Stevens v. Tokuda , 216 Md. App. 155 ( 2014 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2724
September Term, 2011
DEREK T. STEVENS
v.
YOKO TOKUDA
Eyler, Deborah S.,
Woodward,
Zarnoch,
JJ.
Opinion by Woodward, J.
Filed: February 25, 2014
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 $300.00 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.
On appeal, appellant presents five questions,1 which we have re-phrased into three:
1
Appellant’s questions, as originally phrased, were:
1. Did the circuit court err in finding Stevens in contempt because the
only evidence before the court was that Stevens was not able to pay
(continued...)
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,
1
(...continued)
more in support during the time period in question?
2. Was the original order of contempt invalid insofar as it imposed a
purge provision requiring Stevens to perform actions into the
indefinite future?
3. Was the order incarcerating Stevens for 179 days an impermissible
punitive sanction in a constructive civil contempt proceeding?
4. Was the Circuit Court’s order remanding the matter of Stevens’s
motion to modify to the master improper?
5. Did the Circuit Court err in denying Stevens’s petition for writ of
habeas corpus seeking immediate release from unlawful
incarceration?
2
Appellee did not participate in the instant appeal.
2
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 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
3
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 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,
3
As will be explained infra, the trial court also held a hearing on appellant’s motion
to modify child support.
4
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 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,
5
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 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
6
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 obligation 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.
7
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 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
8
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 (1996) (quoting Unnamed Attorney v. Attorney
Grievance Comm’n, 303 Md. 473, 483 (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 (2003) (citing CJ § 12-304(a) (1973, 1998 Repl.
Vol., 2001 Cum. Supp.); Md. Rule 2-601(b); Md. Rule 8-202(a)), aff’d, 383 Md. 240 (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 (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 (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. The Court traced the
historical evolution of Maryland jurisprudence on the appealability of contempt orders. Id.
at 42-45. Specifically, the Court reiterated that its dictum in Lynch v. Lynch, 342 Md. 509
(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
9
good law. Id. at 45 (emphasis omitted) (quoting Lynch, 342 Md. at 529). The Court held
that, “[e]ven if we were not to regard [a mere contempt finding] as punishment, 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. In Ariel G., the circuit court entered an order finding the appellant in
contempt on August 6, 2001. Id. at 701. 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.
The appellant filed an appeal from only the June 26, 2002 order. Id. at 701, 703. 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 (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
10
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 February 2, 2012 order, because the order did not give appellant
“the present ability to purge the contempt.” Appellant argues that “[i]ncarceration 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 (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 (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
4
Maryland Rule 15-207(e) “applies to proceedings for constructive civil contempt
based on an alleged failure to pay spousal or child support, including an award of emergency
(continued...)
11
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 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
4
(...continued)
family maintenance under Code, Family Law Article, Title 4, Subtitle 5.” Md. Rule
15-207(e)(1).
12
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 (alterations in original)
(quoting Johnson v. Johnson, 241 Md. 416, 420 (1966)).
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, “[i]mprisonment of the civil contemnor is conditional. It is based
entirely upon the contemnor’s continued defiance, and thus, the civil contemnor is said to
hold the keys to the jailhouse door, and may terminate the incarceration any time he or she
satisfies the purge provision.” Id. at 277 (internal citations and quotation marks omitted).
To that end, a court may not impose incarceration as a sanction for civil contempt when the
defendant is unable to meet the purge condition in time to avoid that incarceration. See
13
Arrington v. Dep’t of Human Res., 402 Md. 79, 107 (2007).
In our view, Arrington is dispositive of this issue. There, the named appellant5 was
bound by orders to pay child support to two mothers for his three children. Id. at 82. The
appellant had had intermittent periods of employment but was not consistently earning a full
salary. Id. at 83. The circuit court found that the appellant had the present ability to work,
that he did work during the relevant period, and that he willfully failed to comply with the
court’s support orders; as a result, the court held the appellant in civil contempt. Id. at 84.
The court then directed appellant to carry out future acts—namely, that he pay a lump sum
on each arrearage and continue to pay child support. Id. At a subsequent hearing, one of the
mothers informed the court that the appellant had failed to make the lump sum payments
required under the court’s order. Id. The court then decided, in response to this violation,
to incarcerate the appellant and place him immediately on work release. Id. at 84-85. The
court set the work release itself as the purge provision. Id. at 85. At a later hearing, the
appellant’s attorney objected to appellant’s incarceration, arguing that it was improper,
because the court had not made a finding that the appellant was presently able to meet the
purge provision to avoid incarceration. Id. at 85.
The Court of Appeals vacated the circuit court’s order of incarceration. Id. at 107.
