Sensabaugh v. Gorday

CATHELL, Judge. This appeal contests a master’s authority or jurisdiction to conduct a contempt proceeding which would result in a recommendation of contempt to the circuit court and a subsequent acceptance of that recommendation without another hearing before the circuit court. As we interpret former Maryland Rule 2-541(g)(3), we hold that it does not ³⁸¹ require the circuit court to conduct another hearing 1 before finding an individual in contempt of court based on a master’s recommendation. 2 We therefore affirm the decision of the lower court. The Facts The appellee, Jean Gorday, filed a petition to modify a divorce decree and to increase child support.

The summons, complaint, and supporting documents were forwarded to the Sheriff of Carroll County, Grover Sensabaugh (appellant). Unfortunately, an inexperienced deputy was assigned to serve the husband personally, which he failed to do properly. The deputy filed a return stating the summons was served on the husband even though he left it with the husband’s new wife. This error caused appellee to incur unnecessary expenses in order to appear at the scheduled hearing which was not attended by her former husband.

On June 19, 1990, the day scheduled for the domestic hearing, when the defendant-father failed to appear before the master, the master discovered that a fraudulent return had been filed by the sheriff’s department. His report to the circuit court recommended that a show cause order be issued against appellant to show why he should not be held in contempt. The circuit court, based on this report, initiated contempt proceedings against appellant by issuing the recommended show cause order. On November 13, 1990, the master held the show cause hearing pursuant to the circuit court’s order.

At this hearing, appellant appeared without counsel and admitted that the return was incorrect and that he knew of this error at least five days prior to the June 19th hearing. He testified that he had discovered the ³⁸² error after the husband’s attorney made inquiries and failed to notify the court because he believed the attorney would take care of the problem. She did not. After the show cause hearing, the master recommended that the sheriff be found in contempt.

Appellant filed exceptions to this report which were later dismissed by the Circuit Court of Carroll County for failure to provide a transcript as required by Maryland Rule 2-541(h)(2). The trial court then found appellant in contempt based upon the master’s recommendation. Appellant now seeks review of that decision. The questions presented by appellant include: I. Whether a master is authorized to conduct a contempt hearing on issues other than those authorized by Maryland Rule 2-541(b)(7)?

II

Whether the circuit court must hold a hearing prior to finding contempt? [3] Before addressing the contentions raised by appellant, we consider it necessary to comment on the nature of the remedy sought in this case. The Maryland Courts and Judicial Proceedings Article, section 2-304(c) (1989), provides that a sheriff may be held in contempt if he fails to file a return on a suit mailed to him for service in his county. Under the facts of the case ³⁸³ at bar, this section does not apply. Other provisions, sections 2-304, 2-305, 2-306, and 2-308(b), provide for penalties and remedies against a sheriff for the non-performance of certain duties.

None of these other sections provide for contempt as a sanction when a sheriff fails to perform his duties. Appellee argued below that a sheriff not only may be found in contempt for failure to file a proper return but that damages may be awarded citing, Main v. Lynch, 54 Md. 658 (1880), and relying as well on cases cited in Binney’s Case, 2 Bland 99, 101 n. (f) (1829). First, Main does not hold that a sheriff can be held in contempt for a bad return but that a sheriff must be permitted to amend such a return. 54 Md. at 669 .

The Court opined, as dicta, that a sheriff is answerable for neglect of duty including the filing of a false return, whether filed intentionally or unintentionally. Id. While the court opined that a sheriff can be held answerable, neither Main nor any authority of which we are aware holds that a sheriff who has not violated a court order nor disrupted proceedings can be held in contempt for misfeasance or malfeasance in the absence of a relevant statute. There is a reference in the body of the opinion of the High Court of Chancery in the matter of Binney’s Case that a sheriff may be ordered to bring in the “body” of a party and a footnote to that reference states: (f) Lee v. Sweetman, 1713. — Ordered, that an attachment of contempt issue against the sheriff for not returning his writs of attachment against the defendant.— Chancery Proceedings, lib.

P.L. fol. 11. 2 Bland at 101. The footnote lists several other ancient Maryland cases in reference to actions against sheriffs on which appellee has relied. Several of those notes refer to holding a sheriff in contempt for failing to have a defendant or other party in court after having been served with writs of attachment. Other notes discuss a sheriff being subject ³⁸⁴ to amercement. 4 While it is not entirely clear, it appears that in those cases to which the footnote refers that a sheriff is being held in contempt, orders were issued by the court to the sheriff which the sheriff disobeyed.

