Bryant v. Social Services
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In the Circu it Court for H oward C ounty Case No. 13-C-96-32892 IN THE COURT OF APPEALS OF MARYLAND No. 93 September Term, 2004 ______________________________________ JOSEPH DAVID BRYANT v. HOWARD COUNTY DEPARTMENT OF SOCIAL SERVICES EX REL. CASSANDRA COSTLEY ______________________________________ Bell, C.J. Raker Wilner Harrell Battaglia Greene Eldridge, John C. (Retired, Specially Assigned), JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: May 12, 2005 The ability of a court to enforce child supp ort orders en tered by it is often d ifficult and frustrating. In many cases, the court must invoke, as a last resort, its power to punish a wilfully non-compliant parent for contempt, but when the exercise of that power involves incarceration deprivation of the parent s liberty it is subject to certain circumscribing conditions and limitations. In 1997, through the adoption of Maryland Rules 15-201 through 15-208, we tried to set out criteria for the proper exercise of the pow er of conte mpt, in both its coercive and pun itive aspects. In this case, the court did not follow the requirements and, as a resu lt, it entere d an ord er that w e shall b e oblige d to vac ate. BACKGROUND Jasmine B. was born out of wedlock in December, 1993. In November, 1996, the Howard County Department of S ocial Servic es (DSS ), which w as then paying public assistance to her moth er, Ms. Co stley, filed a petition in the Circuit Court for Howa rd Coun ty to declare appellant to be Jas mine s fath er and to ord er him and Ms. Co stley to pay child support. Though she was the custodial parent, Ms. Costley was made a defendant because she refused to sign an oath naming the child s f ather. See Maryland Code, § 5 -1010(d)(3 )(ii) of the Family Law Article. After a hearing bef ore a domestic relations m aster, during which appellant acknowledged paternity, the court, on February 24, 1997 , entered an o rder that, among other things, declared appellant to be Jasm ine s father a nd ordere d him to pa y child support in the guideline amount of $189/month plus an additional $20/month against an arrearage of $569. Appellant paid little attention to that order and, by July, 1998, had incre ased his arrearage to $3,306. W hen face d with the possible loss of his driver s license as a result of that arrearage, he entered into a stipulation and payment agreement, under which he agreed to resume monthly child support of $189 and to pay, in addition, $92/month toward the arrearage. That stipulation was incorporated into a court order entered on August 4, 1998. Appellant was as non-compliant with that order as with the first one. By Dec ember, 2001, his arrearage stood at $11,181, and DSS petition ed to ha ve him held in c ontem pt. The petition, though ca ptioned an d filed in the civil patern ity proceeding , asked, as the only sanction for contempt, that appellant be sentenced to a period of incarceration not to exceed [180] days, without regard to any provision for purging the contempt, which is a criminal penalty not available in a civil contempt proceeding.1 After a hearing, the domestic relations master ordered appellant to participate in the Absent Parent Employment Program and the court entered an order to that effect on February 28, 2002. Th at order requ ired appellan t to report to the program on a weekly basis, commencing March 11, 2002, and to accept any employment obtainable under the program. If no employment was so obtainable, appellant was ordered to c onduct a minimum of eight job contacts per week and to continue reporting to the program until released. After a subsequ ent hearing before the master on April 26, the 1 Notwithstanding its request for a criminal sanction, the petition must be regarded as one for civil contempt. Apart from the fact that it was filed in the civil proceeding, DSS has no author ity to file a p etition fo r crimin al conte mpt. Compare Maryland Rules 15-205(b) and 1 5-206(b). -2- court, on May 12, 2002, ordered appellant to continue monthly support payments of $189 and to pay an additional $47/mon th toward an arrearage that then amounted to $11,685. Resolution of the contempt issue was deferred until June 3, 2002. Because appellant arrived late, the master was unable to proceed with the hearing on June 3, and instead scheduled a hearing before a judge on June 27, 2002. Appellant was advised in writing that, if he desired counsel, he should contact the Office of the P ublic Defender by June 12, 2002. App ellant did not heed that advice and showed up in court on June 27 without counsel. He said that he intended to retain private counsel but, by the time he realized he could not affo rd a private attorney, the June 12 dead line had passed. The court was obviously not impressed, found no meritorious reason, and therefore proceeded with the hearing. Appellant did not contest the arrearage or seek to have either the arrearage or the amount of support reduced. From what he said and from what he implied, it was evident that he had a history of drug abuse, that he had been incarcerated a number of times, including for distribution, and that he had been