Thorne v. Thorne

ROBERT M. BELL, Judge. Russell R. Thorne, appellant, appeals from the judgment of the Circuit Court for Prince George’s County holding him in “willful contempt of court” and sentencing him to 179 ³⁰ days in the County Detention Center for failure to pay child support. He presents three issues for our review: 1. Was thé evidence sufficient to show that appellant willfully failed to pay court ordered child support? 2.

Did the trial judge err in his hybrid treatment of a criminal contempt? 3. Did the trial court err in delegating its authority to determine whether an adverse judgment and a contempt order were appropriate to appellant’s ex-wife? Finding merit in the first, we will reverse. The Facts Edna Nutwell, the former Mrs. Thorne, obtained a final divorce from appellant on September 25, 1979.

A decree entered in the case, Equity No. 77-2483, awarded her custody of the parties’ minor children and ordered appellant to pay, through the Support Collection Unit, $173.60 per month for their support. The decree also provided that if his former wife received financial assitance from the Department of Social Services, appellant was to reimburse the Department to the extent of such assitance. It being alleged that appellant had failed to make support payments required by the decree, a Petition To Cite For Contempt Or For Entry of Judgment was filed in case No. 77-2483 on May 25, 1984. 1 After considerable procedural skirmishing, a contempt hearing was held before the court on March 19, 1986. At that hearing, evidence was adduced through testimony and proffer, as to which no objection was taken, that appellant never paid any child support and, further, that the amount then owed was $17,536.42, of which $11,903.60 was due to his former wife and the remainder, $5,632.92, was due to Social Services.

After in ³¹ quiring of Mrs. Nutwell as to her wishes, the court entered judgment in her favor for the amount found to be due her and advised her that the court would collect the ongoing support payments. This left for consideration the $5,632.92 due Social Services. Concerning appellant’s ability to pay, the court had previously been advised by appellant’s counsel, that “today [appellant]^ not working because he has a broken hand” and, consequently, “is unable to pay, is unable to work at this time.” The court’s inquiry, made of appellant, into the circumstances surrounding his broken hand revealed that appellant broke his hand while working in a junk yard when “[a] car flipped on it”. Appellant denied entitlement to, or receipt of, worker’s or unemployment compensation.

Nevertheless, the court opined: Well, I think you ought to get yourself a lawyer because I think that gives you the current ability to pay because if you work for an employer and you get injured on the job you have a right to sue them if they don’t have workmen’s compensation. The court then ruled: ... I find you in willful contempt of court. I sentence you to 179 days in the County Detention Center.

You may purge yourself by doing the following. You may purge yourself by paying arrearages of $5,632.92. The purge will be as follows. By paying $1,000.00 he may be released from jail and then he may pay through his Workmen’s Compensation and/or any other claims he has and collect [sic] the sum of $200.00 a month on the arrearage.

Is this an arrearage only, folks, now except for the ongoing payments? No, its not an arrearage only. You’re a disgrace. You know, any man who cannot support his children and come up with all the excuses that you come up with there’s not much more that I can say.

Take him away, Mr. Sheriff. ³² Appellant filed a Petition For Writ of Habeas Corpus on May 9, 1986. Seeking inquiry into the legality of his present incarceration, he alleged in the petition that he was without the present ability to purge himself of contempt. Specifically, appellant referred to his inability to post the $1,000.00 cash bond, which was a condition of his release. 2 Following a hearing, the hearing judge passed an order that provided: ORDERED that this court finds the Defendant to be indigent, and without funds or assets to purge himself of contempt and, it is also Ordered that the defendant, Russell Ryson Thorne, ought to be and hereby is granted a modification of his $1,000.00 cash bond to release on personal recognizance and, it is further Ordered that the defendant appear again before the Circuit Court of [sic] Prince George’s County in the above referenced matter, when required by process to do so. With this action, the hearing that had been scheduled for June 4, 1986, on appellant’s Motion To Set Appeal Bond, was rendered moot. 3 This is reflected by the docket entry for June 4, “Appeal bond—moot.

