Thrower v. State Ex Rel. Bureau of Support Enforcement

WILNER, Judge. Michael Thrower, Michael Mason, and Leonard Miles, who were each in substantial arrears in the payment of court-ordered child support, were charged in the Circuit Court for St. Mary’s County with constructive civil contempt of court for failure to maintain bi-weekly contact with the State Bureau of Support Enforcement (BOSE), as previously ordered by the court. Acting pursuant to Maryland Rule 9-207(a)(l)(G), the petitions were referred by the clerk to a domestic relations master for the taking of testimony and the making of findings and recommendations. The hearings conducted by the master in each of the three cases were, at best, summary in nature.

The respondents appeared without counsel and without a proper waiver of counsel. After finding, in each case, that the respondent had willfully failed to maintain the required contact with BOSE and was therefore in contempt, the master recommended that the respondent be incarcerated for 179 days unless a purge amount that had utterly no evidentiary foundation but which the master found the respondent had the ability to pay, was paid within a set period of time. The appeals now before us are from judgments of the court adopting those findings and implementing the recommendations. Appellants insist that the orders entered against them must be reversed for any of four reasons: (1) there was not an effective waiver of counsel, (2) there was insufficient evidence to support the purge amount, (3) referral of a constructive civil contempt proceeding to a master pursuant to Rule 9-207 violates due process and constitutes an improper delegation of judicial authority, in violation of Article IV, § 1 of the Maryland Constitution, when incarceration is imposed, and (4) the procedures set forth in Maryland Rule 15-207(e) for the conduct of civil contempt support enforcement actions violate due process and Article IV, § 18 of the Maryland Constitution. ¹⁴⁹ 1 The State concedes the validity of the first and second reasons and acquiesces in reversals on those grounds.

It urges that we not address the other two arguments on the grounds that, one, they were not raised in or decided by the circuit court and therefore have not been preserved for appellate review, and two, this Court ordinarily does not address State or Federal Constitutional issues if it is not necessary to do so. We agree that the judgments must be reversed on the second ground raised by appellants and thus find it unnecessary to address the other grounds. 2 ¹⁵¹ THE FACTS Michael Thrower Michael Thrower fathered four children by three different women, each of whom was compelled to pursue him for child support. On February 9, 1990, at the instance of Bertha Brown, Thrower was ordered to pay to BOSE $200 a month for the support of his son, Michael Thrower, Jr. In June, 1991, at the instance of Sebastine Corbin, a consent order was entered directing him to pay to BOSE $75 a month for the support of his son, Michael Thrower III. In October, 1991, by consent, that amount was increased to $76 per week.

Also in October, 1991, a judgment divorcing him from Cynthia Thrower ordered him to pay to Ms. Thrower $200 a month for the support of Shatie and Tanika Thrower, children of that marriage. These various support orders had little effect on Mr. Thrower. In April, 1991, he was already $965 in arrears as to Michael, Jr. In December, he was $3,260 in arrears as to Michael III, and, in that month, he was found in contempt and ordered committed to jail unless $500 was paid on the arrear ¹⁵² age. In June, 1992, he was $8,836 in arrears as to Shatie and Tanika and was again ordered committed, for 90 days, unless $500 was paid.

His total support obligation at that time was $789/month. In March, 1993, he was $15,864 in arrears as to Shatie and Tanika. In lieu of incarceration, he was ordered then to make bi-weekly contact with BOSE for employment counseling and monitoring. Whatever emanated from that contact seemed to work, at least for a while, for the next enforcement action was not until November, 1996, at which time his arrearage had climbed back to $15,986.

He was again ordered to report his employment status to BOSE on a bi-weekly basis and to submit a medical incapacitation form. In August, 1997, when he was nearly $16,000 in arrears as to Michael, Jr., over $23,000 in arrears as to Michael III, and over $18,000 in arrears as to Shatie and Tanika, Thrower filed a petition to reduce the amount of support for Shatie, Tanika, and Michael III on the ground that a “recurring injury of my knee from 1991, keep stopping me from working.” In December, 1997, a consent order was entered establishing a wage lien and directing Thrower to pay $270/month for Shatie and Tanika, an increase of $70/month. The next effort to secure payment came in November, 1998, when Thrower was alleged to be about $70,000 in arrears in the three cases. At a hearing before the master, Thrower claimed to be employed, making about $140/week.