in various rec overy progra ms, trying to get h is life in order. The transcript reveals that, at times, he was crying during his testimony. He said that he had tried to o btain emp loyment but th at, with his criminal record, he had difficulty finding a job. He informed the co urt that he had recently managed to get two jobs, at least one of which w as tempor ary, and, althoug h he did not seem to know much about the jobs, he said that he was to be paid, from each, about $8/hour. Appellant said that Jasmine and her mother -3- then lived in Georgia, and that when the mother indicated that she needed something for the child, he tried to sup ply it, although h e understo od that volu ntary gifts or paym ents did not discharge his child support obligation. Appellant advised the court that he was then on probation in another ca se in the Circ uit Court. DSS noted that appellant had been employed and had earned over $6,000 in 2001, but that he had made no payment toward his child support. Appellant responded that he was homeless in 2001 and had spent his earnings on hotel rooms and for food for his two other children. On June 27, 2002, the court entered an Order for Probation that referenced the same case number as the paternity action but was captioned State of M aryland v s. Josep h Bryan t. No such case or file existed and none was created as a result of that order. The order stated that the execution of the sentence of [blank] has been suspended for the offense of . . . contem pt. It purported to place appellant on Supervised Probation for a period of 18 months, effective June 27, 2002, and, in addition to the conditions usually found in probation orders entered in criminal cases, including reporting to his probation agent as directed and informing the agent of any subsequent arrest, made reference to an addendum. That addendum, which also referenced the paternity action case n umber, required that appellant pay all fines, costs, restitution, and fees as ordered by the court, totally abstain from alcohol and drugs, submit to alcohol and drug testing, attend NA self-help group meetings, and -4- obtain sponsor + home group w/in 30 days + m aintain. 2 The Order is signed by appellant but is not dated or witnessed. The addendum is not signed by appellant; indeed, the preprinted C onsent p aragraph is lined out. The next day, the court entered another order, in the paternity case, that was captioned Order For Constructive Civil Contempt. Among other things, the court, in that order, (1) declared a current arrearage of $12,189, (2) found appellant to be in contempt of the May 12, 2002 order, (3) se ntenced appellant to 1 80 days incarc eration in the Howard Coun ty Detention Center, (4) suspended all but 30 days of that sentence, (5) directed that appellant report to the coun ty sheriff on Aug ust 3 0, 20 02, to begin serving the unsu spen ded 30 days of the sentence, (6) decreed that, upon payment to DSS of a purge amount of $1,000 on or before August 29, 2002, appellant would be released from service of that part of the sentence, (7) declared that service o f the rema ining 150 days of the sentence was suspended on cond ition that appe llant pay DSS $189/m onth child su pport and $47/mo nth against the arrearage, and that, upon payment in full of the arrearage, the contempt would be purged, and (8) directed that appellant comply with all of the conditions specified in the attached addendum to this Order. One problem with that last, eighth, provision, ap parently 2 The las t-noted directiv e was in cluded in the or der by ha ndwr itten inter lineation . In remarks from the Bench, the court told appellant that he was to attend NA as directed, and you re to obtain a sponsor and a home group at NA within 30 days of this order and maintain it. Because it is the written order, rather than the court s often untranscribed remarks, that constitutes the effective requirement, the order should have been more clear just what appellant was directed to do. -5- unnoticed by anyone, is that there was no addendum attached to the June 28 order. There was an addendum attached to the June 27 Order for Probation, but neither that addendum nor the June 27 Order of Probation was attached to the June 28 Order for Const ructive Civil Contempt. No appeal was no ted from either order. On Septemb er 16, 2002 , the Division of Parole and Probation, which assumed supervision of appellant pursuant to the June 27 order, filed a Request for a Warrant in the Circuit Court, allegin g that the defendant had violated three conditions of probation by failing to report to his probation officer as instructed, failing to report for drug testing 11 times, and failing to provide proof of attendance at self-help meetings or acquisition of a home group or sponsor. Two days later, the Circuit Court judge entered an order, in the paternity case, directing the issuance of a bench warrant for appellant s arrest and setting a full cash bond of $10,000. It was not until July, 2003, that the county sheriff was able to locate appellant, however. He had been arrested in Anne Arundel County on two charges of possession of CDS paraphernalia and an additional charge of making a false statement to a police officer and was being he ld in the An ne Arun del Coun ty Detention C enter. On J uly 8, appellant was transferred to the Howard County Detention C enter. 