Nnoli v. Nnoli

SMITH, Judge. We have here two appeals. Emmanuel Nnoli and Nina Nnoli are husband and wife. Nina Nnoli appeals from her husband’s release from incarceration on his petition for habeas corpus.

We shall reverse that judgment in number 1253. Emmanuel Nnoli appeals a trial judge’s refusal to abate a contempt order and to release him forthwith from incarceration in order to afford him the ability to comply with the ²⁴⁶ purging provision of the order. We shall affirm that judgment in number 1303. I. These parties have been here before.

See Nnoli v. Nnoli, 96 Md.App. 803 [1993]. In our earlier opinion, we said: The parties, both of whom are Nigerian nationals, married on 7 July 1980 in Stillwater, Oklahoma. Two children were born of the marriage, Audrey Nnoli (now eleven years of age), and Eileen Nnoli (now nine years of age). The children enjoy dual citizenship in the United States and in Nigeria.

In January 1987 the parties jointly decided to send the two children to Nigeria to stay with their maternal grandparents until the summer of 1987. In January of 1988, Mr. Nnoli traveled to Nigeria and, without Mrs. Nnoli’s consent, removed the children from the residence of her parents and placed them in his parents’ home in Nigeria. He then returned to Maryland and resumed marital cohabitation with Mrs. Nnoli until September 1988. On or about 13 September 1988, Mrs. Nnoli traveled to Nigeria and attempted to remove the children from the care of her husband’s parents.

Mrs. Nnoli was denied access to the children and was thus unable to remove the children. She returned alone to Maryland in October 1988, at which time she discovered that in her absence Mr. Nnoli had moved, sold the marital home, and discarded her possessions and clothing____ At the time Mrs. Nnoli instituted the divorce proceeding, the Nnoli children had been in Nigeria for a period of twenty-one consecutive months, and had been regularly enrolled in and had attended Nigerian schools. [Footnote omitted.] Emmanuel was found in contempt of court on April 21,1992, for his failure to deliver custody of the parties’ minor children to his wife, precipitating the earlier appeal. The divorce ²⁴⁷ action, we are informed, is still pending. On May 7, 1993, this Court affirmed the judgment of the circuit court. 1 On May 13, 1993, Emmanuel was apprehended upon a body attachment and brought before the court.

The trial judge (Miller, J.) at that time ordered Emmanuel remanded to the custody of the sheriff and incarcerated until he complied with the purging provision of the court’s earlier contempt order, namely, the return of the children to Nina. On June 11, 1993, Emmanuel filed several pleas including a motion for emergency hearing and a motion to abate the contempt order and to release him forthwith from incarceration in order to afford him the ability to comply with the purging provision of the order. A hearing was then held on June 30, 1993, before Judge Miller, the same trial judge who, on May 13, had remanded him to the custody of the sheriff and incarcerated him until he complied with the purging provision of the contempt order. He found that Emmanuel had conspired with his family to deprive Nina of ever seeing her children.

He further found that Emmanuel was lying about his activities, both in Maryland and in Nigeria, both as to events in the past and the present. Incarceration was ordered to continue with the provision that Emmanuel would be released from custody when the minor children were produced. It is from that order that Emmanuel appeals. On July 8, 1993, Emmanuel applied for a writ of habeas corpus before another Montgomery County circuit judge, Judge Ryan.

The sole defendant named on that petition was Mrs. Nnoli. The hearing for that matter was held on July 13, 1993, before that judge. He ordered Emmanuel’s release, Nina appeals. At the hearing before Judge Miller on June 30, Emmanuel and Nina both testified and were subject to cross-examination.

The only other evidence received at that hearing was affidavits ²⁴⁸ of Thomas L. Heeney, Esq., relating efforts and investigation he had made on behalf of Emmanuel. These were received over objection. Nina’s counsel sought unsuccessfully to cross-examine Heeney. At the conclusion of those proceedings Judge Miller said: All right.