His defense at the time was that money was being withheld pursuant to the earnings lien, but he produced no records to demonstrate any such deduction and BOSE claimed that it had received nothing from the employer. The master, on no evidence other than Thrower’s admission that he was earning about $140/week, found that he had “the present ability to make his full on-going child support payments and maintain bi-weekly contact with [BOSE]” and that he also had “the present ability to meet [a] purge amount of [$420].” He recommended that Thrower be held in contempt for failure to pay and failure to maintain bi-weekly contact with BOSE, that a purge amount of $420 be set, and that Thrower be incarcerated for 179 days, on a work-release program, if the purge amount was not paid within three ¹⁵³ weeks. 3 Expressing his obvious frustration, the master told Thrower: “I can’t deal with you any more. You owe seventy thousand dollars. You don’t care.

You’re not sincere about child support or anything else. You just come in here and blow your smoke and your story and I’m just done with you.” Exceptions to the master’s recommendations were filed by the Public Defender’s Office, claiming that (1) there was no evidence supporting the master’s finding that Thrower had the present ability to pay the purge amount, (2) the master failed to determine whether Thrower had received notice of his right to counsel, as required by Maryland Rule 15-206(e) and Thrower was not permitted to explain his appearance without counsel, and (3) Thrower was not given a fair opportunity to offer a defense. In January, 1999, the court found that the master had neglected to advise Thrower of his right to counsel and sustained that exception. Thrower, who apparently had been incarcerated in the meanwhile, was released from jail.

Two months later, in March, 1999, another petition for contempt was filed, charging Thrower with failure to maintain bi-weekly contact with BOSE, as required by the existing court order. Thrower failed to appear at the hearing set for March 12. When he appeared at the rescheduled hearing on May 14, he requested, and received, a postponement in order to obtain counsel. He requested, and received, the same relief at a hearing on June 28.

The hearing that ultimately led to this appeal was held on July 19, 1999. It did not take very long. Thrower again appeared without counsel. After the master was advised by BOSE that Thrower had “been given a double opportunity to obtain an attorney,” this colloquy, which constitutes the entire waiver inquiry, occurred: ¹⁵⁴ “THE COURT: Okay.

So you’ve had the opportunity. You’re here without a lawyer. You’re ready to go. You gonna be your own lawyer” MR.

THROWER: Yes. THE COURT: Okay. Very good. Court finds pursuant to Maryland Rule [15-206] that Mr. Thrower has knowingly and voluntarily waived his right to counsel.

Swear him in.” The BOSE agent, who was not sworn, informed the court that Thrower was then $76,359 in arrears and that his last contact with BOSE was on July 16—only three days earlier. BOSE later acknowledged that, as the result of a consent order agreed to by one of the mothers but not yet signed by a judge, $20,000 of the arrearage would be excused, leaving a remaining arrearage of approximately $56,000. His total support obligation was then $814/month and the only payment received by BOSE in 1999 was $180.35, which was pursuant to a wage lien. Thrower stated that he had been fired from his job and was then receiving unemployment benefits of $69/ week.

He said that he had two of his children with him during the summer. On that evidence, the master decided to double the $420 purge he had set in 1998, declaring: “The purge in this case will be eight forty and you can get the Public Defender and file an exception and I’m sure you’ll be successful in having that one overturned too. No problem.” Because Thrower had the two children with him, the master decided to delay the “purge date” until August 30. The actual findings made by the master were that Thrower was in contempt of court, that $840 was a reasonable purge amount, and that Thrower had the present ability to pay that amount.

How he was going to pay it when his only apparent resource was unemployment benefits of $69/week was not discussed by the master. The master recommended that, unless the $840 was sooner paid, Thrower be incarcerated for 179 days, effective September 15, 1999, but placed on work release. The same exceptions that had been filed with respect to the 1998 report of the master were filed to this report, in nearly identical language, the first ¹⁵⁵ one being that there was no evidence to support the master’s conclusion that Thrower had the present ability to pay the purge amount. The court denied the exceptions, however, and, in an order dated July 30, 1999, adjudged Thrower to be in contempt of court and sentenced him to 179 days in the county detention center, effective September 15, 1999, unless before then he paid a purge amount of $840.

Michael Mason In a paternity action filed in 1985, Michael Mason was found to be the father of Katrina Thomas, born on January 31, 1982, and he was ordered to pay support for that child. In a paternity action filed in 1986, he was found to be the father of Michael Mason, Jr., born on March 2, 1982—two months after Katrina—and was ordered to pay support for him. In each case, the amount of support was eventually set at $250/month, payable to BOSE. Mason was first found in contempt for failing to support his son, Michael, in September, 1987.