3 On August 7, 2003, the Division of Parole and Probation , respondin g to the arrest in Anne Arundel County, added two more alleged violations of the probation appellant s 3 It is not entirely clear w hether app ellant s deten tion in the H oward C ounty Detention Center was pursuant to the warrant issued in this case or one issued in the separa te crimin al case, in which appella nt was also on probat ion. -6- failure to obey all laws and failure to adv ise his probation officer of h is arrest. The court then, on August 7, 2003, entered an order in the paternity case but showing the docket number of that case as Criminal No., directing appellant to show cause w hy he should not be held in contempt of the June 27, 2002 order. With the assistance of the Public Def ender, appellant moved to dismiss the pending contempt proceedings on the ground that the case was one of alleged civil contempt and that none of the alleged violations constituted a proper contempt allegation in a civil non-support case. Relying on Rawlings v. Rawlings, 362 Md. 535, 766 A.2d 98 (2001) and Maryland Rule 15-207, appellant maintained that the conditions set forth in the June 27 Order for Probation, which he allegedly violated, were not proper conditions in a civil child support case. In argument on his motion, he added that [n]one of the alleged violations has anything to do with a f ailure to pay child support, failure to be employed, or failure to se ek emplo yment and that the court had no authority to impose those conditions in a civil non-supp ort contem pt case. Ap pellant, perso nally, filed a sepa rate response, in which he contended that his girlfriend had notified the probation o fficer of h is arrest and that he had not been convicted of any of the Anne Arundel County offenses. Although the current p roceeding had bee n triggered by a report and requ est for a warrant filed by the Division of Parole and Probation, the response to the Pub lic Defender s motion came from DSS, which looked not to the June 27 Order for Probation but to the June 28 Order for Constructive Civil Contempt. It contended that the alleged violations were of that order and constituted a contemp t separate from the f ailure to pay child support. D SS did -7- not respond to appellant s pro se filing. The court held a brief hearing on September 12, 2003, at which, in addition to some amplification of the legal arguments, the court was advised that appellant had no money and that he had been incarcerated since July 8, both in this case and pursuant to a violation of probation charge in the separate criminal case in Howard County. On October 9, 2003, the court entered an other Ord er for Co nstructive C ivil Contem pt in which it (1) found appellant to be in contempt of the June 28, 2002 order, (2) directed that appellant not be further incarcerated, (3) terminated the conditions specified in the addendum to the Order for Constructive Civil Contempt dated June 28, 2002, (3) declared that the remaining conditions of the aforementioned order for Constructive Civil Contempt . . . remain in fu ll force and effect, and (4) ordered that appellant inform DSS, in writing and within 10 days, of any change in his address. The court had explained at the hearing that the point of the drug testing and self-help conditions, upon which the finding of contem pt was based, was to assist [appe llant] in his eff ort to remain dru g free, and most imp ortantly, the goal w as to keep him emp loyed so that he could con tinue to pay ch ild support. A ppellant w as ultimately released from incarceration on October 23, 2003. Appellant noted an appeal from th e October 9 orde r, and we granted certiorari on our own in itiative pr ior to an y substan tive pro ceedin gs in the Court o f Spec ial App eals. DISCUSSION -8- What Is Before Us Before addressing the substantive issues raised by the parties, it is important to define what is actually before us and whether it is properly before us. As we read the record, the Circuit Cou rt has abr ogated, p rosp ectiv ely, all of the conditions to the probation enunciated in the June 27 Order for Proba tion and the addendu m that wa s attached to it, including the drug testing and self-help requirements. The only co nditions that re main in effect are those included in the June 28 Order for Constructive Civil Contempt, and even those conditions were substantially mo dified. The June 28, 2 002 Ord er for Co nstructive C ivil Contem pt, as noted, sentenced appellant to 180 days in jail, suspended all but 30 days, directed that appellant report to the sheriff to serve those 30 days on August 30, 2002, unless he paid a purge amount o f $1,000 p rior to that date, and directed that appellant would be released from serving the suspended 150 days if he paid $189/month child support and $47/month on the then-existing arrearage. In declaring, in its October 9, 2003 o rder, that no further inca rceration of [appellan t] is ordered, th e court eff ectively abroga ted the sen tence imp osed in the June 28 order and