a few miscellaneous jobs like yard work or flower delivery. The only applications for jobs to which she testified were to discount retail stores.

The respondent maintained that she had no assets, and that she did not receive public assistance, social security, workers’ compensation, or any other such benefits. Moreover, she testified that she did not own a car, had no bank accounts or valuables of any kind and, except for the $20 that she had in her possession, she had no money. With respect to her living arrangements, the respondent advised the court that she lived rent free in the home of her deceased mother and received free food from a charitable organization called Mana. She also testified that she did not have title to her mother’s home, rather, it had been be ⁵¹⁶ queathed to her children and “the parental guardian,” ie., the petitioner.

Although she said she intended to contest the will, she recognized that, unless she was successful, she would not have title to the house. The petitioner did not cross-examine the respondent, nor did he offer evidence in contradiction of the respondent’s testimony. Instead, he argued that the respondent presented a “classic involuntary impoverishment case,” observing: She doesn’t work, she obviously doesn’t have to work. She can meet her needs by some other way.

I can’t get to any of her assets because she doesn’t legally own anything. In terms of this piece of property, it would be nice if we had a judgment, we could go after the property, but she doesn’t own the property and she won’t do anything to get the estate moving along. The trial court held the respondent in contempt and entered a judgment against her for $5,680. 4 It sentenced her to 20 days in the detention center, but ordered that she could purge herself of the contempt by paying $500. While recognizing that the respondent did not have $500 in cash or assets from which that amount could be acquired, the court nevertheless determined that she had the ability to purge herself of the contempt.

The basis of that determination was its finding that she led a “discretionary lifestyle ... and in the process of it you don’t pay support that you have the ability to pay.” The court admonished the respondent about the importance of her obligation to make “support payments” and that she must “face” and “deal with” the fact that she has to “go out and make some money” to care for her children. The court also commented that the respondent at one time held “a job paying you $24,000 a year, that was a darn good job and you just left it.” ⁵¹⁷ The respondent moved for reconsideration. At that time, the trial court explained what it had meant by “discretionary lifestyle”: many defendants in criminal cases are indigent and qualified for and are in fact represented by the Public Defender’s Office, but those are—not all, but many of them are people who live in a place or a home where somebody else pays their bills, and they actually physically show up in court— they either take a bus or they might borrow somebody’s car, some of them smoke, they can get cigarettes, they don’t live a luxurious lifestyle, but they are able to live, they stay alive, they have some discretion, they have—nobody else has any obligation to support them, but other people do. So, it allows people, some people, an option in their lives that other people don’t have, and they put this term “Discretionary lifestyle” on it.

So that is where I got it from. It is not something that I thought up. I apply it to many people come in as URESA cases. This is a woman who, as I remember, at one time [was paid] 30 or $40 thousand dollars,[ 5 ] working for the United States government, and for one reason or another she decided it wasn’t good—I think maybe she wanted to stop the job to come home and take care of her mother, when her mother was sick, and she did, and she lives in her mother’s home, who is now deceased, apparently there are some other matters going on.

She lives rent-free. Regardless of whether she is going to have ownership in this property, she lives rent-free. She gave me a couple of letters from a couple of places that have supplied her food. I am not sure if one was a church, but those, as I recall, and I could be wrong, because I don’t have them here, but they were 1991 and 1992; not recent.

I think she told me—you said you made the tape—maybe other people help her and allow her to eat and provide food for her so she can stay alive, and I applied that principle. It is a discretionary ⁵¹⁸ lifestyle. It is a lifestyle that she has that isn’t luxurious, she is not living the life of Riley, but she is alive, she makes no money. If she lived in a place where she had no Mends, she had no family, she had no support, she would either have to go to work and make money to live or she would die, and that is what I imposed on her and that is why I said that I found as a fact that she had the present ability to purge herself.

Not because she had $500 in her pocket. These other people who help her have no obligation to pay her child support; nobody else does except her, but because of this, quote “Discretionary lifestyle,” she had the present ability to get the money to pay it. That is what I found as a matter of fact and I am going to stick to it. Until somebody says that discretionary lifestyle that we have talked about doesn’t apply to this situation, I am going to stick to it.