5
The Arrington v. Department of Human Resources decision combined two cases,
Arrington and Marcellas McLong v. Sharon Oliver, which were argued on the same day and
which presented the same issues, causing the Court of Appeals to address the two cases in
a single opinion. 402 Md. 79, 81 & n.1 (2007). All citations to Arrington in this opinion
refer to the contempt case involving defendant-appellant Brian Arrington only.
14
The Court initially noted that the “[p]resent inability to comply with the support order or to
meet a purge established by the court . . . does not preclude a finding of contempt.” Id. at 97
(citing Md. Rule 15-207(e)(2)). The Court then carefully distinguished between merely
making a finding of contempt based on the present inability to pay, which is permissible,
from ordering imprisonment based on the present inability to pay, which is not. See id. at 97-
98. Because the circuit court’s order made it impossible for the appellant to immediately
carry out the purge provision—and thus avoid incarceration—the Court held that the work-
release condition was impermissible. See id. at 107. The Court then discussed in detail
situations where the court requires future acts as a purge condition, rather than the payment
of a sum of money:
If unemployment is the problem, the court, upon
determining the cause, may, under Rule 15-207(e)(4), enter
reasonable and specific directives to deal with it. The court may
order the defendant to pursue employment opportunities in a specific
manner. It may order the defendant to pursue necessary education or
a diploma, degree, certificate, or license that may be necessary or
helpful in making the defendant eligible for meaningful employment.
It may direct the defendant to seek a form of treatment for health or
addiction problems that has a reasonable chance of dealing with the
problem sufficiently to qualify the defendant for meaningful
employment. In all instances, the directives must be specific and
they must be reasonable. The programs must be available and
affordable to the defendant, and they must be relevant to the
objective. The court may order the defendant to report periodically,
and it may monitor compliance. It may modify the requirements as
circumstances warrant. If it appears that the defendant is wilfully
not complying with the directives, the court may cause a criminal
contempt proceeding to be filed, aimed at punishing defiance of
the directives. If, as a result of that defiance, the underlying support
order remains in arrears, the State’s Attorney, if so inclined, may
15
pursue a criminal action under Family Law Article, § 10-203.
Id. at 106 (emphasis added) (footnote omitted).
In the instant case, the circuit court’s February 2, 2012 contempt order was legally
deficient. Although the court could properly require that appellant periodically file job
search logs, it erred by not affording appellant the opportunity at the February 2 hearing to
purge his contempt prior to incarcerating him. As the Court of Appeals has explained:
Sanctions for contempt ordinarily fall into three general categories:
(1) determinate sanctions, which are criminal sanctions, such as a jail
sentence of one year; (2) coercive sanctions, which are civil sanctions,
such as imprisonment until the contemnor complies with an order of
the court or a fine to be applied until the contemnor complies; and (3)
remedial sanctions, such as a civil fine payable to the plaintiff to
compensate the plaintiff for losses suffered as a result of the
contemnor’s non-compliance.
Jones, 351 Md. at 278.
In civil contempt proceedings like in the case sub judice, “‘the sanction is coercive
and must allow for purging.’” Dodson v. Dodson, 380 Md. 438, 448 (2004) (quoting State
v. Roll, 267 Md. 714, 728 (1973)); see also Md. Rule 15-207(e)(4)(C). Indeed, the circuit
court recognized the importance of this purge requirement, when it stated the following
during the February 2 hearing:
THE COURT: Let’s say that . . . you still owe something.
[APPELLANT]: Yes, but also this doesn’t just go about -- just
that -- this finds facts that basically says I don’t
have the ability to pay, okay? I -- I -- the
original reason for me stopping --
16
THE COURT: I understand. That is why I set future acts,
[appellant] --
[APPELLANT]: Yes.
THE COURT: -- because if I say to somebody your purge
provision is to pay as ordered or your purge
provision is to pay X number of dollars in a
lump sum by a certain date, then many times
someone will say, “Well, Judge I’m not
working. I can’t pay” and I have to be able to
find, in order to impose a sanction, that there
is an ability to pay, okay?
So what I did in this case was set
certain acts as purge provisions. That is
providing certain records, information, a log
as a purge provision. The real issue is why
did not you have the ability to do that?
(Emphasis added).
When considering the imposition of the sanction of incarceration, the issue is not why
appellant was unable to submit the log in the past, but whether appellant was presently able
to submit a log, because incarceration requires a present ability to comply with the purge
condition and a willful choice by appellant not to comply in spite of that ability.6 See Md.
Rule 15-207(e)(4). Furthermore, the court’s imposition on appellant of a five-day work
6
This is exactly the situation that the Court of Appeals anticipated in a footnote in
Arrington. The Court explained that, in theory, “it would be possible to coerce compliance”
with requirements like having the contemnor provide job search logs in a civil contempt
proceeding, but a court “would likely run into the same problem of being unable to
incarcerate the defendant unless it could find that the defendant had the current ability to
meet any purge.” 402 Md. at 106 n.14.