any prospect th at appellant w ill have to serve any part of that sentence. Only two things thus remain. First, even though it abrogated those conditions prospectively as well as any prospect of enforc ing them th rough inc arceration, the court purp orted to hold appellant in contempt for failing, pr ior to October 9, 2003, to undergo drug testing and to attend NA selfhelp meetings, a s directed in the addendum to the June 27 order. Because, in announcing that -9- finding of contem pt, the court ref erred to the non-existent adden dum to the June 2 8 order, it is not clear that its finding of contempt was effective, even if valid, but, as the court s intent seems clear and appellant has not raised that as an issue, we shall, for purp oses of this appeal, treat the finding of contempt based on those two con ditions as at lea st facially effective. The seco nd directive that remains in effect is the renewal of the order that appellant pay the $189/month child support and the $47/month on the arrearage. It does not appear that appellant is challenging the seco nd aspect of the O ctober 9 order. As noted, he has never complained about either the setting of the child support or the arrearage. The only issue he has raise d, the refo re, is whe ther the c ourt had auth ority, in June, 2002, to impose the two conditions on which the October 9, 2003, finding of contempt was based. Appealability/Mootness The State s initial response to that issue is that the appeal should be dismissed. It urges, first, that as appellant has never been incarcerated or otherwise sanctioned a nd, as matters now stand, cannot be incarcerated, there is no app ealable judgment. A part from the declaration of no incarceration, the 18-month period of probation ordered in June, 2002, to which the two conditions were attached, has expired , which, in the State s view, renders the issue raised by appellant moot. The State also views the June 27 order as a consent order, from which n o appeal is permissible in any event. Finally, it argues that the two conditions were permissible and that a finding of contempt for their wilful violation was valid. -10- Appellant views the two conditions as jurisdictionally deficient, permitting him to challenge them at any time. Though tacitly recognizing that any argument regarding p ossible future incarceration may be moot, he urges, without any documentation, that the approach taken in his case, of attaching drug testing and rehabilitation conditions to a probation th at, in his view, have nothing to do with his paying child support, is commonly used by the Circuit Court for Howard County, that the issue will arise again, and that the Circuit Co urt needs to be instructed that it may not use that approach. The question, then, is whether the appeal is a permissib le an d sus taina ble o ne, n ame ly, whether the appeal is from a non-appealable consent order, whether an appeal lies from a contempt finding that is unaccompanied by any sanction, and whether, even if the order was initially appealab le, the issue raise d by appellant the validity of the finding of contempt based on non-compliance with the drug testing and rehabilitation requirements has since becom e moo t. The October 9, 2003 order that embodied the finding of contempt was approved by appellant s counsel as to form, but it certainly was not consented to by either counsel or appellant. The two conditions at issue drug testing and attending NA self-help meetings emanated from the addendum that was attached to the June 27 O rder for Pro bation, to which appellant, uncounseled at the time, did consent and from which he did not appeal. Although it is true th at, ordin arily, a party may not appeal from a judgment to which he/she consented see Franzen v. Dubinok, 290 Md. 65, 68 , 427 A.2d 100 2, 1004 (1981), -11- Merca ntile Trust Co. v. Schloss, 165 Md. 18, 24, 166 A. 599, 601-02 (1933) it is also clear that a party may not validly consent to a criminal sentence that is unlaw ful. See Holmes v. State, 362 Md. 190, 195-96, 763 A.2d 737, 74 0 (200 0) and c ases cite d there. If, as urged by appellant, the conditions at issue were, when first imposed, in the nature of criminal sanctions and, as such, not permissible in a civil contempt proceeding, they would, indeed, constitute an unlawful criminal sentence to which no consent could be valid. The consent issue thus hinges on the substantive one. As to whether an appeal may be taken from a finding of contempt unaccompanied by any sanction, the law generall y, and the jurisprudence of this Court in particular, have shifted. In Kelly v. Montebello Park Co., 141 Md. 194, 196, 118 A. 600, 601 (1922), this Court observed that, at common law , a court of competent jurisdiction was the sole judge of contemp ts against its auth ority and dignity an d that its judgm ent in such cases was fina l, conclusive, and not reviewable in any other tribunal unless such review was authorized by statute. The Court at least suggested, however, that the unreviewability of contem pt orders in Maryland, in the absence of a statute, was limited to findings of criminal contempt, which was the nature of the order then before the Court. That view was confirmed