Redmond v. Redmond

PAUL E. ALPERT, Judge, Retired, Specially Assigned. Appellee, Sandra C. Redmond (“Mrs. Redmond”), filed a petition in the Circuit Court for Anne Arundel County seeking to hold appellant, Thomas W. Redmond (“Mr. Redmond”), in civil contempt for his alleged failure to comply with the terms of a divorce judgment (i.e., to refinance certain loans on real property). After a hearing, the court found Mr. Redmond in contempt of court, and sentenced him to 90 days in jail; the court also ordered that the jail term be suspended, and allowed Mr. Redmond until September 15, 1997 to purge himself of the contempt by complying with the divorce judgment. ⁴⁰⁹ Mr. Redmond filed a timely notice of appeal. He also made an attempt to comply with the divorce judgment, but his efforts were complicated by a bankruptcy petition he had filed prior to the contempt hearing.

Eventually, this Court stayed Mr. Redmond’s sentence pending disposition of this appeal. For the reasons set forth below, we will reverse the judgment of the circuit court, and remand the case for further proceedings. ISSUES Mr. Redmond raises six issues, which we reorder and rephrase: I. Whether Mr. Redmond’s failures under the divorce judgment are punishable by imprisonment.

II

Whether the contempt proceedings violated Mr. Redmond’s right to the assistance of counsel.

III

Whether the contempt proceedings were conducted in violation of various provisions of Rule 15-206?

IV

Whether Mr. Redmond’s violation of a property settlement agreement was punishable by contempt given the fact that he was in violation of the agreement at the time it was incorporated into a divorce decree? V. Whether the contempt proceedings below were conducted in violation of the automatic stay provided by 11 U.S.C. § 362 ?

VI

Whether the circuit court erred when it found that Mr. Redmond had a present ability to comply with the purge provisions of the contempt order? FACTS This case involves Mr. Redmond’s failure to comply with the terms of a divorce judgment dated March 4, 1988. That judgment incorporated the terms of a property settlement agreement executed by Mr. and Mrs. Redmond on March 25, 1987. The agreement contained a provision that reads as follows: ⁴¹⁰ The Wife covenants and agrees that she will grant and convey all of her right, title and interest in and to all of the other aforesaid properties to the Husband.

The Husband further agrees that he will re-finance those loans for the aforesaid properties on which Wife is obligated, removing the Wife’s name from any outstanding mortgages thereon, within four (4) months of the date of this Agreement, and that the Husband will indemnify and hold harmless the Wife from any claims arising therefrom. Upon the re-financing, the Wife will execute such Deed or other assurances as may be necessary to carry out and give effect to the foregoing provisions of this Paragraph. One of the properties covered by this provision is located at 3503 Canal Street in Ocean City. Mr. Redmond failed to refinance the loan on that property, and Mrs. Redmond remained liable for that loan.

On May 27, 1997, Mrs. Redmond filed a petition in the Circuit Court for Anne Arundel County seeking to hold Mr. Redmond in contempt for his failure to refinance the loan on the Ocean City property. In response to that petition, the court issued a show cause order, which reads as follows: SHOW CAUSE ORDER On the foregoing Petition it is ORDERED by the Circuit Court for Anne Arundel County, this 30th day of May, 1997, that the Respondant [sic], THOMAS W. REDMOND, show cause on or before the 27th day of June, 1997, why he should not be found in contempt as above set forth, provided a copy of the above Petition and of this Order be served on the Defendant on or before the 13[sic] day of June, 1997. That order contains a handwritten note at the bottom which reads, “HEARING DATE: July 11,1997 at 9:30 a.m.” According to an affidavit of service that was later made a part of the record of this case, Mr. Redmond was served with the show cause order on June 16, 1997. Nevertheless, when the hearing was called on July 11, Mr. Redmond did not appear. ⁴¹¹ In response to Mr. Redmond’s absence, the court issued, on July 11, a second show cause order, which reads: SHOW CAUSE ORDER On the foregoing Petition, it is, ORDERED, this 11th day of July, 1997, that the Defendant must personally appear on the 24th day of July, 1997, at 8:45 a.m. to show cause, if any he may have, as to why he should not be found in contempt as above set forth, provided a copy of the Petition and this Order be served on the Defendant on or before the 18th day of July, 1997.

The Defendant must appear at the hearing. He is warned that his failure to appear may result in a body attachment. Mr. Redmond was served with this order on July 16, 1997. At the July 24 hearing, Mr. Redmond appeared pro se, and immediately asked for a continuance.

He told the court that he had not been served with either show cause order until July 16, and was therefore unable to secure the services of his regular attorney (who was then engaged in a jury trial elsewhere); he also told the court that the previous day, he had filed for bankruptcy. The court denied the continuance, citing the affidavit of service which showed that Mr. Redmond had been served with the initial show cause order on June 16. The court then heard testimony from Mrs. Redmond; and when Mr. Redmond declined to testify, the court found him in civil contempt of court, and scheduled another hearing for July 31, 1997 to determine appropriate sanctions. On July 31, Mr. Redmond filed two pleadings: 1) a motion to reconsider the contempt finding; and 2) a notice of bankruptcy and motion to stay the proceedings.

