Wilson v. Holliday

HARRELL, Judge. Darryl E. Wilson (Appellant), the father of four children by three mothers (Tina Holliday, Leslie Washington, and Antoría Dixon (Appellees)), was ordered by the Circuit Court for Dorchester County to pay child support for each child. On 29 April 1993, in response to petitions for contempt for nonpayment of those support obligations, Appellant conceded that he had failed to pay pursuant to the support orders. Disposition, originally scheduled for 26 August 1993, was postponed until 17 February 1994.

At that time, Appellant failed to appear and, as a result, the court issued a bench warrant for ⁵⁹³ his arrest. Six years later, on 29 February 2000, the bench warrant was able to be executed. Appellant was released upon posting of a $1000 corporate surety bond the same day. On 30 March 2000, Appellant appeared at the disposition hearing without an attorney.

The court postponed the hearing until 27 April 2000 so that he could obtain one, but ordered Appellant to post a cash-only bond in the amount of $9353, which represented at the time the total amount of his arrearages in the cases. Appellant was unable to post the cash-only bond. On 27 April 2000, the court sentenced Appellant to 18 months in prison, beginning on 1 December 2000, with a purge provision that he either pay the entire amount of the arrearages or a set portion of the arrearage in each case before that date, and that he make current support payments. Appellant appealed to the Court of Special Appeals on 1 May 2000.

On 16 October 2000, before the intermediate appellate court decided his appeals, Appellant filed a petition for writ of certiorari with this Court and a motion to stay the judgments of the Circuit Court. Appellees, represented by the State, consented to the entry of the stay, which we ordered contemporaneously with granting Appellant’s petition for certiorari on 13 November 2000. 1 The petition for certiorari presented the following questions: 1. Whether, under Maryland Rule 15 — 207(e)(4), where the contemnor lacks a present ability to pay, a circuit court may impose a deferred sentence of incarceration subject to a purging provision, whether that purging provision may include the payment of current support, and whether the court may provide for automatic execution of the sentence in the event that the purge amount is not paid. 2. Whether, under Maryland Rule 15 — 207(c)(2), a circuit court may, pending further proceedings on the contempt petition, incarcerate a civil contemnor who has failed to ⁵⁹⁴ appear and set a bond which he does not have the ability to post.

I. This case arises from a 1993 finding that Appellant was in contempt of child support orders regarding four children he fathered with Appellees, Tina Holliday, Leslie Washington, and Antoría Dixon. The cases were consolidated by court order entered 31 May 1990. A. Tina Holliday Having established on 8 March 1984 that Appellant had fathered Tina Holliday’s son, the Circuit Court for Dorchester County ordered Appellant to pay $10 a week in child support, with the amount increasing to $25 upon Appellant’s entry into the armed services. Because Appellant failed to meet his support obligations, many petitions to hold him in contempt for nonpayment of support were filed with the court over the years.

The petition giving rise to the present case was filed on 10 September 1992. Appellant appeared in court on 29 April 1993 and admitted that he had failed to meet his support obligation; however, he failed to appear for a continued disposition hearing scheduled for 17 February 1994. A bench warrant was issued for Appellant and a $1000 blanket bond was set (in all four cases) on 25 February 1994. The warrant was not able to be executed until 29 February 2000.

B. Leslie Washington Appellant’s paternity of Appellee Washington’s two children was established on 23 September 1985. The Circuit Court for Dorchester County ordered Appellant to pay $10 a week in support for each child. Appellant failed both to meet this obligation and to attend his contempt hearing on 26 January 1993. As a result, the court issued a bench warrant for Appellant’s arrest.

On 23 April 1993, Appellant appeared in court and admitted to breaching the support orders. Rescinding the bench warrant, the court found Appellant to be $1516 in arrears on his child support payments. Although the court ⁵⁹⁵ postponed and rescheduled his disposition hearing, Appellant failed to appear. The court issued a bench warrant for Appellant’s arrest on 25 February 1994.