in Ex Parte Sturm, 152 Md. 114, 124-26, 136 A. 312, 316 (1927) (holding, in absence of statute, order of criminal contempt not appealable). At its next session, the General Assembly, by 1927 Md. Laws, ch. 593, added to the list of equity orders from which appeals may be taken, an order remedial in its nature adjudging in contempt of Court any pa rty to a cause or any person -12- not a pa rty thereto ( excep t orders p assed re quiring the paym ent of a limony). In Pocketbook Workers v. Orlove, 158 Md. 496, 148 A. 826 (1930), the C ircuit Court had entered a preliminary injunction in a labor dispute, enjoining the defendants from picketing and engaging in certain other concerted activity. The court thereafter made the injunctions permanent and also found the defendants in contempt for violating the preliminary injunction. B ecause it fo und the vio lations not to b e intentional, h oweve r, it imposed no punish ment. Th is Court entertained an appeal fro m the injunctions, which were vacated as being too broad, but dismissed an appeal from the contempt orders on the ground that, even under the statute, the right of appeal supposes the existence of some injury from the orders to be redressed by appeal. Id. at 505, 1 48 A. a t 829. Because no punishment had been imposed on the contempt, the Court did not regard the defendants as having been injured. In Mitchell v. Mitchell, 61 Md. Ap p. 535, 487 A.2d 680 (1985), the C ourt of Special Appea ls followed that approach, as it was required to do, and dismissed an appeal from a finding of contemp t devoid of any punishm ent. A facially similar ruling was ma de in Director o f Fin., Pr. Ge o s Co. v. C ole, 296 Md. 607, 465 A.2d 450 (1983), although the actual basis for that ruling was not entirely the same as in Pocketbook Workers, which was not cited by the Court. In November, 1980, the District Court ordered the Director of Finance of Prince George s County to return money that had been seized in a gambling raid. The order was never served on the Director, who also had not been notified of the motion seeking the return of the money and w as not in court -13- when the order was issued. Nonetheless, on April 2 , 1981, the c ourt orally held the Director in contemp t of court fo r failing to retur n the money. No sanction or purge was mentioned in the oral ruling. That same day, the Director noted an appeal from the oral finding of contemp t. The next day, the court entered a written order of contempt that did contain a sanction and purge provision, but no appeal was taken from that order. This Court dismissed the Director s appeal from the oral ruling on the ground that it was premature, as not being from a final judgment in the m atter. In explaining why the appeal w as premature, the Co urt noted that the oral ruling, which contained no sanction or purge p rovision, did not cons titute a contempt order from which an appeal may properly be taken. Id. at 613, 465 A.2d at 454. The heart of the decision was that the oral ruling on April 2 was not intended to be a final disposition o f the matter, a s evidenced by the fact that, in failing to provide for a sanction and purg e, it was not a complete recitation of the court s ultimate ruling. The court obviously understood that a sanction and purge were necessary if the contempt finding was to be effectiv e and enf orceable, as those prov isions were included in the written order filed the next day. The oral ruling was nothing more than a preliminary announcement of a partial decision, from which no appeal will lie. The 1927 statute was substantively rewritten in 1957 (See 1957 Md. Laws. ch. 399, § 4) and now appears as Maryland Code, § 12-30 4(a) of the Cts. & Ju d. Proc. Article. It provides, subject to the exception for a co ntempt based on the violation of an interlocutory order for the payment of alimony, that [a]ny person may appeal from any order or judgment -14- passed to preserve the pow er or vindica te the dignity of th e court and adjudging him in contempt of court. It is no longer part o f a statute dea ling just with e quity orders an d on its face, plainly applies to both criminal and civil contempts, so the distinction in that regard seemingly drawn in Kelly and Sturm no longer would be valid. The only issue is whether the view expressed in Pocketbook Workers and Mitchell still pertains tha t a condition to appealab ility under the statute is the existence of some injury and that a mere finding of contempt devoid of any punishment does not suffice. That view, we think, was modified in Lynch v. Lynch, 342 Md. 509, 677 A.2d 584 (1996). In Lynch, the defendant was found in civil contemp t for failure to p ay child suppo rt. The court senten ced her to 2 0 days in the de tention center but provided that the contempt could be purged by the payment of $500. The Court of Special Appeals affirmed the finding of contemp t but, after conc luding that th e evidenc e was leg ally insufficient to show that she had the ability to purge the contem pt, vacated the sanction. T his Court w ent further a nd held that, absent a showing that the defendant could, in fact, meet a purge, no finding of contempt was permis sible. That aspect of the decision