Civil contempt ruling continues to baffle Md. family law attorneys

“Attorneys are really confused,” says Laurie Wasserman, of the Law Office of Laurie M. Wasserman in Towson. “It’s been difficult since (the Breona C. decision) to advise our clients as to what the right thing is to do in these situations.” (Submitted Photo)

Nearly a year after Maryland’s second-highest court ruled that people cannot be held in civil contempt for having violated a court order if they subsequently complied with it, family law attorneys are still trying to get their bearings in a changed legal landscape.

“Lawyers are basically shaking their heads,” Mary Roby Sanders, of Turnbull, Nicholson & Sanders in Towson, said of the Court of Special Appeals’ Nov. 17, 2021, reported decision. “It has gutted the ability of the court to enforce its orders.”

The appeals court ruled in Breona C. v. Rodney D. that civil contempt cannot be imposed to punish a past violation of a court order. Instead, civil contempt must be withdrawn once compliance is achieved; it also cannot be imposed to ensure a person’s continued compliance.

Family law attorneys say the ruling has deprived them of a crucial mechanism in cases where a parent does not abide by court orders, particularly those regarding child access, or visitation. Post-Breona C., a parent who flouted a court order to return a child to the other parent at a specified time cannot be found in contempt if he or she eventually did return the child — even right before the contempt hearing.

“Contempt was always the most efficient, direct path toward enforcing compliance with a court order,” said James Milko, of Trainor, Billman, Bennett & Milko in Annapolis. The appeals court’s decision, he said, “takes a really important tool out of the toolbox that attorneys used on behalf of our clients.”

Moreover, Milko said, the decision is counterintuitive.

“It allows someone to potentially escape the consequence of violating a court order,” he said. “It certainly doesn’t promote future compliance.”

The Court of Special Appeals decision said a civil contempt citation must impose a sanction, include a purge provision that gives the contemnor the chance to avoid the sanction by taking a specific action, and be designed to coerce the contemnor’s future compliance with a court order. However, a contemnor cannot be required to comply in perpetuity with a court order, according to the Breona C. decision.

“Attorneys are really confused,” said Laurie Wasserman, of the Law Office of Laurie M. Wasserman in Towson. “It’s been difficult since (the Breona C. decision) to advise our clients as to what the right thing is to do in these situations.”

Continued Wasserman: “The question becomes, if we file for contempt for a repeated pattern of conduct and someone complies the day before (the hearing), what do we do? Do we amend, do we dismiss, do we plead in the alternative?”

“It allows someone to potentially escape the consequence of violating a court order,” says James Milko, of Trainor, Billman, Bennett & Milko in Annapolis, of the Court of Special Appeals ruling. “It certainly doesn’t promote future compliance.” (Submitted Photo)

Sanders said family law attorneys were trying to “develop teeth” for the enforcement of court orders after the Breona C. ruling.

“We file things like a motion to enforce a court order or a motion for makeup time, none of which had to be done before,” she said.

Milko pointed out that a contempt hearing for a parent not in compliance with a visitation order could take place fairly quickly, usually within 60 days. But other legal options, he said, take more time.

“If contempt is not a remedy because a person comes back into compliance, the only other option is to file some other type of family law petition, a modification of the court order because of these violations,” he said. “That is an ordeal. The scheduling of those things takes forever compared to a show-cause contempt hearing.”

In addition, the changes wrought by the Breona C. ruling are particularly hard on clients of limited means, Milko said.

Pre-Breona C., a court could award fees to a client if the other parent  violated a visitation order and was found in contempt, he said. Today, the same client — who is spending $400 an hour for his services — could wind up seeing the other parent comply with the court order at the last minute and be let off the hook for any payment.

“I worry about that,” Milko said. “I struggle with these things and I’ve been in practice 29 years.”

Mary Roby Sanders, of Turnbull, Nicholson & Sanders in Towson, says the Court of Special Appeals’ Nov. 17, 2021, reported decision “has gutted the ability of the court to enforce its orders.” (Submitted Photo)

In a footnote, the Court of Special Appeals wrote that, in the Breona C. case, it was not dealing with a continuing or repetitive pattern of conduct that violated a court order. In a case involving such conduct, the court said, it did not rule out the possibility of issuing an order of constructive civil contempt.

Milko expressed frustration.

“Why should somebody have to wait until there’s a pattern?” he asked.  “Shouldn’t a court order be sacrosanct from the get-go?”

The Maryland chapter of the American Academy of Matrimonial Lawyers will hold a symposium on Oct. 10 featuring a discussion of the Breona C. v. Rodney D. decision by a panel of judges.