Redden v. Department of Social Services

DAVIS, Judge. Appellant Eugene Anthony Redden, Sr., was ordered to pay child support for his minor children in two separate cases. Appellant failed to meet his child support obligations and, in December 1999, the children’s mothers, Karen R. Redden and Felicia Rowena Gaines, and the Maryland State Department of Social Services (collectively, “appellees”) filed a petition in each case for contempt. On August 14, 2000, a combined hearing in both cases in the Circuit Court for Baltimore County was held and appellant was found in contempt.

The court ordered appellant to make regular support payments and make good a bad check, set a contempt purge of $1,000, and scheduled another hearing for November 15, 2000. On that date, the court sentenced appellant to two concurrent prison terms of five months, with work release recommended. Appellant timely appealed from this judgment. Appellant does not contest the finding of contempt, but presents one issue for our review, 1 which we separate into two component issues: I. Did the court err in holding appellant on a body attachment from June 26, 2000 until his hearing on August 14, 2000? ⁷⁰ II.

Did the trial court err in sentencing appellant to incarceration? We answer both questions in the affirmative. Therefore, we shall affirm the finding of contempt but otherwise reverse the judgment of the lower court. FACTUAL BACKGROUND Appellant was married to Karen R. Redden (“Redden”) on March 6,1981.

The marriage ended in divorce on February 9, 1987. Appellant and Redden had two children together: Eugene A. Redden, Jr., born February 20, 1981, and Keirsten B. Redden, born December 2, 1983. By consent order entered November 16, 1982, appellant was obligated to pay child support. Appellant failed to meet this obligation and, on December 7,1999, Redden applied for contempt.

Appellant also fathered a child by Belinda Rowena Gaines. Kyiesha Martika Redden was born September 2, 1986 and Gaines filed a paternity suit on January 29, 1987. Appellant was adjudged to be Kyiesha’s father on May 7, 1987 and ordered to pay child support by an order entered on December 16, 1987. Appellant failed to meet this obligation as well and, on December 10, 1999, Gaines filed a petition for contempt.

The court issued a show cause order in each case, setting a hearing for January 19, 2000. When appellant failed to appear for this hearing, the court ordered in each case that a writ of body attachment for appellant be issued. The order in the Redden case, filed on June 5, 2000, provided that appellant be released upon his posting of a bond or payment of arrear-age, both in the amount of $3,110 in cash. The order in the Gaines case was identical save for the bond and arrearage amounts, which were $1,084.28.

Appellant was taken into custody on June 26, 2000 on both body attachments. When appellant appeared before the Circuit Court for Baltimore County the same day, the court set bail at $3,110 in the Redden case and at $1,084.28 in the Gaines case. The court remanded appellant to the Baltimore County Detention Cen ⁷¹ ter, where he was held in custody until the hearing on August 14, 2000. A hearing in both cases was held on August 14, 2000.

Appellant admitted through counsel to being in contempt. Counsel for the Department of Social Services (DSS) proffered that, as to Redden’s case, appellant was obligated to pay $50 in support and $30 in arrearages, both semi-monthly. Arrearages as of July 30, 2000 were $1,184.28. Appellant had made no payments in 2000 and only four payments in 1999.

With respect to Gaines’s case, appellant was obligated to pay weekly $30 in support and $20 in arrearages. Arrearages were $3,370.82 as of August 9, 2000. The last payment made by appellant in that case was $150 on June 9, 1999. Appellant paid $400 on January 24, 2000 with a “bad check”; he took no exception to this proffer.

Appellant’s counsel proffered that appellant had been incarcerated for driving while intoxicated from March 16 to June 24, 2000. From June 26, 2000, to the date of the current hearing, he was incarcerated on the body attachment in the present case. He was paying an $865 monthly mortgage on his home in Aberdeen and was supporting a thirteen-year-old son. 2 Appellant had applied for several jobs before he was incarcerated, but was unable to attend the interviews. It appears that appellant had not been employed since the fourth quarter of 1999.

