Maryland Family Law Maryland family law opinions and commentary
Expressing its sympathy for the judge below, the Court of Special appeals nevertheless vacated the sentence given to a man who refused to show he was looking for work in order to meet his obligation to pay court-ordered child-support.
The purge provision was defective because it did not give Derek T. Stevens any chance of avoiding immediate incarceration, the appellate panel held.
Stevens had been ordered in October 2010 to make payments on his child support arrears and to submit employment logs to show he was looking for work. However, he stopped complying in early 2011 and filed a motion to modify child support, according to the Court of Special Appeals’ opinion.
The case went to a master and Stevens filed exceptions to the master’s report. In August 2011, the court sustained his exceptions, but did not set a new amount because, the court noted, “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 obligations.”
That never happened, and in February 2012, the circuit court once again found Stevens in contempt and ordered him to spend 179 days in prison. However, it granted him a five-day furlough each week to go out and look for work, and to report to the court if he found any.
He was sent to the Carroll County Detention Center on Feb. 2, 2012, filed an appeal and was released on March 29, 2012.
The Court of Special Appeals has now vacated the rest of his 179-day sentence, finding the sanction was defective under the Court of Appeals’ decision in Arrington v. Dep’t of Human Res., 402 Md. 79 (2007).
“[T]he court’s imposition on appellant of a five-day work release program while he was incarcerated is identical in its essential features to the program that was expressly disallowed by the Arrington Court,” Judge Patrick Woodward wrote for the three-judge panel.
“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).”
If the court wanted, it could have sent the matter to the Office of the State’s Attorney, which could then, in its discretion, initiate subsequent criminal contempt proceedings, Woodward noted.
“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,” Woodward wrote. “We shall, therefore, vacate the balance of appellant’s 179-day sentence.”
Stevens had also asked the appeals court to find that the order of October 2010 was an impermissible purge provision of future acts. However, the court found he had not filed a timely appeal from that order.
It also upheld the circuit court’s decision to remand Stevens’ motion to modify child support, over his objection that the matter had already been decided in his favor. While the circuit court had sustained some of his objections, it had never determined what the new obligation should be, and thus a remand was required, the Court of Special Appeals held.
WHAT THE COURT HELD
Case:
Issue:
Did the Carroll County Circuit Court err in imposing a purge provision for constructive civil contempt in a child support case?
Holding:
Yes; balance of 179-day term vacated; ruling otherwise affirmed.
The sanction, under which appellant would be jailed for 179 days but given a five-day work-release furlough to seek employment and thereby lift the sanction, was impermissibly punitive, as incarceration was a precondition of the purge provision.
RecordFax # 14-0225=03, 25 pages.
