Stevens v. Tokuda

WOODWARD, J. The Circuit Court for Carroll County found Derek Stevens, appellant, in constructive civil contempt for failure to pay child support to Yoko Tokuda, appellee, on October 18, 2010. The circuit court did not impose a sanction, but ordered appellant, as a purge provision, to pay $800.00 per month toward his child support arrearage, as well as provide the court and appellee’s attorney with his job search information on a regular basis. When appellant failed to comply with the purge provision, the court ultimately imposed 179 days of incarceration as a sanction in an order dated February 2, 2012. During the same time period, appellant filed a motion to modify his child support obligation.

A hearing was held before a master, who recommended that appellant’s child support payments be reduced from $1,000.00 per month to $708.00 per month, notwithstanding a finding that appellant was currently unemployed. Appellant filed exceptions, and the court sustained those exceptions in part, but did not decide the new amount for appellant’s child support payments. About six months later the court again considered appellant’s motion to modify child support and decided to remand the motion to the master for the purpose of taking additional evidence. The remand order was contained in the same February 2, 2012 order that imposed the sanction of incarceration for appellant’s contempt.

This appeal followed. ¹⁵⁹ On appeal, appellant presents five questions, 1 which we have re-phrased into three: 1. Did the circuit court err in finding appellant in constructive civil contempt and imposing a purge provision of future acts in its order of October 18, 2010? 2. Did the circuit court err by ordering appellant incarcerated for 179 days without a purge provision in its February 2, 2012 order and also err by denying appellant’s petition for writ of habeas corpus seeking immediate release from incarceration? 3. Did the circuit court err by remanding appellant’s motion to modify child support to a master for further evidence?

As we will explain, (1) we do not reach question 1 because of a lack of jurisdiction, (2) we vacate the balance of the period of incarceration imposed on appellant, and (3) we affirm the February 2, 2012 order of the circuit court in all other respects. 2 BACKGROUND Appellant and appellee are the parents of a child, Raiden, who was born January 14, 1999. On August 27, 2009, the circuit court entered a judgment of absolute divorce between the parties. As part of the divorce judgment, the court ¹⁶⁰ ordered appellant to pay $1,000.00 per month in child support to appellee. I. Contempt On March 8, 2010, appellee filed a Petition for Contempt, alleging in part that appellant had failed to make the required child support payments in violation of the circuit court’s order.

A hearing was held on appellee’s petition on October 14, 2010, at the conclusion of which the court, among other things, found appellant in contempt for failure to pay the court-ordered child support payments. The court did not impose a sanction for appellant’s contempt, but did include in its order dated October 18, 2010, the following purge provisions: ORDERED, that [appellant] shall pay $300.00 per month to purge the present child support arrearage, and it is further, ORDERED, that on the first day of each month, beginning on December 1, 2010 and extending until [appellant] is employed on a full-time basis, [appellant] shall provide this Court, and [appellee’s] attorney, with a log containing the following information: the dates of any and all job interviews; a list of the names and addresses of any and all employers which [appellant] interviews with or submits resumes and/or applications to; the dates that any interviews take place or that applications and/or resumes are submitted; and any and all information regarding the status of any pending applications for employment.... In its October 18, 2010 order the circuit court also scheduled a review hearing on appellee’s petition for contempt for February 2011, which was subsequently postponed to March 17, 2011. Following a hearing on March 17, 2011, the court issued an order dated March 18, 2011, in which the court found that appellant was in contempt of the purge provisions of the October 18, 2010 order.

The court expressly deferred ruling on any sanction for appellant’s contempt, but did modify the previous purge provisions to require appellant’s job search information be submitted to the court and to appellee’s counsel on a weekly, instead of monthly, basis and to advise the court ¹⁶¹ and appellee’s counsel of appellant’s employment within forty-eight hours of obtaining the same. On January 5, 2012, appellee filed a Motion to Show Cause and Impose Sanctions, in which appellee alleged that appellant violated the March 18, 2011 order by failing to submit any job search information after July 2011. Appellee requested that the court impose sanctions on appellant. On February 2, 2012, the circuit court held a hearing on appellee’s January 5 motion to show cause. 3 At the conclusion of the hearing on February 2, 2012, the court issued an order in which it found “by clear and convincing evidence that [appellant] has failed to comply with this Court’s purge provisions of March 18, 2011 having the present ability to do so.” The court then imposed on appellant the following sanction for his contempt: ORDERED, that this Court imposes a sanction of One Hundred and Seventy-Nine (179) days to the Carroll County Detention Center; and it is further, ORDERED, that this Court orders a furlough from the Carroll County Detention Center of five (5) days in order to give [appellant] the opportunity to find employment; and it is further, ORDERED, that on [appellant’s] five (5) furlough days, [appellant] shall be allowed to leave the Carroll County Detention Center at 9 a.m.; and it is further, ORDERED, that on [appellant’s] five (5) furlough days, [appellant] shall return to the Carroll County Detention Center by 5 p.m.; and it is further, ORDERED, that [appellant’s] employment search is confined to Carroll County, Maryland, Howard County, Maryland and Baltimore County, Maryland; and it is further, ORDERED, that if [appellant] finds employment within the five (5) furlough days, [appellant] shall provide to the ¹⁶² Court actual documentation that he has obtained employment.