has been overturned, in non-support cases, by the subseq uent ad option of M aryland R ule 15- 207(e) . See Comm ittee Note to Rule 15-207; Rawlings v. Rawlings, supra, 362 Md. at 552-53, 766 A.2d at 107-08. The part of the decision that remains extant and enduring, however, is the further conclusion that a finding of contempt, where there is no possibility of enforcing compliance with the co urt order to which it relates, simply labe ls the defen dant a contemnor and im putes guilt to him or her. -15- That is a form of punishment. Id. at 529, 677 A.2d at 594 (emphasis ad ded). That conclusion is entirely valid. A f inding of c ontempt, even without the imme diate imposition of punishment or sanction, leaves the defendan t adjudged to have w ilfully violated a court order and may well leave the defendant subject to future punishment at the will of the cou rt. The adjud ication itself is and will remain a matter of public re cord, readily accessible, and may w ell affect the d efendan t s ability to obtain employment, licenses of one kind or anot her, hou sing, ins urance , or othe r benef its or opp ortunitie s. See Williams v. Williams, 63 Md. App. 220, 226, 492 A.2d 6 49, 651 (1985 ), aff d, 305 Md. 1, 501 A.2d 432 (1985). Even if we were not to regard that as punishment, the plain wording and a common sense reading of § 12-304 indicate an in tent to permit an appeal from the adjudication of contempt itself, without regard to whether an immediate sanction is imposed. The appeal is allowed from any order or judgment passed to preserve the pow er or vindica te the dignity of the court and adjudging him in contempt of court. Maryland Code, § 12-304(a) of the Cts. & Jud. P roc. Article (e mphasis a dded). Th e statute doe s not require that the order be accompanied by an immediate sanction. For those reasons, we hold that the October 9, 2003 order was appealable, and for the same reasons, we conclude that the appeal is not moot. The adjudication of contempt remains on the record. Validity of the Contempt Finding In State v. Roll and Scholl, 267 Md. 714, 298 A.2d 867 (1973), we observed that the -16- contempt power was an ancient one and that its modern-day application was often misunderstood. In an effort to set forth some basic ground rules, we noted that there was a form of grid into w hich conte mpt proce edings m ight fall: contemp t could be c riminal or civ il and it could be direct or constructive, leaving the prospect of a direct c riminal c ontem pt, a direct civil contem pt, a construc tive criminal c ontempt, an d a constru ctive civil con tempt. The alleged contempt here was clearly constructive, rather than direct, so we need not dwe ll on the distinctions between those two forms and may, instead, look only at the civil and criminal varieties. In an attempt to define some boundaries, we observed in Roll and S choll that a civil contempt is intended to preserve and enforce the rights of private parties to an action and to compel obedience to orders entered prim arily for their ben efit. Civil contempt proceedings are therefore re medial an d coercive in nature. Th ey are intended not to punish for past misconduct inflicted against the court but to force present or future compliance with the court s orders. Thus, a penalty for civil contempt, if it is to be coercive rather than punitive, must provide for purging; it must permit the defendant to avoid the penalty by some specific conduct that is within the defendant s ability to perform. Criminal contempt, on the other hand, is pu nitiv e, no t coe rcive, in n ature. It is prec isely to punish past disobedience and therefo re does not req uire a pu rging p rovision . We recognized in Roll and S choll that the line between civil and criminal contempt was frequently hazy and indistinct, and that there remained the confusing prospect of -17- conduct embracing aspects of b oth kin ds. See id. at 728, 298 A.2d at 876. Apart from occasional ambiguity in pigeonholing past misconduct, there are also situations, which frequently arise in the conte xt of enfo rcing supp ort orders, in w hich the co urt desires to achieve both objectives, of punishing past misconduct through criminal contempt and enforcing com pliance in the future through a coercive civil contemp t order. In 1997, we attempted to bring some greater procedural clarity to the exercise of the contempt power, p articularly in support enforcement cases, through a rewriting of the Rules governing contempt proceedings. In Rule 15-205, we directed that a proceeding for constructive criminal contempt be docketed as a separate criminal action and that it not be included in the action in which the contempt occurred. Because the action is a criminal one, it may be initiated only by the court, a State s Atto rney, the Attorne y General, or th e State Prosecutor, and if the court initiates the action, it may, and should, appoint one of those officials to prosecute it, so that the court is not acting as both prosecutor and judge in the same case. See Maryland Rule 15-205(b) and (c). If the case is in a circuit court and there is the prospect of any imprisonment, the defendant is entitled to a jury trial, and that right can be waived