Reed v. Foley

MURPHY, Judge. These appeals from the Circuit Court for Carroll County present a challenge to that court’s procedures for collecting overdue child support payments. Appellants Scott Carle Craig and Ronald Lee Reed have framed two questions for our review: I. Whether the procedures followed in the court below violated appellant’s right to due process of law and the assistance of counsel as well as the Maryland Rules.

II

Whether the court below erred in ordering appellant’s incarceration and conditioning his release upon the payment of (the amount alleged to be overdue) 1 where there was no showing of past or present contempt nor that he had the present ability to pay. In support of the procedure at issue, appellees, Martha A. Glass and Delores L. Foley present the following question: I. Did the trial court properly find that appellant failed to make child support payments and properly issue a body attachment and impose a bond to be applied towards appellant’s child support arrearage? ¹⁸⁷ Factual Background (1) The Craig case: Craig is the father of Glass’ child. When Glass began to receive public assistance she assigned her claim for child support to the Carroll County Department of Social Services. At the request of that agency, the Bureau of Support Enforcement, represented by the Carroll County State’s Attorney’s Office, initiated support payment proceedings.

On December 17, 1987, Craig signed a consent order in which he agreed to pay a biweekly sum of $25.00 for “support and maintenance” of his son. In a Complaint for Contempt and Incarceration, filed on February 12, 1991, it was alleged that 2. That [appellant], has failed and refused to pay said sum, and there is now due [appellee] by [appellant] the sum of $2940.74 as of January 4, 1991, which the [appellant] refuses to pay though fully able to pay the same. 3. That [appellant] did not report any changes in employment or a residence within ten (10) days to the Court or to the Bureau of Support Enforcement as stated in Paragraph # 3 of the Court Order dated the 6th day of January 1987.

The [appellant] has subjected himself to a $250.00 fíne. The “WHEREFORE” clause of this complaint requested that: 1) [Appellant] be attached for Contempt of this Honorable Court in not obeying the Order of Court aforesaid, 2) The Court incarcerate the [appellant] for Contempt, and 3) The Court issue an Earnings Withholding Order. On February 28,1991, the court entered a show cause order requiring that ... [Appellant] be and appear in this Court on the 22nd day of May, 1991 ... and show cause, if any he ... may have, why he ... should not be attached for contempt as above set forth, and why the relief prayed should not be granted.... ¹⁸⁸ That order mentioned nothing about appellant’s right to counsel. It did, however, contain the following advice: PLEASE NOTE: IF YOU ARE REPRESENTED BY COUNSEL, YOU MAY APPEAR ONE HOUR LATER.

IF YOU WISH TO DISCUSS THE CASE PRIOR TO THE HEARING, YOU MAY CONTACT THE STATES’S ATTORNEY’S OFFICE. On June 3, 1991, Craig signed a consent order that stated: That should [appellant] fail to make five regularly scheduled payments, when due, as ordered, [appellant] will be subject to having a Body Attachment issued for his ... arrest, upon notice to [appellant] by mail, at his ... last known address, that [appellant] has failed to make said payments and that a hearing will be held on a given specific date for the purpose of requesting said Body Attachment, (emphasis in original). Craig appeared pro se at a May 27, 1992, “review hearing,” held before a master who did not ask Craig why he was unrepresented. At the conclusion of the hearing, the master made the following findings and recommendations: The [appellant] was to make a lump sum payment of $550.00 not later than 5/27/92 ...

Payments were received on 5/21/92 $50.00; 5/13/92 $175.00 ... Other findings: On 1/22/92 arrearage was $3060.74 so it has been reduced. He is still $625.00 higher than he should be. There is a pending payment by wage hen of $137.00 ... [Appellant was] fired on 5/26/92 after an altercation with his girlfriend, he will apply for unemployment today. [Appellant is] ordered to pay child support in the amount of $25.00 per week. [It is recommended that appellant] be ordered to make payments toward the arrearage of $2685.74....

Review Hearing to be held on 10/28/92. The October 28, 1992 review hearing proceeded in the same fashion. Craig appeared pro se. He was not advised of his ¹⁸⁹ right to counsel.

The master made written findings and recommendations that stated in pertinent part: The arrearage as of the date of this hearing is $2961.74 which is $1451.00 higher than it should be to be in compliance. The [appellant] concurs with the arrearage amount. A wage lien is ordered; it will operate, because the [appellant] is now employed. The [appellant] was to make a lump sum payment of $625.00, not later than 10/15/92;- it was not paid.

Last payment was received on 10/20/92, in the amount of $50.00. There were three wage lien payments made in June and one in August. [It is recommended that appellant] continue to be ordered to pay current child support in the amount of $25.00 per week ... [and] continue under a missed payment provision; if [appellant] fails to make 4 regularly scheduled payments, [he] is subject to having a body attachment issued after being notified by mail at the last known address of a hearing to be held for purpose of requesting a body attachment ... On January 26, 1994, the Bureau of Support Enforcement filed a Complaint to Increase Child Support. On February 15, 1994, Craig was served with two summonses.

One summons advised him that, although he was not required to file a written response to the complaint, he was required to attend a hearing scheduled for April 13, 1994. The second summons, however, “COMMANDED” Craig to “personally appear and produce documents or objects” in the Circuit Court on April 13, 1994 at a 1:00 P.M. Master’s Hearing. Craig appeared pro se at the hearing. The master neither advised him of his right to counsel nor made a finding on the issue of his ability to pay.