Defendant is released,” and by appellant’s motion to dismiss the hearing, in which appellant stated: “Defendant was released from the County Detention Center on personal recognizance”; that he is “not now incarcerated”, and that he does not need the court to set a bond to secure his release from incarceration pending appeal. Contempt: Civil or Criminal; Ability to Pay Although appellant contends that the contempt at issue here is criminal, he proffers that the trial judge treated it as a hybrid and, therefore, erred. Noting that the petition ³³ requested relief characteristic of both criminal and civil contempt, he directs our attention to the following: (1) the request for a judgment suggests civil contempt; (2) the parties were represented by the State’s Attorney and the Public Defender respectively, indicating criminal contempt; (3) a definite sentence was imposed, again, consistent with criminal, not civil, contempt; (4) the sentence contained a purging provision, which is associated with civil, as opposed to criminal, contempt. Thus, he argues “[i]t is impossible to conclude whether the trial judge used the correct standard in what was clearly prosecuted as a criminal contempt ...”.

Appellant also asserts that the evidence of record does not support the finding made by the court that he had the present ability to pay. He emphasizes that the evidence showed that his hand was broken, rendering him unable to work and thus unable to make any payments towards child support. Moreover, appellant says that, in view of his inability to work, the sentence did not contain a purging provision with which he could have complied. Appellant thus contends that the evidence is insufficient to show a willful failure on his part to pay the court ordered child support.

Before addressing the issue of appellant’s ability to pay, it is necessary that we resolve the nature of the contempt proceeding at issue here. In Maryland, contempt is classified as either civil or criminal. State v. Roll & Scholl, 267 Md. 714, 727 , 298 A.2d 867 (1973); Baker v. Baker, 58 Md.App. 619, 622 , 473 A.2d 1325 (1984); A.V. Laurins & Company, Inc. v. Prince George’s County, 46 Md.App. 548, 561 , 420 A.2d 982 (1980). “[T]he line between civil and criminal contempt is frequently hazy and indistinct ... the same acts or omissions may constitute or at least embrace aspects of both.” Roll & Scholl, 267 Md. at 728 , 298 A.2d 867 . There are, however, clear differences between the two. “A civil contempt proceeding is intended to preserve and enforce the rights of private parties to a suit and to ³⁴ compel obedience to orders and decrees primarily made to benefit such parties.

These proceedings are generally remedial in nature and are intended to coerce future compliance. Thus, a penalty in a civil contempt must provide for purging. On the other hand, the penalty imposed in a criminal contempt is punishment for past misconduct which may not necessarily be capable of remedy. Therefore, such a penalty does not require a purging provision but may be purely punitive.

In this State, to these factors must be added the degree of proof required to establish a contempt—a civil contempt need be proved only by a preponderance of the evidence, while a criminal contempt must be shown beyond a reasonable doubt.” Roll & Scholl, supra. In deciding whether to classify a contempt as criminal or civil, it must be remembered that “the form of punishment does not determine the nature of the proceeding, but rather from the nature of the proceedings flows the manner of punishment.” Baker v. Baker, 58 Md.App. at 625 , 473 A.2d 1325 ; Hare v. Hare, 21 Md.App. 71, 75 , 318 A.2d 234 (1974). See Winter v. Crowley, 245 Md. 313, 317 , 226 A.2d 304 (1967). Thus, where “(1) the complainant is ... a private person as opposed to the State; (2) the contempt proceeding is entitled in the original action and filed as a continuation thereof as opposed to a separate and independent action; (3) holding the defendant in contempt affords relief to a private party; (4) the relief requested is primarily for the benefit of the complainant; [and] (5) the acts complained of do not of themselves constitute crimes or conduct by the defendants so wilful or contumelious that the court is impelled to act on its own motion," the proceeding is ordinarily one for civil contempt.