While there is evidence in the case at bar that the sheriff failed to comply with the statutes and rules relating to service, there is no evidence of the violation of a court order. The circuit courts certainly have jurisdiction to entertain contempt proceedings in respect to a sheriff where the sheriff has committed a direct contempt disrupting the court’s proceedings or it is alleged that he has contemptuously refused to abide by an order of the court or it is so provided by statute. It is not clear, and may even be doubtful, that the omissions complained of here constituted contempt in the first instance. Appellant, however, has failed to raise this issue.

We, therefore, will not address the underlying question of the appropriateness of the type of action conducted against Sheriff Sensabaugh. Md.Rule 8-131. I. Is a master authorized to conduct a contempt hearing of matters other than those authorized by Maryland Rule 2-541(b)(7)? We have attempted to discern from the records of the Court of Appeals Standing Committee on Rules of Practice and Procedure what that committee’s purpose was in the recommendation of the adoption of the rules concerning contempt and a master’s involvement in such proceedings.

Our efforts have not been substantially fruitful. Some light, however, may be gleaned from the little that is contained in those records and from the absence of certain matters therein. ³⁸⁵ The minutes of the April 22, 1977, meeting of the committee reflect some consideration of the rule. 5 The minutes provide that the committee was considering a letter from Judge William McCullough containing certain recommendations. The minutes reflect that Judge McCullough’s second suggestion was “the amendment and enlargement of section g. 1 (Time of Entry of Order — Immediate Order) to permit entry of immediate orders in other than pendente lite cases, including contempt.” The minutes subsequently reflect the following: Mr. Rodowsky stated that he believed Judge McCullough’s second point was well taken, with respect to immediate orders, and that he proposed inclusion in the second line of subsection g. l(ii) following “order,”, the words “upon a master’s determination of contempt,”. Mr. Myerberg stated that such an amendment would raise a serious constitutional question, and that he believed it unconstitutional for a master to hold a party in contempt.

Masters in Baltimore City have no such power. Mr. Owens and Judge McAuliffe agreed that in Montgomery County masters have no power to hold a party in contempt. Mr. Myerberg asked how a master could hold a party in contempt of an immediate order, if the party had ten days within which to except to the master’s report? A discussion ensued, during which Judge Ross expressed concern that the 10 day time within which to file exceptions might prevent a judge from ruling on contempt.

He stated that the court’s hands should not be so tied. The hearing by the judge was not a hearing on exceptions, but on a contempt citation by the master and referred to the court. Mr. Myerberg stated that masters should have no jurisdiction in either custody or contempt matters, that these ³⁸⁶ issues were too important to allow masters to determine them. The Chairman concurred that masters should not handle contempt matters.

Judge Ross stated that in Baltimore City, Lucy Garvey had been handling contempt matters for years, and that it works well. He acknowledged, however, that although the master determines prima facie that a party is in contempt, a judge actually signs the order. Judge McAuliffe thereupon moved the deletion of subsection c. 4, and the motion was seconded. The Chairman called for a vote, and the motion carried on a vote of eight for to six against.

Mr. Myerberg acknowledged that the impact of deleting contempt from a master’s jurisdiction will be tremendous, as it will throw back many cases onto judges, and will only delay civil cases further. He reiterated his opinion, however, that it was simply not justice to allow a master to determine contempt. Mr. Tabor asked whether a master shouldn’t initially have the power to determine contempt? In Baltimore City Lucy Garvey disposes of many cases by being able to determine contempt, at least prima facie.

Mr. Rodowsky stated that the issue should probably be restated; should the determination of contempt be heard only by a judge, or initially by a master, and be heard by a judge only on exceptions taken to the master’s determination? There being several suggestions for a recount of the vote on Judge McAuliffe’s motion to delete subsection c. 4, the Chairman called for a recount, which resulted in a vote of four for deletion to 10 against deletion, thereby reversing the prior result. Judge Ross suggested that the proposed rule be referred back to the Subcommittee to draft a further amendment to subsection g. l(ii), or the possible addition of a new