only in conformance with M aryland Rule 4-246 . See Maryland Rule 15 -205(f); Ashford v. State, 358 Md. 552, 567, 750 A.2d 35, 43 (2000); Dorsey a nd Craft v . State, 356 Md. 324, 342, 739 A.2d 41, 51 (1999). In a constructive criminal contempt case, the prosecution has the burden o f proving , beyond a rea sonable doubt, a deliberate effort or a wilful act of commission or omission by the alleged contemnor committed with the -18- knowledge that it would frustrate the order of the court. Dorsey and Craft v. State, supra, 356 Md. at 352, 739 A.2d at 56 (quoting In re Ann M., 309 Md. 564, 569, 525 A.2d 1054, 1056 (1987)). In contrast, Rule 15-206 directs that a proceeding for constructive civil contempt be filed in the action in which the contempt occurred, that any party to that action ma y initiate the proceeding, and that, in a support enforcement case where the contempt is based on failure to pay child or spousal support, an agency authorized by law may bring the action. The standard o f proof is c lear and co nvincing e vidence, n ot evidenc e beyond a re asonable doubt. Maryland Rule 15 -207(e)(2). A defendant in a constru ctive civil con tempt action is not entitled to a ju ry trial. Dodson v. Dodson, 380 Md. 438, 453, 845 A.2d 1194, 1202 (2004); Harrym an v. State, 359 Md. 492 , 508-09, 754 A .2d 1018, 1027 (2 000). It is evident, just f rom these distinctions, tha t criminal and civil contempt actions are entirely separate, in their origin, in their objectives, and in their metho d of adjudication. In the context of enforcing support orders, however, this Court, through the adoption of Maryland Rule 15-2 07(e), attemp ted to create a method by which both kinds of proceedings could be used in a way that was fun ctional and practical and that yet adhered to approp riate legal constraints. Overturning the contrary holding in Lynch v. Lynch, supra, the Rule permits a finding of contempt upon proof that the defendant did not pay the amount owed, accounting from the date of the support order through the date of the contempt hearing, unless the defendant establishes either (1) that limitations has run, or (2) that, during that -19- period, the defendant never had the ability to pay more than was actually paid and that he/she made reasonable efforts to become or remain employed or otherwise lawfully obtain the funds necessary to make additional paym ents. A find ing of con structive civil co ntempt in non-support cases is not precluded simply because the defendant cannot meet a purge on the day of the hearing or order. Rawlings v. Rawlings, supra, 362 Md. at 553, 766 A.2d at 10708. Under the Rule, however, the finding of contempt in non-support cases is not the toothless gesture it was thought to be when Lynch was decided. In adopting the Rule, we recognized that, in many cases, the problem lay in the fact that the defendant was impecunious because he/she was not employed and had not actively and in good faith sought emplo yment. Althoug h in a civil contempt case, the defendant s state of penury precludes a punitive sanction, such as incarceration, that the defendant has no ability to avoid by payment of money, the Rule authorizes the court, in consequence of the finding of contempt the past w ilful disobedience to en ter other kind s of coerciv e directives re asonably designed to produce an income from which the required support could be paid. Rule 15207(e)(4) thus provides: If the contemnor does not have the present a bility to purge the contemp t, the order m ay include directions that the contemnor make specified payments on the arrearage at future times and perform specified acts to enab le the contem nor to com ply with the direction to make p aymen ts. (Emp hasis ad ded). -20- A Committee Note to that provision explains: If the contemnor does not have the present ability to purge the contemp t, an exam ple of a direction to perfo rm specifie d acts that a court may include 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 , with out just cause , to co mply with any provision of the order, a criminal contempt proceeding may be broug ht base d on a v iolation of that p rovision . (Emphasis add ed). The thrust of R ule 15-207(e )(4), with the g loss of the C ommittee N ote, is that, where the contemnor s inability to comply with the support order is his/her lack of gainful employment or other acc ess to availab le funds, the court may ad dress that pro blem direc tly by ordering th e contem nor to take reasonable steps to obtain such employment or access and, if warranted, enforcing those directives through criminal contempt proceedings. The court obviously has some flexibility in deciding what directives to issue. The contemnor may be in need o f emp loyment c ounse ling or tra ining, an d, if those services are available to the contemnor at a cost he/she can afford, the court may order the contemnor to take advantage of them. If there are other impediments to employment or access that can be remedied, the court may order the contemnor to take lawful and reasonable steps to deal with those impediments. That is what the domestic re lations maste r attempted to do in February, 2002. There are , of course, lim its on how far