The court was emphatic that it had not found that the respondent had voluntarily impoverished herself. It also made clear what it meant when it indicated that she had the ability to purge herself of the contempt: ... I don’t think she did have $500 in her pocket, I don’t think she did, but I think because of the lifestyle that she leads, has it available to her to purge herself. I found that as a fact.

II

In this State, the basic criteria applicable to civil contempt proceedings, as well as the purpose of such proceedings, are well settled. As to the former, where “(1) the complainant is ... 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; [and] (5) the acts complained of do not of themselves constitute crimes or conduct by the defendants so wilful or contumelious that the court is impelled to ⁵¹⁹ act on its own motion,” the proceeding ordinarily is one for civil contempt. Winter v. Crowley, 245 Md. 313, 317 , 226 A.2d 304, 307 (1967), citing Knaus v. Knaus, 387 Pa. 370 , 127 A.2d 669, 673 (1956). See also State v. Roll & Scholl, 267 Md. 714, 729-30 , 298 A.2d 867, 877 (1973).

With respect to its purpose, we have made clear that “[a] civil contempt proceeding is intended to preserve 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.” Id. at 728 , 298 A.2d at 876 . The conduct which precipitates the initiation of contempt proceedings is the alleged failure, in contravention of a court order, to do that which has been ordered done or the doing of that which is prohibited. When that conduct has been proven, the defendant may be held in contempt.

But, because the intended purpose of the proceedings is remedial— intended to benefit the other party to the action by compelling the defendant to obey the court order—finding the defendant in contempt may not suffice. If the proceedings are to have the desired effect, there must be a means of forcing the defendant to conform his or her conduct to what the court order requires, to force the defendant to obey the court order. Such a means is available when, in addition to entering a contempt finding, the court is able to impose penalties designed to achieve that effect and which, in fact, make the achievement more likely. Imprisonment is such a penalty.

Thus, notwithstanding that the proceedings are civil in nature, a defendant may be imprisoned for civil contempt. Id. at 729 , 298 A.2d at 876 . In the case of civil contempt, the purpose of imprisoning the contemnor is remedial. Therefore, because the purpose of the proceedings defines and limits the penalties that may be imposed, before the contemnor may be imprisoned, he or she must have an opportunity to purge the contempt, that is to say, he or she must have the keys to the prison in his or her pocket.

In re Nevitt, 117 F. 448, 459 (8th ⁵²⁰ Cir.1902). Thus, any sentence of imprisonment entered following a finding of civil contempt must provide for purging. Rutherford v. Rutherford, 296 Md. 347, 355 , 464 A.2d 228, 232-33 (1983); Roll & Scholl, 267 Md. at 728 , 298 A.2d at 876 ; Elzey v. Elzey, 291 Md. 369, 374-75 , 435 A.2d 445, 447 (1981). A “provision for purging” or the “opportunity for purging” relates to affording the defendant “the chance to rid him or herself of guilt and thus clear himself of the charge.” Herd v. State, 37 Md.App. 362, 365 , 377 A.2d 574, 576 (1977).

According to Black’s Law Dictionary 1236 (6th Ed.1990), to “purge” is “[t]o cleanse; to clear. To clear or exonerate from some charge or imputation of guilt, or from a contempt.” Criminal contempt proceedings offer a decided contrast. The object of those proceedings is to punish the contemnor for past misconduct which, unlike in the case of civil contempt, may not necessarily be capable of remedying. The penalty imposed in such cases need not provide a purging provision; it may be purely punitive.

Roll & Scholl, 267 Md. at 728 , 298 A.2d at 876 . Before the defendant may be imprisoned, of course, the defendant must have been held in contempt, as indicated. That requires proof, by the petitioner, that the defendant acted in contradiction of the applicable court order. In the case of a court order prescribing, or prohibiting, a specified course of conduct, the petitioner must establish that the defendant did or failed to do what was required.