At the hearing, the circuit court denied both the motion to reconsider and the motion to stay. Counsel for Mrs. Redmond then asked, for the first time, that the court imprison Mr. Redmond to compel his compliance with the contempt order; and the court complied with that request, issuing the following order: ⁴¹² ORDER OF COURT The above-captioned cause having come on for hearing on [Mrs. Redmond’s] Petition for Contempt and [Mr. Redmond’s] Motion to Reconsider Judgment of Contempt, the parties having appeared with counsel and the Court having heard testimony, received exhibits and heard argument of counsel, it is this 7th day of August, 1997, by the Circuit Court for Anne Arundel County, ORDERED, that thé Plaintiff, THOMAS W. REDMOND, is hereby found to be in contempt of Court and the sentence of the Court is ninety (90) days to the Anne Arundel County Detention Center, in accordance with the power of this Court under Family Law Article 8-105, with said sentence to be suspended, conditioned on and provided that the Plaintiff, THOMAS W. REDMOND, shall have until September 15, 1997 to purge himself of contempt by complying with the parties’ prior Agreement and Judgment of Divorce by removing the Defendant’s name from any outstanding mortgage obligations on all properties referred to in Paragraph 6 of their aforesaid Agreement; and IT IS FURTHER ORDERED, that the Defendant’s request for the award of Court costs and counsel fee is hereby held sub curia, pending final disposition of this matter. Mr. Redmond ultimately obtained a stay of his incarceration from this Court pending the disposition of this appeal. DISCUSSION I. Imprisonment as a Sanction Again, the provision of the property settlement agreement relevant to the disposition of this case reads: The Wife covenants and agrees that she will grant and convey all of her right, title and interest in and to all of the other aforesaid properties to the Husband.

The Husband further agrees that he will re-finance those loans for the aforesaid properties on which Wife is obligated, removing the Wife’s name from any outstanding mortgages thereon, ⁴¹³ within four (4) months of the date of this Agreement, and that the Husband will indemnify and hold the Wife from any claims arising therefrom. Upon the re-financing, the Wife will execute such Deed or other assurances as may be necessary to carry out and give effect to the foregoing provisions of this Paragraph. This provision requires Mr. Redmond, in exchange for a conveyance by Mrs. Redmond of her interest in the subject properties, to refinance the loans on those properties so that Mrs. Redmond is no longer obligated to pay those loans. It is undisputed that Mr. Redmond never refinanced the loan on property located at 3503 Canal Street in Ocean City, even though Mrs. Redmond, as required by the agreement, conveyed her interest in that property to Mr. Redmond.

Accordingly, the circuit court held him in civil contempt. Mr. Redmond argues that imprisonment for his failure to refinance the loan is improper because of Article III, § 38 of the Maryland Constitution, which reads as follows: No person shall be imprisoned for debt, but a valid decree of a court of competent jurisdiction or agreement approved by decree of said court for the support of a spouse or dependent children, or for the support of an illegitimate child or children, or for alimony (either common law or as defined by statute), shall not constitute a debt within the meaning of this section. According to Mr. Redmond, § 38 precludes his imprisonment because his obligation to refinance the loan was a “debt” within the meaning of § 38. We disagree.

To address Mr. Redmond’s argument properly, we must interpret the scope of the term “debt.” Before doing so, however, it is useful to review some of the principles applicable to interpretation of constitutional provisions. In interpreting a constitutional provision, our task is to effectuate the intent of its framers; and “such intent is first sought from the terminology used in the provision, with each word being given its ordinary and popularly understood meaningU” Brown v. Brown, 287 Md. 273, 277-78 , 412 A.2d 396 (1980). Further, if ⁴¹⁴ the words are not ambiguous, the inquiry is terminated, “for [we are] not at liberty to search beyond the Constitution itself where the intention of the framers is clearly demonstrated by the phraseology utilized.” Id. at 278 , 412 A.2d 396 . Only “[i]f an examination of the language ... demonstrates ambiguity or uncertainty ... [do] we look elsewhere to learn the provision’s meaning, keeping in mind the necessity of ascertaining the purpose sought to be accomplished by enactment of the provision.” Id.

In light of these principles, it is clear to us that a debt within the meaning of § 38 involves only those obligations that require the payment of money. This is so for two reasons. First, the ordinary meaning of debt, at least in a legal sense, is an obligation to pay money. See Black’s Law Dictionary 403 (6th ed. 1990) (Defining “debt,” in part, as “[a] sum of money due by certain and express agreement ]”).

Second, it has long been understood that § 38 was inserted in the Maryland Constitution to protect people who owe money from going to jail for that reason. See Brown, 287 Md. at 279-80 , 412 A.2d 396 . (“The evident purpose of the framers [of § 38] was to abolish the useless, and sometimes cruel, imprisonment of persons who, having honestly become indebted to another, were unable to pay as promised[ ]”; also discussing, generally, the history of § 38). The fact that a “debt” within the meaning of § 38 encompasses only those obligations that require payment of money is important here, because Mr. Redmond’s obligation to refinance the loan was not one that directly required the payment of money.