The court found appellant in civil contempt and ordered him to pay the existing periodic child support in each case. It set a hearing for November 15, 2000, by which time it wanted “to see some lump sum payment towards those arrears ..., preferably in the amount of $1000.” Based on a statement by appellant that the bad check was actually in the amount of $800, the court also ordered appellee to “address” the $800 he owed DSS. At the hearing on November 15, 2000, appellant admitted that he had made no payments since the last hearing. He had ⁷² lost his home to foreclosure, was staying with Mends, and was receiving governmental rent assistance, food stamps, and prescription assistance.

Appellant stated that he had had several job interviews for “upper management level” positions, but had not been called for second interviews. No one would hire him for “smaller jobs” because he had three years of college credit and employers were afraid he would be unsatisfied. Appellant’s counsel proffered that appellant “does not have any assets from which he could satisfy any purge.” The court found appellant in civil contempt and sentenced him to two concurrent terms of five months in the Baltimore County Detention Center. The court recommended work release and set the purge amount at $500 in each case.

LEGAL DISCUSSION I Appellant first contends that the lower court erred in holding him on a body attachment from June 26, 2000 until his hearing on August 14, 2000. The body attachment was issued after he missed the March 16, 2000 hearing while incarcerated on an unrelated criminal charge. He argues that this procedure violated both due process and Maryland Rule 15-207 (2001), which governs civil contempt proceedings. The DSS argues that this issue is not preserved for our review.

There is indeed no indication in the record that appellant’s detention was ever challenged. Moreover, because there is no transcript of the June 26, 2000 bond hearing, it is unclear whether the court was informed at that stage that appellant had missed the hearing due to his incarceration. Nevertheless, we shall address this issue and find the procedure to be in violation of Md. Rule 15-207 (2001). Maryland Rule 8-131(a) (2001), in pertinent part, provides: Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may ⁷³ decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.

As the Court of Appeals stated in Office of the Governor v. Washington Post Co., 360 Md. 520 , 759 A.2d 249 (2000), however, “because the second sentence of the above-quoted rule begins with the word ‘[o]rdinarily,’ both the Court of Special Appeals and this Court each have independent discretion to excuse the failure of a party to preserve an issue for appellate review.” Id. at 532 n. 5, 759 A.2d 249 (internal quotation omitted). In the case sub judice, we find appellant’s pre-hearing incarceration troubling and we therefore exercise our discretion to address this issue despite its non-preservation. We turn now to the proper construction of Md. Rule 15-207. When construing the Maryland rules, we follow a procedure similar to that used when construing a statute.

Holmes v. State, 350 Md. 412, 422 , 712 A.2d 554 (1998). First, we must examine the words of the rule, giving them their ordinary and natural meaning. Where the language of the rule is clear and unambiguous, our analysis ends---The ultimate goal of this Court is to give the rule a reasonable interpretation in tune with logic and common sense. Id.

(citations and internal quotations omitted). Maryland Rule 15-207 mandates the procedure to be followed in a civil contempt hearing. Subsection (c)(2) provides: If the alleged contemnor fails to appear personally at the time and place set by the court, the court may enter an order directing a sheriff or other peace officer to take custody of and bring the alleged contemnor before the court or judge designated in the order. If the alleged contemnor in a civil contempt proceeding fails to appear in person or by counsel at the time and place set by the court, the court may proceed ex parte.

This subsection gives the court two options when an alleged civil contemnor fails to appear before it. The court may either ⁷⁴ “enter an order directing a sheriff ... to take custody of and bring the alleged contemnor before the court,” known as a “body attachment,” see Md. Rule l-202(c) (2001), or “proceed ex parte.” Md. Rule 15-207(c)(2) (2001). Subsection (e) focuses specifically on child or spousal support enforcement actions and provides that the alleged con-temnor may be found in contempt upon a showing by clear and convincing evidence that he or she has not paid the amount owed. Id. at 15-207(e)(2) (2001).

If the court makes a finding of contempt, it must issue an order specifying the amount of