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Maryland Court of Special Appeals sets limits on civil contempt

“The (Montgomery County) court did not impose on mother a fine, period of incarceration, or any other penalty,” Chief Judge Matthew J. Fader wrote for the Court of Special Appeals in striking down the contempt order. (The Daily Record / Maximilian Franz)

People cannot be held in civil contempt for having violated a court order if they have come into compliance with it and intend to remain so, Maryland’s second-highest court ruled Wednesday in lifting a contempt citation from a mother who had briefly refused to return her child to the custodial father.

Civil contempt also cannot be imposed to ensure a person’s continued compliance, but must be withdrawn once compliance is achieved, the Court of Special Appeals held in its reported 3-0 decision on a tool critics say is too readily imposed by trial court judges.

The appellate court added that civil contempt can be imposed neither to punish a past violation of a court order nor to ensure continued compliance, as was the case with the mother.

Montgomery County Circuit Judge Margaret M. Schweitzer found the mother – identified in court papers as Breona C. — in civil contempt on March 31 for having violated a December 2019 custody order last summer by not returning her child to the father for a few days. Schweitzer said the contempt order – which identified no sanction, such as a fine, for noncompliance — would be purged if the mother strictly followed and complied with the custody order.

In striking down the contempt order, the Court of Special Appeals said a civil contempt citation must be designed to ensure compliance, permit the individual to have it lifted upon compliance and contain a specified sanction for noncompliance, all of which were missing in Breona’s case.

“The (Montgomery County) court did not impose on mother a fine, period of incarceration, or any other penalty,” Chief Judge Matthew J. Fader wrote for the Court of Special Appeals.

“Indeed, the only obligation the court imposed on mother in the order was the purported purge provision, which required mother to comply in perpetuity with the December 2019 custody order,” Fader added. “Here, the perpetual obligation to comply with the December 2019 custody order is not a valid purge provision because it does not permit mother to avoid a defined sanction by engaging in specific conduct.”

Paul G. Griffin, an attorney for Breona, praised the appellate court’s decision for telling trial judges and litigators that civil contempt does not apply for past violations of court orders.

He said civil contempt has too often been erroneously sought by attorneys and imposed by judges for a past order violation rather than limited to preventing a continuing violation.

“We have seen it so improperly used throughout the state,” said Griffin, of Child Justice Inc. in Silver Spring.

“We have seen constructive civil contempt weaponized,” he added. “It’s gotten to be so widespread.”

Rather than invalidly imposing civil contempt for past violations, judges may award attorney’s fees against the violating party or modify a custody or visitation order in light of the violation, Griffin said.

Civil contempt is not a benign judicial tool but a “punishment” that can harm a person’s ability to get a job or a security clearance, Griffin added.

The child’s father – identified in court papers as Rodney D. — did not challenge Breona’s appeal of the civil contempt order.

The December 2019 custody order gave Rodney primary physical custody of the child and Breona parenting time every weekend, according to the Court of Special Appeals opinion.

On Saturday, Aug. 1, 2020, Breona picked the child up from Rodney but did not return the youngster, prompting the father to file a contempt petition against the mother on Monday, Aug. 3.

On Aug. 4, Breona sought and received a temporary protective order against Rodney but was denied a final protective order on Aug. 24, thus requiring her to return the child immediately to Rodney as called for under the December 2019 order.

When Breona declined to return the child, Rodney filed an emergency motion Aug. 27, which was granted the following day. Breona returned the child and subsequently complied with the weekend visitation custody order.

Last February, Breona moved to dismiss Rodney’s petition to hold her in contempt. Schweitzer denied the motion, granted the petition and ordered Breona in civil contempt.

Breona then sought review by the Court of Special Appeals.

Fader was joined in the opinion by Judges Douglas R.M. Nazarian and Kevin F. Arthur.

The Court of Special Appeals issued its decision in Breona C. v. Rodney D., No. 299, September Term 2021.