a court may go in this regard; it cannot order things that are either inherently punitive in nature or that are so onerous, impractical, or unrelated to the objective of enablin g the defe ndant to meet his/her obligation as to become punitive. -21- Subject to that constraint, however, the court is not required to give the contemnor a free ride on unemployment and impoverishment, to the detriment of his/her children. The Rule expressly permits those kin ds of remedial ord ers to be enforced through criminal contempt proceedings, but it does not preclude their enforcement through civil contempt proceedings as well. The Rule permits both civil and criminal contempt proceedings to be brought against an alleged contemnor and to be consolidated for hearing and disposition. What the rules do not permit, however, is for the two to become merged or for the court, in a civil contempt case, to apply sanctions that are available only in a criminal contempt case. There can be no combined charging document, nor can a civil contempt procee ding be conve rted, mid -stream , to a crim inal one . Dorsey a nd Craft v. State, supra, 356 Md. at 350, 739 A.2d at 55. That, essentially, was the problem here. This case began as, and it always remained, a civil contem pt proceed ing. There was nev er a crimina l contempt petition filed against appellant. Every pleading, motion, and order, from beginning to end, referenced and was filed in the paternity action. The orders entered by the court on June 27 and 28, 2002, however, when re ad togethe r, were clea rly in the nature of a criminal sentence. As we have observed, the June 28 Order For Constructive Civil Contempt imposed a finite 180 day sentence of incarceration on appellant, of which 150 days was suspended. Appellant was ordered to report to the sheriff to serve the remaining 30 days unless, prior to the day he was to report, he paid $1,000 to DSS, but there w as no evidence be fore the court from which any -22- finding could be made that appellant would be able to pay that $1,000 by that time.4 The June 27 Orde r for Probation was not only captioned State of Maryland vs. Joseph Bryant, in clea r distinction to the civil caption of Howard County Department of Social Services v s. Joseph D avid Bryant, b ut, especially when coupled with the addendum to it, was criminal in its form and substance. It placed appellant under the supervision of the Division of Parole and Probation, a unit within the Department of Public Safety and Correctional Services responsible for supervising persons who have been placed on probation after convic tion of a crime. See Maryland Code, § 6-111 of the Correctional Services Article. The general conditions listed in that order were those peculiar to probation entered as part of a criminal sentence report to probation agent an d follow his/her lawful instructions, get agent s p ermission b efore cha nging job or address, n otify agent if probationer is arrested, permit agent to visit probationer s home. The addendum had similar criminally-oriented provisions pay all fines, restitutio n, and fee s ordered b y the court, totally abstain from alcohol or drugs, attend NA meetings, participate in self-help activities, 4 The only evidence bearing on appellant s ability to meet that purge was that he was curre ntly earning $8 /hour from employme nt and that h e had two other childre n to support. The court gave him nine weeks to accumulate $1,000. If he worked 40 hou rs a week during those nine weeks, his gross earnings, without any deductions, would have been $2,880. There was no evidence as to what his net earnings would have been, whether he could, in fact, have w orked a 4 0-hour w eek if he w as also requ ired to report to his probatio n officer a nd unde rgo drug te sting, or wh at would h ave been required to defray his reasonable living expenses. The assumption that he could accumulate $1,000 during that period was sheer speculation which, in Thrower v. Support Enforcement, 358 Md. 1 46, 747 A.2d 6 34 (20 00), w e mad e clear w as impe rmissib le. See also Rawlings v. Rawlings, supra, 362 Md. at 571-72, 766 A.2d at 118. -23- and submit to alcohol and drug testing. Those kinds of directives go well beyond what is permissible under Rule 1 5-207(e)(4), as they are not on ly quintessentially criminal in nature but have only the most strained and tenuous connectio n with fo rcing appe llant to obtain employment, which he already had, and resuming his child support payments. They constituted an unlawful criminal sentence imposed in a civil contempt proceeding and were therefore invalid. Becau se they were invalid, they could not serve as a lawful basis for the finding of contempt on October 9, 2003. The Order for Constructive Civil Contempt filed on October 9, 2003, must be vacated. Our vacation of that Order does not, of course, affect in any way appellant s on-going obligation to pay the child support and payments on the arrearage that previously had been established and ordered. ORDER FOR CONSTRUCTIVE CIVIL CONTEM PT ENTERED BY CIRCUIT COURT FOR HOWARD COUNTY AND FILED OCTOBER 9, 2003, VACATED; COSTS TO BE PAID BY APPELLEE. -24-
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