Roll & Scholl, 267 Md. at 729-80 , 298 A.2d 867 , quoting Winter v. Crowley, supra. See also Baker, 58 Md. at 624, 473 A.2d 1325 . ³⁵ The proceeding sub judice fully complies with each of the factors set out above: the complainant was a private person, the former Mrs. Thorne; 4 the contempt was filed as a continuation of the original action between the parties; the finding of contempt provided relief to the complainant; the relief requested was primarily for complainant’s benefit; and the acts constituting the basis for the contempt finding were not themselves unlawful or such as to compel the court to act on its own motion. We conclude, therefore, that the contempt was civil, and not criminal. Appellant focuses on certain aspects of the proceeding to prove that the contempt was criminal.

All of his contentions are unavailing because they are without merit. That the State represents the complainant does not necessarily render the proceeding criminal. As the State aptly, and accurately, points out, such representation is pursuant to a legislative mandate. Maryland Fam.Law Code Ann. § 10-106 creates the Child Enforcement Administration.

The duties of the Administration include collection and disbursement of support payments through established legal processes, § 10-108(a)(8) and (9), and the Administration is authorized to “approve for child support services any individual who: (1) cannot afford private counsel; and (2) files an application and pays a fee for the child support services as required by the Administration. § 10-109. 5 When engaged in a legal proceeding, 6 either the Administra ³⁶ tion or a person approved for child support services is entitled to be represented by the State’s Attorney. 7 In the instant case, appellant did not raise the issue of the State’s representation of Mrs. Nutwell before the court. Thus, the issue is not properly before us. Maryland Rule 1085. Nevertheless, were it before us, we would not, on this state of the record, conclude that representation was other than as provided by Maryland Fam.Law Code Ann. § 10-115.

It is of course indisputable that a defendant may be imprisoned for civil contempt so long as the purpose of the imprisonment is remedial and the contemnor has an opportunity to purge the contempt, that is to say, that he carries the keys to the prison in his pocket. Baker, 58 Md.App. at 625, 626 , 473 A.2d 1325 ; See Herd v. State, 37 Md.App. 362, 364-65 , 377 A.2d 574 (1977) (“When the Court of Appeals and this Court speak of a ‘provision for purging’ or ‘opportunity for purging’, we mean that the contemner (sic) must be afforded the chance to rid himself of guilt and thus clear himself of the charge.”). That the sentence imposed is determinate, although characteristic of criminal contempt, does not necessarily mean that the contempt is criminal. McDaniel v. McDaniel, 256 Md. 684, 690 , 262 A.2d 52 (1970).

There, the defendant was found in civil contempt and sentenced to one year in the county jail, with the further requirement that part of his earnings be dis ³⁷ bursed for child support. On appeal, he argued that the trial judge had no authority to order him confined for civil contempt for a fixed term. The Court of Appeals remanded the case because the trial judge did not provide for defendant’s release in the event that he paid the arrearages before the expiration of the fixed term; however, the Court pointed out: It must not be supposed ... that the imposition of a fixed term of imprisonment for a civil contempt is invalid per se---- In ordinary circumstances, of course, a determinate sentence may be imposed provided the order of the trial judge allows the contemnor to be released if compliance is accomplished prior to the end of his term. As the author of a Comment in the Chicago Law Review put it: “... no objection can be raised to the imposition of a determinate sentence if the contemnor is given the right to purge himself of the contempt.

In such a case, if the contemnor retains the same defenses which would have been available to him had the commitment order been couched in terms of ‘confinement until compliance,’ the court has simply limited the potential term of imprisonment. To that, the contemnor certainly cannot object. Comment, The Coercive Nature of Civil Contempt, 33 U.Chi.L.Rev. 121, 130 (1965).” 256 Md. at 690-91 , 262 A.2d 52 . Here, a purging provision was provided.

In fact, it provided for purging on two levels: appellant could post a bond and thus remain free while he made the payments on the arrears required by the order, or he could pay the full amount of the arrears. Thus, the imposition of a determinate sentence did not, in this case, render the contempt criminal. Appellant’s final contention, that the case is captioned as a criminal case, is