Essentially, what the refinancing required was that Mr. Redmond obtain a second loan — one on which he was the only obligor — to pay off the first loan on the property (on which both he and Mrs. Redmond were obligors); by obtaining the second loan, Mr. Redmond would have become the only person legally obligated to pay for the property. Thus, under the settlement agreement, Mr. Redmond was required to assume a monetary obligation, and not to pay money directly; and for that reason, § 38 of the Maryland Constitu ⁴¹⁵ tion does not prohibit Mr. Redmond’s incarceration for his failure to refinance the applicable loan, absent a good faith attempt and the financial inability to do so.

II

Assistance of Counsel Mr. Redmond also argues that the proceedings below violated his right to counsel. We agree. By now it has been firmly established that a defendant in a civil contempt proceeding has a right to counsel where there is a possibility of imprisonment. See Rutherford v. Rutherford, 296 Md. 347, 357-63 , 464 A.2d 228 (1983) (Holding that “an indigent defendant in a civil contempt proceeding cannot be sentenced to actual incarceration unless counsel has been appointed to represent him or he has waived the right to counsel.”).

Further, this right applies at every stage of such a contempt proceeding. Therefore, a civil contempt proceeding where there is a possibility of incarceration cannot be prosecuted unless the defendant has been afforded a lawyer, or has knowingly and intelligently waived his right to one. Id. Because a defendant in a civil contempt proceeding where there is a possibility of incarceration has a right to counsel, this Court has held that Rule 4-215 applies to civil contempt proceedings.

Jones v. Johnson, 73 Md.App. 663, 667-68 , 536 A.2d 116 (1988). Rule 4-215, which implements constitutional mandates with respect to waiver of counsel, See Fowlkes v. State, 311 Md. 586, 609 , 586 A.2d 1149 (1988), outlines the procedures a court must follow before it allows a defendant in a criminal case to proceed pro se. 1 ⁴¹⁶ Apparently recognizing the awkwardness of using a rule designed primarily for criminal proceedings in a civil case, the Court of Appeals, in 1996, enacted Rule 15-206(e), which essentially tailors the requirements of Rule 4-215 to civil contempt proceedings. It is clear that, like Rule 4r-215, Rule ⁴¹⁷ 15-206(e) implements constitutional mandates. It provides, in relevant part: (e) Waiver of counsel if incarceration is sought.

(1) Applicability. This section applies if incarceration to compel compliance is sought. (2) Appearance in court without counsel. (A) If the alleged contemnor appears in court pursuant to the order without counsel, the court shall make certain that the alleged contemnor has received a copy of the order containing notice of the right to counsel; (B) If the alleged contemnor indicates a desire to waive counsel, the court shall determine, after an examination of the alleged contemnor on the record, that the waiver is knowing and voluntary; (C) If the alleged contemnor indicates a desire to have counsel and the court finds that the alleged contemnor received a copy of the order containing notice of the right to counsel, the court shall permit the alleged contemnor to explain the appearance without counsel.

If the court finds that there is a meritorious reason for the alleged contemnor’s appearance without counsel, the court shall continue the action to a later time and advise the alleged contemnor that if counsel does not enter an appearance by that time, the action will proceed with the alleged contemnor unrepresented by counsel. If the court finds that there is no meritorious reason for the alleged contemnor’s appearance without counsel, the court may determine that the alleged contemnor has waived counsel by failing or refusing to obtain counsel and may proceed with the hearing. Here, none of the requirements of Rule 15 — 206(e) were followed. For this reason, it is clear that Mr. Redmond never waived his right to counsel, and that the contempt proceedings were therefore conducted in violation of that right.

Accordingly, the circuit court’s contempt judgment must be reversed, and the case remanded for an entirely new proceeding. ⁴¹⁸ III. Violation of Rule 15-206(c) Rule 15-206 provides, in relevant part: Rule 15-206. Constructive civil contempt. (a) Where filed.

A proceeding for constructive civil contempt shall be included in the action in which the alleged contempt occurred. (b) Who may initiate. (1) The court may initiate a proceeding for constructive civil contempt by filing an order complying with the requirements of section (c) of this Rule. (2) Any party to an action in which an alleged contempt occurred and, upon request by the court, the Attorney General, may initiate a proceeding for constructive civil contempt by filing a petition with the court against which the contempt was allegedly committed.

(3) In a support enforcement action where the alleged contempt is based on failure to pay spousal or child support, any agency authorized by law may bring the proceeding. (c) Content of order or petition. (1) An order filed by the court pursuant to section (b)(1) of this Rule and a petition filed pursuant to section (b)(2) shall comply with Rule 2-303 and, if incarceration to compel compliance with the court’s order is sought, shall so state. (2) Unless the court finds that a petition for contempt is frivolous on its face, the court shall enter an order.

That order, and any order entered by the court on its own initiative, shall state: (A) the time within which any answer by the alleged contemnor shall be filed, which, absent good cause, may not be less than ten days after service of the order; (B) the time and