McAlily v. Bailey

Scanlan, J., delivered the opinion of the Court. Appellant, Donald McAlily, attempts to appeal from an order of Judge Richard M. Pollitt, sitting in Circuit Court No. 2 of Baltimore City, which cited him for contempt of court for failure to comply with a consent order of that court, dated August 12, 1966, under which the appellant agreed to pay $6.00 weekly for the support and maintenance of a minor child who was born out of wedlock to the parties, the appellant and appellee, Priscilla Mae Bailey, on or about March 11,1963. On March 27, 1969, the court below, pursuant to the request of the Probation Department of the Supreme Bench of Baltimore City, issued an order to show cause why the appellant should not be held in contempt of court for his failure to pay the Probation Department the $6.00 weekly required by the consent order. It appears that neither the appellee nor her sister, who now is the legal guardian of the minor child, requested that a show cause order be issued and neither desired to have the appellant held in contempt.

The ⁴¹⁵ trial court, in effect, instituted the contempt proceedings on its own motion, as it may do under Rule P4 a of the Rules of Procedure. After the order to show cause was returned non est, the Probation Department filed a petition for a warrant for the arrest of the appellant and a bench warrant was issued by the Circuit Court for that purpose. After the appellant’s arrest on July 20, 1972, a hearing on the show cause order was held before Judge Pollitt on August 24, 1972. The court denied appellant’s motion to dismiss the contempt proceedings and authorized the Department of Social Services of Baltimore City, acting through the Probation Department, to prosecute the contempt charge.

Thereafter, jhe trial judge found appellant in civil contempt of court and remanded him to the custody of the Maryland Department of Corrections for 18 months or until such time as he purged himself of the contempt. On this appeal, the appellant attempts to raise six issues, several of them of constitutional dimension. 1 Unfortunately for the appellant, his failure to comply with the rules of appellate procedure precludes us from considering the interesting questions he has attempted to present. The State has moved to dismiss the appeal for failure to comply with Rule 1026 c 2, or, alternatively, with Rule 1026 g of the Maryland Rules of Procedure. The State is correct and the appellant’s appeal therefore must be dismissed under the authority of Rule 1035 b (4).

Rule 1026 c 2 provides: “Unless a copy of the transcript of testimony is ⁴¹⁶ already on file, the appellant shall promptly file with the clerk of the lower court for inclusion in the record a transcript of all the testimony, and shall also promptly serve a copy of such transcript upon the appellee. Instead of serving and filing a transcript of the testimony, the parties by written stipulation filed with the clerk of the lower court may, or upon order of the lower court shall file with the clerk of the lower court for inclusion in the record only such part of the transcript as the parties or the lower court may deem necessary for the appeal.” The record in this case shows that no transcript of the contempt proceedings held on August 24, 1972 before Judge Pollitt was filed as part of the record. As we have tried to make clear in several of our recent reported decisions, the rules which govern the procedures which must be observed in appealing to this Court “are to be read and followed.” Callahan v. Dean, 17 Md. App. 67, 71 , 299 A. 2d 479 (1973); Laukenmann v. Laukenmann, 17 Md. App. 107 , 299 A. 2d 466 (1973). In a number of unreported decisions of this Court other putative appellants have also been made aware of our firm insistence that the rules of appellate procedure must be observed.

There is no question here but that the appellant failed to comply with the requirements of Rule 1026 c 2 in failing to include in the record “a transcript of all the testimony” taken at the contempt hearing. The appellant does not dispute his failure to provide a transcript of the testimony of the contempt proceedings of August 24, 1972. He argues, however, that he is proceeding pursuant to Rule 1026 g, under which a “Statement of the Case” may be filed in lieu of pleadings and evidence. Specifically, Rule 1026 g provides: “When the questions presented by an appeal can be determined by this Court without an examination of all the pleadings and evidence, the parties with the approval of the lower court may prepare and sign a