In this case, I guess, since the children, I guess it was 1986, were voluntarily by the agreement of the parties sent to Nigeria, Mrs. Nnoli has not seen her children, and I think that’s close to seven years, as I understand it, and from shortly after the time they got to Nigeria, it seems clear to this Court that there was a conspiracy between his family and Mr. Nnoli to make sure that Mrs. Nnoli does not see her children and never see[s] her children. And that is clearly demonstrated from the past behavior from Mr. Nnoli and what’s happened in this case. Mr. Nnoli now says in February of 1992 and July 1992 he went to Nigeria to try to retrieve the children to comply with this Court’s order. That’s just a complete fabrication.

That’s not true. The fact is at that time they were trying to get custody in the Nigerian courts. To suggest that Daniel Mahone was trying to get him to comply with this Court’s order just is inconsistent with the actions of Daniel Mahone in this Court, where he tried to urge almost contemptuously the Nigerian law and that this Court had no jurisdiction. Of course, as counsel points out, previous noncompliance does not make for a continued civil contempt.

Let me make one observation. With respect to the law book standard of proof in this case, whether it’s the preponderance of the evidence, clear and convincing, or beyond a reasonable doubt, I am not going to hold somebody in jail unless I am thoroughly convinced that they’re in contempt, and [my] standard is going to be a standard beyond a reasonable doubt. [2] ²⁴⁹ In this case, I’d give Mr. Heeney a lot of credit. He’s made great efforts to try to get these children back, and certainly his good faith is not in issue. The question is Mr. Nnoli’s good faith.

In the Court’s opinion, he’s lied about what’s happened in the past and he’s lying about what’s happening right now. [Emphasis added.] At one point in the July 13 proceedings before Judge Ryan, where no testimony was heard but the court merely reviewed the prior proceedings, Judge Ryan said, “This man is a liar, outright liar. He hasn’t told the truth totally about anything.” At the conclusion of the case, he said: Well, having reviewed the record in this case, I find that Judge Miller had sufficient facts in the record to support his decision and finding that the defendant, or Mr. Nnoli, was in contempt of Court for not complying to the previous order of the Court; that he was in contempt, because he had had the ability to comply, but willfully and deliberately did not comply, and thereby was found in contempt [of] Court. I find that Judge Miller had sufficient findings at the time of finding Mr. Nnoli in contempt of Court to find that he had the present ability to purge himself and he took away the freedom of Mr. Nnoli until he did in fact purge himself, which he then had the present ability to do. I find now that Mr. Nnoli, through basically efforts of Mr. Heeney and some on his own, has attempted to purge himself of his contempt, and I find that his efforts through his attorney are in good faith, and I find that he’s been unable to purge himself of the contempt, and I find that he no longer has the present ability to purge himself of the contempt, so I’ll order that he be released from confinement. ²⁵⁰ II.

On the morning of argument, we were informed that Mr. Nnoli had been adjudged a bankrupt the previous day and that he was claiming an automatic stay. The autoriiatic stay provision in the U.S.Code is 11 U.S.C. § 362 . Subsection (a) of § 362 provides in part: Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970 ... operates as a stay, applicable to all entities, of— (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.... Subsection (b)(2) provides that the automatic stay does not apply to the “collection of alimony, maintenance, or support from property that is not property of the estate.... ” Subsection (b) also provides' certain exceptions when the action involves a government entity.

Subsection (b) does not otherwise prevent the automatic stay from applying to civil actions that do not involve government entities when the debtor’s property is not involved. The effect of the automatic stay on a pending suit in another court is to suspend that suit; it does not cause that suit to be dismissed. David v. Hooker, Ltd., 560 F.2d 412, 418 (9th Cir.1977). Further, the stay does not necessarily suspend every aspect of the pending suit.

Id. One aspect of a pending suit that an automatic stay will not suspend is a contempt proceeding, provided that the contempt proceeding is to protect the dignity of the court. Id. See also Stovall v. Stovall, 126 B.R. 814, 815 (N.D.Ga.1990); US Sprint Communications Co. v. Buscher, 89 B.R. 154, 156 (D.Kan.1988).