Where the order requires the payment of money, he or she has to prove that it was not paid. Moreover, because the purpose of civil contempt proceedings is to coerce future compliance, id., the defendant must have been fully capable of having complied; in addition, the ability to perform the act required by the court order must have been within the power of the defendant. Elzey, 291 Md. at 374 , 435 A.2d at 447 (quoting Williams & Fullwood v. Director, 276 Md. 272, 313 , 347 A.2d 179, 201 (1975)), cert. denied, 425 U.S. 976 , 96 S.Ct. 2178 , 48 L.Ed.2d 801 (1976). See People v. Razatos, 699 P.2d 970, 974 (Colo. ⁵²¹ 1985). “The ‘choice’ must be the defendant’s ‘as to whether [he can] comply.’ ” Elzey, 291 Md. at 374 , 435 A.2d at 447 .

The latter requirement, whether or not the defendant is able to comply with the court order is, however, a matter of defense. Johnson v. Johnson, 241 Md. 416, 420 , 216 A.2d 914, 917 (1966). In “The Indigent Defendant’s Right To Court-Appointed Counsel In Civil Contempt Proceedings For Non Payment Of Child Support Payments,” 50 U. Chi.L.Rev., 326, 338 (1983), the point was made: Inability to comply is a complete defense. Proof of ability to comply requires a showing that the defendant had a resource to meet the court-ordered payments, allowing a reasonable amount for his own subsistence.

If he has the means to comply, the court is justified in reordering his priorities by applying coercive measures. The court exceeds its powers, however, if it confines a man on the ground either that he is healthy and able to work or that he could prevail upon relatives to pay the sums required for his release. We made a similar point in Johnson, 241 Md. at 420 , 216 A.2d at 917 : “The purpose of imprisonment for contempt is to compel compliance with a court order but where the person alleged to be in contempt can establish a valid defense, such as the unintentional inability to obey the order, imprisonment is not proper.” Where the order is one prescribing or prohibiting a specified cause of conduct, the required defense showing is that the defendant is unable to conform his or her conduct in compliance with the court order. 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.” Id.

In that situation, “Moreover, the issue is not the ability to pay at the time the payments were originally ordered; instead, the issue is his present ability to pay.” Elzey, 291 Md. at 374 , 435 A.2d at 448 . Only if he or she fails to show such inability is a finding ⁵²² of contempt and subsequent imprisonment permitted. Id. See 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); 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).

Proof of inability to comply, however, does not guarantee immunity from imprisonment. In Roll & Scholl, the Court explained: Situations may arise where at a hearing held pursuant to an order to show cause in what properly began as a civil contempt, facts are presented which indicate that the alleged contemnor cannot comply with the order of the court that directed him to perform an act for the benefit and advantage of another party to the suit. If this inability to comply was caused by a deliberate effort or a wilful act of commission or omission by the alleged contemnor committed with the knowledge that it would frustrate the order of the court, the civil contempt proceeding should be terminated and new proceedings may be instituted which can result in a finding of criminal contempt. 267 Md. at 730 , 298 A.2d at 877 . Although this Court recognized in Johnson , a civil contempt case, that there are valid defenses to a charge of contempt— we pointedly did not specify civil contempt, 241 Md. at 420 , 216 A.2d at 917—the example we gave was the “unintentional inability to obey the order.” Nothing in that case suggests that the Court intended to limit the defenses that would be valid in contempt proceedings.

Subsequent cases belie such an intention. In Elzey , also a civil contempt case, we considered another example of a valid defense to a contempt proceeding—intentional inability to obey the order. See 291 Md. at 375-76 , 435 A.2d at 448 (quoting Roll & Scholl, 267 Md. at 730 , 298 A.2d at 877 ). The context of that case made clear that such intentional inability is a defense limited to civil contempt proceedings.

Id. Read together with Elzey , there ⁵²³ fore, it would appear that Johnson’s reference to “unintentional inability to obey” was no more than it purported to be, an example of a valid defense. As the respondent correctly argues, “the statement in Johnson can be read to mean that inability to pay precludes imprisonment for civil contempt and an unintentional inability to pay precludes imprisonment for either civil or criminal contempt.” The Respondent’s Brief at 13. Furthermore, the goal of civil contempt proceedings, to coerce compliance with a court order entered primarily for the benefit of private parties to a suit, cannot be accomplished when the responsible party is unable, for whatever reason, to comply.

The same is true in the case of court-ordered child support