The warrant was not able to be executed until 29 February 2000. C. Antoría Dixon Appellee Dixon filed a paternity complaint against Appellant on 4 March 1986 to establish the paternity of her one-month-old son. On 19 October 1990, Appellant’s paternity of Appellee Dixon’s child was established. Appellant agreed to pay $41.08 a week in child support, but ultimately failed to do so.

On 10 September 1992, Appellee filed a petition to hold Appellant in contempt; Appellant failed to appear for the contempt petition hearing held on 26 January 1993. The court issued a bench warrant for his arrest. On 29 April 1993, Appellant admitted having violated the child support order and to owing Appellee Dixon $5336 in arrears. Although the court postponed and rescheduled his disposition hearing, Appellant failed to appear.

The court issued a bench warrant for Appellant’s arrest on 25 February 1994. The warrant was not able to be executed until 29 February 2000. D. Disposition Hearings The disposition hearing on the contempt findings in all four cases was originally scheduled for 26 August 1993, but was postponed until 16 December 1993, at which time Appellant’s request for legal representation prompted the court to postpone the hearing again until 27 January 1994. Because Appellant failed to appear for the January hearing, the court postponed the hearing until 17 February 1994.

When Appellant failed to appear at that hearing as well, the court issued a bench warrant. After submitting himself to custody on 29 February 2000, 2 Appellant appeared at a 30 March 2000 disposition hearing. ⁵⁹⁶ Appellant asserted that, until informed by the court that day, he had not known that the hearing was a sentencing hearing. 3 Because he appeared at the hearing without an attorney, the court postponed the sentencing hearing until 27 April 2000 so that Appellant could obtain counsel. The court, on 30 March 2000, also set a blanket cash bond in the amount of $9385, an amount equal to Appellant’s current arrearages in the four cases, despite Appellant’s assertions that he was unable to pay that amount and that he was concerned for his job should he be incarcerated as a result of that inability. Unable to post the cash bond, Appellant was incarcerated until his 27 April 2000 hearing.

As a result of his incarceration while awaiting sentencing, Appellant lost his job in Salisbury, Maryland. With Appellant unemployed and, according to counsel, likely to have difficulty in obtaining new employment in light of his criminal record, Appellant’s attorney requested at the sentencing hearing that the court “fashion [Appellant’s purge schedule] in a way that he could more reasonably make these payments so that we don’t set up [Appellant] just for failure again, to come back just on December 1 and begin serving [an] extensive sentence here.” Appellees’ attorney hypothesized that Appellant would be able to meet the recommended payment schedule if he held two minimum-wage jobs. The court ordered Appellant to serve 18 months in the Dorchester County Detention Center for each case, to run concurrently, unless he paid the following amounts by 1 December 2000: in Appellee Holliday’s case, Appellant was ⁵⁹⁷ ordered to pay a purge amount of $420, plus $10 a week in current payments and $20 a week in arrears; in Appellee Dixon’s case, Appellant was ordered to pay a purge amount of $1650, plus $41.08 per week in current support payments; in Appellee Washington’s one child’s case, Appellant was ordered to pay a purge amount of $420, plus $10 a week in current payments and $20 a week in arrears; and, in Appellee Washington’s other child’s case, Appellant was ordered to pay a $510 purge amount, plus $10 a month in arrears and $52 a month in current payments. When questioned further about the amount Appellant would be required to pay in arrears, the court answered that Appellant was to pay the amount of the 29 April 1993 arrearages, as well as “any future contempts.” [Emphasis added].

II

During oral argument before us, counsel for Appellees initially conceded the correctness of Appellant’s arguments, reserving only for defense that Appellant’s defense counsel in the Circuit Court had agreed to the purge amount. 4 Specifically then, the parties agree that the Circuit Court erred when it fashioned a self-executing purging scheme that provided for full payment of arrearages without evidence of Appellant’s present ability to pay, as well as when it ordered Appellant to post a $9353 cash-only bond. They also agree that Appellant should not have been incarcerated without a hearing as to any future non-payment of support, i.e., conduct which had not yet occurred and thus was not yet contemptuous. Appellees’ concessions are well-founded. A. Maryland Rule 15-207(e) Appellant made three arguments under Maryland Rule 15-207(e).