As a result of the trial court’s February 2, 2012 order, appellant was incarcerated. Appellant noted an appeal to this Court on February 29, 2012. After failing to obtain release from incarceration via either bail pending appeal or a petition for writ of habeas corpus, appellant moved this Court to stay the judgment of the circuit court and to release him from incarceration. This Court granted appellant’s motion, and he was released on March 29, 2012. 2.

Modification of Child Support On December 17, 2010, while the litigation of appellee’s petition for contempt was ongoing, appellant filed a motion to modify child support. In his motion appellant claimed that he was then unemployed and had been unable to maintain employment since the Fall of 2008. Appellant supported his claim by reference to his testimony at the October 14, 2010 hearing on appellee’s petition for contempt. On March 31, 2011, a hearing was held before a master on appellant’s motion to modify child support.

The master issued his report and recommendations on April 8, 2011, in which he found, inter alia, that appellant was currently unemployed, but had the present ability to earn $50,000.00 per year. Based on that potential income, the master recommended a modification of appellant’s child support payments from $1,000.00 per month to $708.00 per month. Appellant filed exceptions to the master’s report, challenging, among other things, the finding that he could presently earn $50,000.00 per year. Appellee did not oppose or otherwise respond to appellant’s exceptions.

On August 30, 2011, the circuit court sustained appellant’s exceptions in part. In a Memorandum Opinion, the court explained its decision, in relevant part: Master Constantinides found that [appellant] has been unemployed since 2009. The Master stated that [appellant] has tried to find work and he has been seeking positions with lower skill levels than he possesses and with lower pay. The Master did indicate that [appellant] did make $75,000.00 ¹⁶³ when he worked as a subcontractor with Lockheed Martin.

However, the Master did not make a specific finding that [appellant] has voluntarily impoverished himself. [Appellant], by his employment logs and testimony, appeared to be seeking employment in the Washington D.C. area, as well in other geographic locations. Since the Master did not make a finding that [appellant] has voluntarily impoverished himself, the Master could not determine what [appellant’s] potential income could be. The Master would have to determine his support obligation by using [appellant’s] actual income at the time which was $0.00. However, it appears [appellant] has recently secured employment.

As soon as [appellant] is able to document his income to this Court, this Court will recalculate his support obligations based on his new actual income. Based on the Memorandum Opinion, the trial court issued an Order dated August 30, 2011 that simply “ORDERED, that [appellant’s] Exceptions be, and are hereby, SUSTAINED in part.” No further action was taken by the court at that time regarding appellant’s child support obligation as a result of appellant’s exceptions to the master’s report and recommendations. Appellant’s motion to modify child support was considered again by the circuit court at a hearing on February 2, 2012. At that hearing, appellee’s counsel reminded the court that it had sustained appellant’s exceptions “based on the fact that the Master did not find that before he imputed any income to [appellant] that he did not make a finding of fact that [appellant] was voluntarily impoverishing himself.” Appellee’s counsel advised the court: “My position would be that you send the case back to the Master for evidence on whether or not I can prove—[appellee] can prove that [appellant] has voluntarily impoverish[ed] himself.” In other words, according to appellee’s counsel, a remand was necessary to “flesh out the facts as best we can to determine what the appropriate amount of child support is because it is really kind of inconceivable that [appellant] just says well, you know, my child support obli ¹⁶⁴ gation is zero because I make no money.” The trial court agreed, and in its February 2, 2012 order directed that this matter be, and is hereby, REMANDED to the Master on the issues that the Court sustained [appellant’s] Exceptions on for the purpose of taking additional evidence and testimony on those particular issues[.] As previously indicated, appellant noted a timely appeal from the court’s February 2, 2012 order.