By September, 1988, his arrearage in Michael’s case had risen to $2,250, and he was again found in contempt. A third contempt order came in March, 1992, by which time his arrearage had declined to $1,459. The arrearage increased thereafter until May, 1996, when Michael’s mother agreed to forgive nearly $7,500 in accumulated arrearage. By September, his arrearage was back to $1,700.

A similar pattern occurred in Katrina’s case, resulting in several contempt proceedings. At some point, the two support orders were enforced together, and the consolidated arrearage grew significantly. By July, 1999, even after the forgiveness of $7,500, his combined arrearage stood at over $12,000. In that month, BOSE petitioned for contempt, not on the basis of non-payment, but because Mason had failed to maintain bi-weekly contact, as required.

Mason appeared at the hearing without a lawyer. The waiver inquiry consumed all of eleven lines on one page of transcript: “THE COURT: Alright. You have the right to have a lawyer, you know that. ¹⁵⁶ MR. MASON: Yes, sir.

THE COURT: You’ve been here before. MR. MASON: Yes. THE COURT: You going to be your own lawyer today?

MR. MASON: Yes. THE COURT: Alright. The Court finds pursuant to Maryland Rule [15-206] that Mr. Mason has knowingly and voluntarily waived his right to counsel.

And you understand the outcome of the proceedings could be jail and a lawyer could be helpful to prevent that? MR. MASON: Yes.” At that point, BOSE informed the master that there were three cases pending, requiring bi-weekly contact, that Mason’s last contact with BOSE was March 8, 1999, and that the last payment was a purge amount of $300 paid on March 30. When asked about the lack of contact, Mason said that he had “a little drinking problem” and had gone to a Veterans Administration hospital to “dry out.” He had no clear recollection of when he went to the hospital but said that he stayed there for two weeks.

Mason said that he was unemployed but made about $75/week doing odd jobs. • On that evidence, the master found that (1) there was no justifiable excuse for missing eight of the required contacts with BOSE, (2) Mason was not regularly employed but earned $75 from odd jobs, (3) he had the present ability to make bi-weekly contacts and to pay child support, (4) the outstanding arrearage was $12,095, (5) a reasonable purge was $900, and (6) Mason had the present ability to pay that amount. Upon those findings, the master recommended that Mason serve 179 days in the county detention center, unless he paid the purge amount before August 9, 1999. The Public Defender filed exceptions, complaining that there was no evidence to support the purge amount, the master failed to conduct a proper waiver inquiry, and Mason was not given a fair opportunity to defend himself. They were denied by the court which, instead, entered an order implementing the master’s recommendations. ¹⁵⁷ Leonard Miles In a paternity order filed in May, 1994, Miles was found to be the father of Litiona Miles, born to Cheryl Nelson, and ordered to pay $100/month support.

By September, 1997, he was $2,900—nearly 2% years—in arrears. In February, 1998, he was found in contempt because of a failure to cooperate with BOSE by providing job contacts—-evidence of attempts to obtain employment. In August, 1998, October, 1998, and March, 1999, he was again found in contempt, for failing to maintain bi-weekly contact with BOSE. In March, the master found that Miles, 25 years old, lived with and was supported almost entirely by his mother, that he had voluntarily impoverished himself, and that he was capable of earning $400/week.

His arrearage at the time was over $3,300. The court sentenced him to 179 days incarceration unless he paid a purge amount of $1,200 by April 19. He did not make the payment and was incarcerated until May 6, 1999. In a paternity order filed in March, 1999, he was found to be the father of Emontraz Miles, born to Constance Wade, and ordered to pay $150/month support for him and to cooperate with BOSE.

In June, 1999, a petition was filed to hold Miles in contempt for failure to maintain bi-weekly contact with BOSE, as ordered. He appeared at the hearing before the master without counsel. The following colloquy comprises the entire waiver inquiry: “THE COURT: Alright, Mr. Miles, you certainly know you have the right to have a lawyer. You’ve been here many times.

You gonna be your own lawyer today? MR. MILES: Yeah. THE COURT: Alright.

Court finds pursuant to Maryland Rule [15-206] the Defendant has knowingly and voluntarily waived his right to counsel. You understand you can go to jail? MR. MILES: Yeah.

THE COURT: Knowing all that, you gonna be your own lawyer? You know a lawyer could be helpful? Any you’re ¹⁵⁸ still unemployed? And