First, he asserted that the Circuit Court erred when, while imposing incarceration or substantial purge provisions, it ⁵⁹⁸ made no finding that Appellant had the present ability to pay the monetary purge of the contempt. Second, he argued that the judgments in this case erroneously required, as a purging provision for past contempt, the payment of future child-support payments when due. Third, Appellant contended that the Circuit Court erred because its judgments made no provision for a further hearing to determine whether Appellant actually had violated the Rule 15-207(e)(4) order and whether he had the ability to purge the contempt before incarceration. We agree that the Circuit Court erred in its judgments.

In Lynch v. Lynch, 342 Md. 509 , 677 A.2d 584 (1996), we concluded that, if an obligor could prove that he or she did not have the present ability to pay the amount of child support owed, then the court could not hold him or her in contempt. Lynch, 342 Md. at 521-22 , 677 A.2d at 590 . We explained: Where the order is one prescribing or prohibiting a specified cause of conduct, the required defense showing is that the defendant is unable to conform his or her conduct in compliance with the court order. Where the order calls for the payment of money, the defendant is entitled to the “opportunity to show that he [or she] had neither the estate nor the ability to pay his [or her] obligation.” In that situation, “[m]orever, the issue is not the ability to pay at the time the payments were originally ordered; instead, the issue is his present ability to pay.” Only if he or she fails to show such inability is a finding of contempt and subsequent imprisonment permitted.

Id. (emphasis added) (citations omitted). Abrogating this holding in Lynch , the Court enacted Maryland Rule 15-207(e) (amended 10 December 1996, effective 1 January 1997; 20 January 1999, effective 1 July 1999), which provides, in pertinent part: (e) Constructive civil contempt — Support enforcement action. (1) Applicability.

This section applies to proceedings for constructive civil contempt based on an alleged failure to pay spousal or child support, including an award ⁵⁹⁹ of emergency family maintenance under Code, Family Law Article, Title 4, Subtitle 5. (2) Petitioner’s burden of proof. Subject to subsection (3) of this section, the court may make a finding of contempt if the petitioner proves 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. (3) When a finding of contempt may not be made.

The court may not make a finding of contempt if the alleged contemnor proves 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 the alleged contemnor does not make the proof set forth in subsection (3)(A) of this section. (4) Order. Upon a finding of constructive civil contempt for failure to pay spousal or child support, the court shall issue a written order that specifies that (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. If the contemnor does not have the present ability to purge the contempt, the order may include directions that the contemnor make specified payment on the arrearage at future times and perform specified acts to enable the contemnor to comply with the direction to make payments.

Recently, in Rawlings v. Rawlings, 362 Md. 535 , 766 A.2d 98 (2001), we discussed the “legislative intent” of Rule 15~207(e) and its effects on the Lynch holding. Rawlings, 362 Md. at 544-50 , 766 A.2d at 103-07 . We noted that Rule 15-207(e) resolved Lynch’s concern regarding the inability to purge if contempt is based on the past ability to ⁶⁰⁰ pay or if the contemnor is determined to be unable presently to satisfy the purge amount. Rule 15-207(e)(4) requires that if is determined that the contemnor does not have the present ability to purge, then “the [contempt] 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.” Rule 15-207(e)(4).

As the committee note explains,[ 5 ] and as noted supra, “[i]f the ⁶⁰¹ contemnor fails, without just cause, to comply with any provisions of the order, [then] a criminal contempt proceeding may be brought based on a violation of the proceeding.” Rule 15-207(e)(4). Rule 15-207(e) thus complies with the notions in Lynch that one must first have the opportunity to demonstrate an inability to pay his obligation and, if imprisonment is ordered, the ability to purge, thus retaining the remedial nature of civil contempt-civil contempt is to force compliance and not to punish. Moreover, the goal of civil contempt of forcing compliance is met when the contemnor is provided with directions as to how to comply and only upon failure to do so may a criminal contempt proceeding be brought. Thus, Rule 15-207(e) provides an extra opportunity for a contemnor to comply with the order before being subject to criminal contempt proceedings.