Additional facts will be set forth as necessary to our discussion of the issues presented in the instant appeal. DISCUSSION 1. The Circuit Court’s October 18, 2010 Contempt Order Appellant contends that the circuit court erred in holding appellant in contempt in its October 18, 2010 order. In support of this assertion, appellant argues that “the evidence before the [circuit] Court at the October 14, 2010 hearing was such that the Court was clearly erroneous” in finding appellant in contempt after concluding that appellant did not sustain his “burden of showing, by a preponderance of the evidence, that he was unable to pay more than he did pay.” Appellant further contends that the October 18 order “was improper for the [ ] reason that it purported to impose a purge provision requiring that [appellant] take actions into the indefinite future in order to purge the contempt.” Appellant claims that “[s]etting [ ] open-ended tasks as purge provisions implicitly to avoid the future immediate imposition of a sanction of incarceration was not a lawful provision of a civil contempt order.” We do not reach appellant’s contentions, however, because no timely appeal was taken from the circuit court’s October 18, 2010 contempt order.

Appellant did not file an appeal until February 29, 2012. Ordinarily, an appeal will only lie from a “final judgment.” See Md.Code (1973, 2006 Repl. Vol.), § 12-301 of the Courts and Judicial Proceedings Article (“CJ II”). Nevertheless, § 12-301 “does not apply to ¹⁶⁵ appeals in contempt cases, which are governed by §§ 12-304 and 12-402” of the Article.

CJ II § 12-302(b). “ ‘A contempt proceeding, even though it may grow out of or be associated with another proceeding, is ordinarily regarded as a collateral or separate action from the underlying case and as separately appealable, with appellate review normally limited to the contempt order itself.’ ” Blake v. Blake, 341 Md. 326, 332 , 670 A.2d 472 (1996) (quoting Unnamed Attorney v. Attorney Grievance Comm’n, 303 Md. 473, 483 , 494 A.2d 940 (1985)). The time period for filing an appeal from a finding of contempt is thirty days after the entry of the order making that finding. See In re Ariel G., 153 Md.App. 698 , 704 & n. 1, 837 A.2d 1044 (2003) (citing CJ § 12-304(a) (1973, 1998 Repl. Vol., 2001 Cum.Supp.); Md. Rule 2—601(b); Md. Rule 8-202(a)), ajfd, 383 Md. 240 , 858 A.2d 1007 (2004).

Even if no party challenges the appealability of an order, appealability is a jurisdictional issue that we must resolve sua sponte. See Johnson v. Johnson, 423 Md. 602, 605-06 , 32 A.3d 1072 (2011). At oral argument before this Court, appellant asserted that, because no sanction was imposed in the October 18, 2010 order, he had a right to appeal the contempt order at the time that the sanction was imposed on February 2, 2012, citing Bryant v. Howard County Department of Social Services, 387 Md. 30 , 874 A.2d 457 (2005), as authority. Appellant’s reliance on Bryant , however, is misplaced.

In Bryant , the Court of Appeals faced the question of “whether an appeal lies from a contempt finding that is unaccompanied by any sanction.” Id. at 41 , 874 A.2d 457 . The Court traced the historical evolution of Maryland jurisprudence on the appealability of contempt orders. Id. at 42-45 , 874 A.2d 457 . Specifically, the Court reiterated that its dictum in Lynch v. Lynch, 342 Md. 509 , 677 A.2d 584 (1996), that “ ‘a finding of contempt, [even] where there is no possibility of enforcing compliance with the court order to which it relates, ... is a form of punishment,’ ” remained good law.

Id. at 45, 677 A.2d 584 (emphasis omitted) (quoting Lynch, 342 Md. at 529 , 677 A.2d 584 ). The Court held that, “[e]ven if we were not to regard [a mere contempt finding] as punishment, ¹⁶⁶ the plain wording and a common sense reading of [CJ] § 12-304 indicate an intent to permit an appeal from the adjudication of contempt itself, without regard to whether an immediate sanction is imposed.” Id. What the Bryant Court did not say, contrary to appellant’s argument, is that a party could wait to appeal a contempt order until a sanction was imposed. Our conclusion on this issue is further compelled by our opinion in In re Ariel G., 153 Md.App. 698 , 837 A.2d 1044 .

In Ariel G., the circuit court entered an order finding the appellant in contempt on August 6, 2001. Id. at 701 , 837 A.2d 1044 . Following subsequent hearings, the circuit court entered three other orders—on January 16, 2002, June 26, 2002, and September 29, 2002—in each of which it found that the appellant had not yet purged her contempt. Id. at 701-03 , 837 A.2d 1044 .