The master did, however, recommend that a body attachment be issued for appellant with cash bond set in the amount of $650.00. ¹⁹⁰ On April 15, 1994, Craig through counsel, filed exceptions that included the following contentions: That the Court is without authority to imprison the [appellant] pursuant to the recommended Body Attachment for failing to pay child support without a finding that such failure amounted to contempt; and then, any order for imprisonment must contain a purging condition for which the [appellant] has the ability to comply.... [Appellant] is entitled to a lawful bond. A “nonrefundable bond” is not a bond as defined in Maryland Rule 4-217. Craig was represented by counsel at an August 19, 1994, exceptions hearing. 2 His counsel .did not challenge any factual findings, but argued that the collection procedure to which Craig had been subjected ... is a form of definite commitment.... There is no purging condition attached, which is required by law____ There is no finding ... that he has the ability to meet the purging condition. * * * Hs * * Your Honor, the Court is without authority to imprison someone on a finding by a Master that he missed payments ...

My chent’s going to jail without any contempt finding ... there’s no charge of contempt, much less a finding. Appellee’s counsel responded: The Complaint for Contempt was filed, originally, on February 11, 1991, in this case, and, in fact, the missed payment provision was in á Consent Order ... I really don’t think that this is unfair at all. We were just having him held accountable for the time in which he was able to work The court decided to “deny [appellant’s] exceptions ...” It signed the proposed Order for Body Attachment.

A Body Attachment was issued on August 22, 1994 and Craig was arrested two days later. Bond was posted on August 31,1994. ¹⁹¹ (2) The Reed case: Reed and Foley were once husband and wife. Subsequent to their divorce, Foley began to receive public assistance and assigned her claim for child support to the Carroll County Department of Social Services. At the request of that agency, the Bureau of Support Enforcement, represented by the Carroll County State’s Attorney’s Office, initiated support payment proceedings.

On December 17, 1990, Reed signed a consent order in which he agreed to pay a bi-weekly sum of $60.00 for “support and maintenance of’ his son. In a Complaint For Contempt And Incarceration, filed on December 17, 1991, it was alleged that ... [appellant] has failed and refused to pay said sum, and there is now due [appellee] by [appellant] the sum of $1050.00 as of September 13, 1991 which the [appellant] refuses to pay though fully able to pay the same. ... [appellant] did not report any changes in employment or a residence within ten (10) days to the Court or to the Bureau of Support Enforcement as stated in Paragraph # 3 of the Court Order dated the 11th day of December, 1990. The [appellant] has subjected himself to a $250.00 fine. The “WHEREFORE” clause of this complaint requested that: 1) [Appellant] be attached for Contempt of this Honorable Court in not obeying the Order of Court aforesaid, 2) The Court incarcerate the [appellant] for Contempt and, 3) The Court issue an Earning’s Withholding Order.

On January 8, 1992, the court entered a show cause order requiring that ... [appellant] be and appear in this court on the 20th day of May 1992 ... and show cause, if any he ... may have, why he ... should not be attached for contempt as above set forth, and why the relief prayed should not be granted That order mentioned nothing about Reed’s right to counsel. It did, however, contain the following advice: ¹⁹² PLEASE NOTE: IF YOU ARE REPRESENTED BY COUNSEL, YOU MAY APPEAR ONE HOUR LATER THAN THE TIME INDICATED ABOVE. IF YOU WISH TO DISCUSS THE CASE PRIOR TO THE HEARING, YOU MUST CONTACT THE NON SUPPORT UNIT OF THE STATES ATTORNEY’S OFFICE ... Reed attended the May 20, 1992 hearing, held before a master who did not ask him why he was appearing pro se.

At the conclusion of the hearing, the master made the following written factual findings and recommendations: The arrearage as of the date of this hearing is $2,100.00. There have only been 2 payments since Jan. 1991-$30.00 on 1/31/92 and $120.00 on 5/28/91. [Appellant] is unemployed; a letter from his atty ... confirms a work related injury from 1990---- He could have returned to his former job, but because of transportation problems, was terminated. He tried to work at McDonald’s but couldn’t lift boxes____ [It is recommended that appellant] be ordered to pay child, support for each child in the amount of $60.00 bi weekly ... [and] ordered to make payments towards the arrearage of $2,100.00 in the amount of $20.00 bi weekly ... (and) ordered to make a lump sum payment of $500.00 by 9/23/92.

Review Hearing to be held on 9/23/92 ... three missed payments will subject [appellant] to notice of body attachment hearing. Parties waived right to exceptions.... Reed attended the September 23, 1992 review hearing that was also held before the master, who included the following statement in his written findings and recommendations: ... [Appellant] claimed he started working on a farm earning $120.00 a week running farm equipment and doing farm work for other farmers. The [appellant] receives a $288.00 bi-weekly disability payment which may end in February of 1993. [Appellant is] ordered to make a lump sum payment of $1,180 by January 20, 1993____ Parties waived right to exceptions, and agree to entry of immediate order. ¹⁹³ The January 20, 1993 review hearing proceeded in the same fashion.

Reed appeared pro se. He was not advised of his right to counsel. The master made written findings and recommendations that stated in pertinent part: [Appellant is] ordered to make a lump sum payment of $1,000 by June 16, 1993 at which time a Review Hearing will be held at 9:00 am. The purpose of the hearing is to monitor the lump sum and [appellant’s] employment status.

Parties waived right to exceptions, and agree to entry of immediate