The language used by the court in U.S. Sprint is instructive. ²⁵¹ While the issue before the court is not whether a civil contempt judgment would be dischargeable, as was the case in [In re ] Marini, [ 28 B.R. 262 (Bankr.E.D.N.Y.1983,]; [In re ] Gedeon, [ 31 B.R. 942 (Bankr.D.Colo.1983) ], and [In re ] Corbly, [ 61 B.R. 851 (Bankr.D.S.D.1986) ], the court finds the reasoning in those cases persuasive. The current Bankruptcy Code does not directly address the court’s concern: whether a bankrupt may be sentenced on a civil contempt citation after he has violated direct orders of the court. At first glance, § 362(a)(1) does seem to stay this court’s sentencing power because it halts any judicial proceeding. But this is not just any judicial proceeding.

This court has already determined that defendant violated two direct orders of this court. It is within this court’s inherent power to take whatever steps necessary to ensure those persons within its power comply with its orders. The court cannot conceive that Congress intended to strip the court of this power, and instead permit a party to blatantly violate direct orders of the court and then seek shelter from a bankruptcy judge. If this were so, the court’s orders could be rendered almost meaningless.

The court must retain the ability to compel compliance with its orders; a party seeking relief from his creditors is not free to run rampant in flagrant disregard of the powers of the court. A civil contempt judgment is one effective method of coercing compliance and of “upholding the dignity of the court.” Id. at 156 (footnote omitted). We conclude that, under the reasoning of U.S. Sprint, Emmanuel Nnoli is not entitled to any stay at this time.

III

As we have previously indicated, in the habeas corpus action, Mrs. Nnoli was named as the party defendant. So far as we know, the uniform, but unwritten, practice in this State for generations has been to name as the party defendant the person allegedly depriving the petitioner of his liberty, the custodian. Accordingly, questions arose in our mind as to ²⁵² whether the proceeding was even properly brought. 39A C.J.S. Habeas Corpus §. 164(b) (1976) states: “The person in whose custody a prisoner is, and who has power to produce him physically, is the person against whom the writ should be sued out....” (Footnotes omitted.) Habeas Corpus law in Maryland is governed by Maryland Rules Z40 et seq. Specifically, Md. Rule Z42(a), “Application—Form and Content,” provides: In General.

An application, in all cases, shall state: (1) That the person in whose behalf the writ is applied for is confined or restrained in his liberty. (2) The place where such person is so confined or restrained, if known. (3) The name and official capacity, if any, of the person by whom he is so confined or restrained, if known, and if not, a description sufficient to enable identification of the person. All of this was done.

There is no provision in the Maryland Rules explicitly requiring the habeas corpus petitioner to name the person by whom he or she is confined as the respondent. The Rules only require that the petitioner’s custodian must be named in the petition. Also, there does not appear to be any decision by a Maryland court determining when a party has standing to object to a petition for habeas corpus. The standing of a party, other than the party confining the petitioner, to oppose a petition for habeas corpus has been discussed in several foreign jurisdictions.

The Missouri Supreme Court addressed the issue in a civil contempt proceeding in Ex parte Brockman, 233 Mo. 135 , 134 S.W. 977 (1911). The petitioner, Brockman, was determined to be in contempt for failing to give a deposition and ordered to be imprisoned until he gave the deposition. The parties who had filed suit against Brockman and attempted to depose him appeared in opposition to his petition for habeas corpus and his appeal of ²⁵³ the denial of his petition. Brockman objected to their participation in the habeas corpus action.

The court responded: Below, as here, petitioner’s counsel unavailingly objected to such appearance and now invites a ruling thereon. Cui bono? But waiving the view implied by that question, it is clear that appearance was either of grace or of right. On such premise we rule: (1) If such appearance was as amici curiae, and as a matter of grace, then that grace alone concerns us.