Nonetheless, a defendant’s present inability to pay, other than as a prerequisite consideration to setting the purge amount, was abolished effectively as a defense to a contempt finding by the adoption of Rule 15-207(e). Rawlings, 362 Md. at 551-53 , 766 A.2d at 107-08 (internal citations omitted). Thus, while Rule 15-207(e) does not eliminate the option of terminating a civil proceeding and initiating a criminal contempt proceeding for a defendant who refuses intentionally to pay his or her child or spousal support amount, the Rule does not provide the courts with the sanction of incarceration where the defendant does not have the present ability to purge. In Jones v. State, 351 Md. 264 , 718 A.2d 222 (1998), the Circuit Court for Baltimore County, upon finding Jones in civil ⁶⁰² contempt for failure to comply with a child support order, imposed a deferred two-year prison sentence on the condition that Jones make the previously ordered payments.

Id., 351 Md. at 271 , 718 A.2d at 226 . The court instructed that, if Jones missed a single payment, “the full balance at that time shall be due and he shall report to the [Baltimore County] Department of Corrections to serve his sentence.” Id., 351 Md. at 279 , 718 A.2d at 230 . Overruling the Circuit Court’s judgment, we determined that the provision was invalid because it required the contemnor to “report to serve the prison sentence without any determination of his present ability to purge the contempt.” Id. We explained that, although Rule 15-207(e) resolved the concerns regarding the Lynch holding, it did not mitigate the pre-requisites of when one can be incarcerated after being adjudicated in civil contempt: [u]nder Rule 15-207, the finding of civil contempt does not pose an immediate threat of incarceration to the contemnor.

Maryland law has long required a distinct regimen of substantive and procedural safeguards for persons found to be in civil contempt of a support enforcement order. “Only if [the contemnor] fails to show [a present ] inability [to pay] is ... subsequent imprisonment permitted.” Jones, 351 Md. at 275-76 , 718 A.2d at 228 (alterations in original) (emphasis added) (internal quotation marks omitted) (quoting Lynch, 342 Md. at 521-22 , 677 A.2d at 590 ). Elucidating this “regimen,” we noted that [t]he procedural component to this restrictive requirement is that any party judged to be a civil contemnor must be afforded the opportunity to show a present inability to purge the [past ] contempt; “Where the order calls for the payment of money, the defendant is entitled to the ‘opportunity to show that he [or she] had neither the estate nor the ability to pay his [or her] obligation.’ ” Jones, 351 Md. at 276 , 718 A.2d at 228 (alterations in original) (emphasis added) (internal quotations omitted) (quoting Lynch, 342 Md. at 521 , 677 A.2d at 590 ) (quoting Johnson v. Johnson, 241 Md. 416, 420 , 216 A.2d 914, 917 (1966)). ⁶⁰³ In other words, if a civil contemnor does not have the present ability to purge, a court cannot incarcerate him or her in the constructive civil contempt proceeding. In the present case, Appellant’s sentence instructed him to report to prison on 1 December 2000 if he was not able to pay the requisite purge amounts (i.e., the full arrearages) and make current payments. The court erred in issuing such an order, for the court cannot order a self-executing prison sentence in this situation, i.e., one that does not first require a hearing to determine whether Appellant possessed the present ability to pay the purge amounts and whether he failed to make the current payments due between the 27 April 2000 order date and the 1 December 2000 compliance date.

In the current case, Appellant, unable to post the cash bond, was incarcerated for 28 days. As a result of his incarceration while awaiting sentencing, Appellant lost his $6 per hour job. Unsure of Appellant’s ability to obtain employment in light of Appellant’s criminal record, Appellant’s attorney asserted during the 27 April 2000 sentencing hearing that: I believe that if The Court would consider.... The Court has already heard that [Appellant] is required to pay [sic ] he has two other children in Delaware which he pays $54 a week for those children.

I’m just concerned about the amounts in which he’d have to