The appellant filed an appeal from only the June 26, 2002 order. Id. at 701, 703 , 837 A.2d 1044 . We held that we did not have jurisdiction over the August 6, 2001, January 16, 2002, or September 29, 2002 orders, because “[t]he period for filing an appeal expired thirty days after that order was entered.” Id. at 704 and n. 1, 837 A.2d 1044 (citing CJ § 12-304(a) (1973, 1998 Repl. Vol., 2001 Cum.Supp.); Md. Rule 2-601(b); Md. Rule 8-202(a)).

In the case sub judice, the circuit court issued a contempt order on October 18, 2010 and imposed the sanction of incarceration in an order dated February 2, 2012. The October 18, 2010 order was not formally entered on the docket until October 22, 2010. Appellant could have filed a timely appeal any time within thirty days after that date, i.e., on or before November 21, 2010. See Md. Rule 8-202(a) (requiring an appeal to be brought within thirty days of the entry of an order or judgment).

The instant appeal was not filed, however, until February 29, 2012, well over a year later. Thus, although we have jurisdiction over the February 2, 2012 order, we do not have jurisdiction over the October 18, 2010 order. 2. The Circuit Court’s February 2, 2012 Order of Incarceration Appellant asserts that the circuit court erred by ordering the punitive sanction of 179 days incarceration in the Febru ¹⁶⁷ ary 2, 2012 order, because the order did not give appellant “the present ability to purge the contempt.” Appellant argues that “[ijncarceration for constructive civil contempt is available only to compel immediate performance of an act, such as payment of a sum of money, which the Court finds the obligor is presently able to perform, but contumaciously refuses to.” We agree. “In support enforcement actions, contempt proceedings are guided by Maryland Rule 15-207.” Jones v. State, 351 Md. 264, 272 , 718 A.2d 222 (1998). The issue that appellant presents requires this Court to undertake a legal interpretation of Rule 15-207.

Consequently, we review this issue de novo. See Rawlings v. Rawlings, 362 Md. 535 , 555 n. 19, 766 A.2d 98 (2001) (noting that issues of interpretation of Maryland Rules are treated the same as statutory interpretation issues). Constructive civil contempt in a support enforcement action is governed by Maryland Rule 15-207(e). 4 Before a court may make a finding of contempt, the party seeking relief must prove “by clear and convincing evidence that the alleged contemnor has not paid the amount owed, accounting from the effective date of the support order through the date of the contempt hearing.” Md. Rule 15-207(e)(2). If the court concludes that the party has met its burden of proof, the burden shifts to the alleged contemnor to prove by a preponderance of the evidence that (A) from the date of the support order through the date of the contempt hearing the alleged contemnor (i) never had the ability to pay more than the amount actually paid and (ii) made reasonable efforts to become or remain employed or otherwise lawfully obtain the funds necessary to make payment, or (B) enforcement by contempt is barred by limitations as to each unpaid spousal or child support payment for which ¹⁶⁸ the alleged contemnor does not make the proof set forth in subsection (3)(A) of this section.

Md. Rule 15—207(e)(3). If the alleged contemnor is unable to meet his burden, the court is instructed to make a finding of constructive civil contempt and must issue a written order. See Md. Rule 15-207(e)(4). In issuing a constructive civil contempt order, the trial court must specify “(A) the amount of the arrearage for which enforcement by contempt is not barred by limitations, (B) any sanction imposed for the contempt, and (C) how the contempt may be purged.” Id.

Rule 15—207(e)(4) further requires that, “[i]f the contemnor does not have the present ability to purge the contempt, the order may include directions that the contemnor make specified payments on the arrearage at future times and perform specified acts to enable the contemnor to comply with the direction to make payments.” Id. Of particular importance to the case sub judice, the court may specify imprisonment as the sanction if the contemnor has the present ability to purge the contempt. If the contemnor does not have the present ability to purge the contempt, an example of a direction to perform specified acts that a court may include in an order under subsection (e)(4) is a provision that an unemployed, able-bodied contemnor look for work and periodically provide evidence of the efforts made. If the contemnor fails, without just cause, to comply with any provision of the order, a criminal contempt proceeding may be brought based on a violation of that provision.

Md. Rule 15-207 committee note (emphasis added). In this regard, the Court of Appeals has counseled that, “unless and until the contemnor has been ‘given an opportunity to show that he ha[s] neither the estate nor the ability to pay his obligation and fail[s] to make such a showing, he should not [be] incarcerated.’ ” Jones, 351 Md. at 276 , 718 A.2d 222 (alterations in original) (quoting Johnson v. Johnson, 241 Md. 416, 420 , 216 A.2d 914 (1966)). ¹⁶⁹ Maryland law has long recognized a clear distinction between civil contempt and criminal contempt. Whereas a criminal probationer found to be in contempt may be immediately incarcerated,