Grace doth not abound through consent of one’s adversary. It droppeth, withal, like mercy—as the gentle and refreshing dews of Heaven. It goeth where it listeth. (2) If that appearance below or here is because plaintiffs in the original suit are interested of right in this proceeding as auxiliary to and in aid of the principal suit (and counsel plant it on that theory), we can see no objection to it in reason.

Fiat lux is a motto of universal and wholesome use. Commissioner Shields moved in the premises at the instance of the plaintiffs. They were interested then. When did that interest cease?

Furthermore, over the objection of petitioner, made orally at our bar, we permitted such counsel to argue against petitioner’s discharge and file briefs. For good or ill, the thing is done. How could we now, by any psychological twist known to man, wring from our minds the effect of that argument and those briefs? Yet nothing less than that impossible thing would benefit petitioner a whit.

The incident must be taken as closed. Id. 134 S.W., at 982 . The Arkansas Supreme Court held that when a party is imprisoned on criminal contempt charges, the opposing party in the underlying civil action had no interest in, and no standing to oppose, the petitioner’s habeas corpus action; the court, however, did indicate that such an interest might exist if the contempt were civil in nature in Ex parte Boles, 88 Ark. 388 , 114 S.W. 918 (1908). Specifically, the court stated: In this case the proceedings sought to be quashed were instituted for the purpose of relieving Kelley of imprisonment imposed upon him as a punishment for contempt, the ²⁵⁴ term of which was fixed at five days.

The attachment and commitment of Kelley were a criminal proceeding.... There was no condition that he should be relieved on production of the ballots. There was nothing in the proceeding of a civil nature which formed any basis for Boles to claim the right to be heard. The habeas corpus proceeding involved the liberty of Kelley, and in that Boles had no interest which made it admissible to make him a party.

Id. 114 S.W., at 919 . The issue has also been addressed by several federal courts. If a petition for habeas corpus is filed in federal courts, there is a requirement that the petitioner name his or her custodian as the respondent. 1 James S. Liebman, Federal Habeas Corpus Practice and Procedure § 10.1 (1990). See also Katz v. King, 627 F.2d 568 , 573 n. 5 (1st Cir.1980) (“Because this is a habeas corpus proceeding, the defendants in the civil action are not proper parties.

The matter [a habeas corpus proceeding to determine the validity of criminal contempt charges] is now a dispute between [petitioner] and the Commonwealth of Massachusetts.”) Nevertheless, other parties may still have standing to oppose the petition; a party’s standing to oppose a federal habeas corpus petition is determined by the federal intervention rule, Rule 24. See Trigg v. Moseley, 433 F.2d 364 (10th Cir.1970); State of Arizona v. Hunt, 408 F.2d 1086 , cert. denied, 396 U.S. 845 , 90 S.Ct. 81 , 24 L.Ed.2d 95 (6th Cir.1969); Mir v. Smith, 521 F.Supp. 446 (N.D.Ga.1981). The Maryland Rule for intervention, Rule 2-214, is substantially similar to Federal Rule 24. Maryland Radiological Society, Inc. v. Health Services Cost Review Comm’n, 285 Md. 383 , 388 n. 5, 402 A.2d 907 (1979) (“In the absence of Maryland authority, the similarity of Maryland Rule 208 [now Maryland Rule 2-214] and Federal Rule 24 makes the decisions of the federal courts interpreting their rule of considerable precedental value in construing our rule.”); Citizens Coordinating Committee on Friendship Heights, Inc. v. TKU Assocs., 276 Md. 705, 712 , 351 A.2d 133 (1976).

Thus, if Nina had not been ²⁵⁵ named as the respondent on Emmanuel’s petition for habeas corpus, her standing would be determined by whether she could intervene under Maryland Rule 2-214. As no Maryland appellate court has addressed when a party may intervene in a habeas corpus proceeding, the federal cases serve as persuasive authority on this