17
release program while he was incarcerated is identical in its essential features to the program
that was expressly disallowed by the Arrington Court. See 402 Md. at 85-86, 107.
There was nothing that appellant could do under the court’s order of February 2, 2012
to prevent himself from being incarcerated on that day. Appellant was thus caught in an
impermissibly punitive cycle: in order to purge the contempt, he was required to be in a work
release program; however, in order to be in the work release program, he was required to be
incarcerated. Requiring incarceration as a precondition to purging a contempt order is
erroneous under Rule 15-207(e).
Alternatively, the circuit court could have sent the matter to the Office of the State’s
Attorney, which could then, in its discretion, initiate subsequent criminal contempt
proceedings. See Md. Rule 15-207 committee note (noting that if the contemnor lacks the
present ability to purge the contempt and then fails to comply with future court-ordered
specified acts, “a criminal contempt proceeding may be brought based on a violation of that
provision”). Although we sympathize with the circuit court when it was faced with the
dilemma of multiple instances of contumacious behavior on the part of appellant, the court
could not do what it did in this case: incarcerate appellant without setting a purge provision
with which appellant had the present ability to comply to avoid incarceration. We shall,
therefore, vacate the balance of appellant’s 179-day sentence.
3. The Circuit Court’s Order Remanding Appellant’s Motion to Modify Child Support
Appellant contends that the circuit court erred in its February 2, 2012 order by
18
remanding appellant’s motion to modify child support “for ‘additional evidence and
testimony’ on issues already resolved in [a]ppellant’s favor in the Court’s August 30, 2011
memorandum and the order sustaining his exceptions.” Appellant claims that the circuit
court’s August 30, 2011 “ruling that [appellant’s] child support obligation during the period
covered by his motion to modify was to be determined based on zero actual income” was a
final ruling. According to appellant, Maryland Rule 9-208(i) only permits a circuit court to
“remand a matter to the master for additional evidence . . . where the excepting party sets
forth with particularity the evidence to be offered and the court determines that it should be
considered.” Because appellant “as the excepting party did not ask for a remand for any
additional evidence,” appellant concludes that the court lacked legal authority to order a
remand.
As with the issue of the circuit court’s order of incarceration, our resolution of this
issue requires us to interpret a rule, namely, Rule 9-208, under a de novo standard. See
Rawlings, 362 Md. at 555 n.19.
As a preliminary matter, we note that the circuit court shall refer the “modification of
an existing order or judgment as to the payment of . . . support” to a standing master. Md.
Rule 9-208(a)(1)(H). After receiving a matter on referral, the master shall hold a hearing and
then make a report and recommendations to the circuit court, including factual findings and
conclusions of law. See Md. Rule 9-208(b), (e). A party who disagrees with the master’s
report and recommendations may file exceptions with the circuit court within ten days after
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the recommendations are placed on the record or served on the parties. Md. Rule 9-208(f).
Although we accept appellant’s contention that he did not ask for a remand, we
disagree with his conclusion. Pursuant to Rule 9-208(h), a circuit court “shall not direct the
entry of an order or judgment based upon the master’s recommendations . . . if exceptions
are timely filed, until the court rules on the exceptions.” Md. Rule 9-208(h)(1)(A) (emphasis
added). In this case, the court never issued a final ruling on appellant’s exceptions.
In his exceptions to the master’s report and recommendations, appellant stated that
“[t]here is no testimony to support a finding the defendant has a present ability to pay ~700
[sic] in child support and no testimony to support an arbitrary imputed salary of $50,000.”
Appellant stated further that “the Master [found] only the defendant is not currently
employed and has been laid off since 2009. The [Report] & [Recommendations] made no
finding of impoverishment of any, actual income.” In its August 30, 2011 Memorandum
Opinion, the circuit court sustained appellant’s exceptions in part, explaining its reasoning
as follows:
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.
(Emphasis added). The court concluded that the “Master did not make a finding that
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[appellant] voluntarily impoverished himself,” and that appellant’s “child support obligation
shall be based on his adjusted actual income.” The order accompanying this Memorandum
Opinion, however, stated simply that appellant’s exceptions were “SUSTAINED, in part.”
The order contained no other ruling of the court.
Both the circuit court’s August 30, 2011 Memorandum Opinion and order make clear
that appellant’s child support obligation should not have been $708.00 a month, but neither
document sets forth what appellant’s “new” or “adjusted” actual income, nor what his
adjusted child support obligation should be. Indeed, the court explained at the February 2,
2012 hearing that it never made a final ruling on appellant’s motion to modify child support:
THE COURT: [R]emember[, appellant,] you were actually going to
present some offer of employment. What we basically did is kind
of deferred everything pending -- we wanted to see something to
document.
(Emphasis added). Appellant never filed any such document between August 30, 2011 and
February 2, 2012. Thus the court’s August 30, 2011 ruling remained “pending,” rather than
final. See O’Brien v. O’Brien, 367 Md. 547, 555-56 (2002) (stating that “[m]erely
sustaining, or overruling, exceptions does not end the case in the Circuit Court, and it
therefore does not constitute a judgment, even if the parties and the court believe that, for
practical purposes, the case is over”).
In addition, appellant himself acknowledged that the court’s August 30, 2011 Order
was not final. Appellant filed an “Ex-Parte Motion for Relief” on December 28, 2011, in
which he stated that he “ha[d] yet to receive a child support order” after the circuit court
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sustained his exceptions in part and sought, in pertinent part, “finality . . . as a matter of
law.”
The circuit court responded to appellant’s request for a final order by holding a
hearing just over a month later on February 2, 2012. Instead of issuing a final ruling at the
conclusion of the February 2 hearing, the court decided that appellant’s motion to modify
child support should be remanded to the master “for the purpose of taking additional
evidence and testimony on those particular issues.” This was proper, in our view.
The Court of Appeals has previously explained that
[u]pon consideration of an exception, the court normally
will come to one of three conclusions—that the exception has no
substantive merit and that the court should act in conformance with
the master’s recommendation, that the exception has some
substantive merit and that the court should therefore reject the
recommendation, in whole or in part, and make a different ruling,
or that there is or may be merit to the exception but that some
further proceeding is required before a final ruling is appropriate.
O’Brien, 367 Md. at 555 (emphasis added); see also Levitt v. Levitt, 79 Md. App. 394, 399
(1989) (explaining that the circuit court “may remand to the Master or . . . conduct a de novo
hearing, [ ] so that a sound factual base exists for the [court’s] ultimate determination”), cert.
denied, 316 Md. 549. That is precisely what happened here: the circuit court concluded that
there was merit to appellant’s exceptions, but determined that “some further proceeding is
required before a final ruling is appropriate.” O’Brien, 367 Md. at 555.
Appellant asserts, nevertheless, that the remand was not authorized by Maryland Rule
9-208(i)(1), which provides that
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[t]he exceptions shall be decided on the evidence presented to the
master unless: (A) the excepting party sets forth with particularity the
additional evidence to be offered and the reasons why the evidence
was not offered before the master, and (B) the court determines that
the additional evidence should be considered. If additional evidence
is to be considered, the court may remand the matter to the master to
hear and consider the additional evidence or conduct a de novo
hearing.
Rule 9-208(i)(1), however, governs the specific situation where the excepting party seeks to
introduce new evidence that was not presented to the master; it does not govern the situation
where, as here, the court determines that a remand is necessary for the master to consider
further evidence. Such authority to remand to the master prior to a final ruling is derived
from Maryland case law. See O’Brien, 367 Md. at 555-56; Levitt, 79 Md. App. at 399.
Finally, at oral argument before this Court, appellant asserted that the circuit court
implicitly found that appellant owed $0.00 in monthly child support going back to December
17, 2010, when appellant filed his motion to modify child support. We disagree.
As previously indicated, the trial court did not make a final ruling on appellant’s child
support obligation as a result of the court’s sustaining, in part, his exceptions to the master’s
report and recommendations. Even if the court had made such ruling, we cannot conclude
that it would have automatically reduced the obligation going back to the date of the filing
of appellant’s motion to modify. Under Maryland law, “‘[t]he court may not retroactively
modify a child support award prior to the date of the filing of the motion for modification.’”
Krikstan v. Krikstan, 90 Md. App. 462, 472-73 (1992) (quoting Md. Code (1984, 1991 Repl.
Vol.), § 12-104(b) of the Family Law Article). However, “[t]he decision to make a child
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support award retroactive to the filing of the [relevant motion] is a matter reserved to the
discretion of the trial court.” Petitto v. Petitto, 147 Md. App. 280, 310 (2002). Thus the
court had the discretion to reduce appellant’s child support obligation retroactive to
December 17, 2010, or retroactive to any other date between the date of the filing of
appellant’s motion and the court’s final ruling on the motion. On the record before us, we
cannot say what the trial court would have done on the retroactivity issue.
Therefore, in the absence of a final ruling on appellant’s motion to modify child
support, and consistent with Maryland case law, we hold that the circuit court did not err by
remanding such motion to the master for the taking of further evidence .
BALANCE OF THE 179-DAY SENTENCE OF
INCARCERATION ORDERED BY THE
CIRCUIT COURT FOR CARROLL COUNTY
ON FEBRUARY 2, 2012 VACATED; ORDER
AFFIRMED IN ALL OTHER RESPECTS.
CARROLL COUNTY TO PAY COSTS.
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