Arrington v. Human Resources
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Arrington v. Dept. of H uman R es., et al., No. 10, September Term, 2007. McLong v. Oliver, No. 26 , Septem ber Te rm, 200 7. Opinion by Wilner, J. CON STRU CTIV E CIV IL CO NTEM PT FO R VIO LATIO N OF CHIL D SU PPOR T OR DER ; COURT MAY NOT INCARCERATE DEFENDANT FOR FAILURE TO MEET A PURGE THAT DEFENDANT IS NOT ABLE TO MEET IN TIME TO AVOID THE INCARCERATION. IN THE COURT OF A PPEALS OF MARYLAND No. 10 September Term, 2007 ___________________________________________ BRIAN ARRINGTON v. DEPARTMENT OF HUMA N RESOURCES, ET AL. ___________________________________________ No. 26 September Term, 2007 ___________________________________________ MARCELLAS McLONG v. SHARON OLIVER ___________________________________________ Bell, C.J. Raker Harrell Battaglia Greene Wiln er, A lan M . (Re tired , Spe cially Assigned), Cath ell, D ale R . (Re tired , Spe cially Assigned), JJ. ___________________________________________ Opinion by Wilner, J. Bell , C.J., join s jud gme nt on ly. ___________________________________________ Filed: November 8, 2007 We have before us two more cases in which a trial court has searched for some effective way to enforce the legal obligation that parents have to support the children they bring into the world.1 In Bryant v. Social Services, 387 Md. 30, 33, 874 A.2d 457, 458 (2005), we acknow ledged the difficulties an d the frustratio n faced b y the courts w hen dealin g with par ents who wilfully and def iantly refuse to comply with lawfu l, and often consensu al, child support orders. We recognized in Bryant, as we had in earlier cases, that, when all other efforts fail, the last coercive arrow in the court s quiver is to hold the parent in contempt of court for wilful disobedience of the support order, but we again cautioned that, when exercise of the contempt power leads to the p rospect of incarcerating the p arent, the court s authority and discretion are subject to certain overarching limitations. We observed that, in an attempt to navigate through those limitations and provide a mechanism to achieve the desired result, the Court, in 1997, made certain revisions to its newly adopted Maryland Rule 15-207. The mechanism created by those revisions may not be perfect, and in some cases may not be effective, but, when employed correctly, it is at least permissible and has a reasonable chance of success. The problem in Bryant, as well as in Rawlings v. Rawlings, 362 Md. 535, 766 A.2d 98 (2001), and Wilson v. Holliday, 364 Md. 589, 774 A.2d 1123 (2001), and Dorsey a nd Craft v . State, 356 Md. 32 4, 739 A .2d 41 (19 99) was th at the Circu it Court did n ot follow th e path laid o ut by the Rule. That is also the problem here. It is, as the great philosopher, Lawrence Peter 1 The cases were not consolidated, but they were argued the same day and present the same legal issue, so we have chosen to deal with them both in this one Opinion. Berra, is reputed to have said, deja vu all over again. BACKGROUND Brian Arrington Brian A rrington sired three childre n within an eighteen m onth period but has stea dfastly refused to support any of them. In February, 1992, through a consent paternity judgment entered by the Circuit Court fo r Baltimore City, he was orde red to pay $25 per we ek to Audra Hardy for the support of their minor child, Sonata, born in October, 1991. In August, 1992, through a second consent paternity order entered by the Circuit Court, he was ordered to pay Kim berly Valentin e $45 per we ek fo r the supp ort of the ir min or ch ild, M artia , born in J anuary, 1992. Fin ally in Octobe r, 1993, throu gh a third co nsent patern ity order entered by the Circuit Court, he was ordered to pay Ms. Hardy $28 per week for the support of their minor child, Rian, b orn in M arch, 19 93. By late 1998 , Arrington had accu mulated a n arrearage of nearly $14 ,800 with r espect to Sonata and R ian and over $14 ,000 with respect to M artia, and contempt charg es were filed. It appea rs that he was in carcera ted, at lea st for a tim e, whe n he fa iled to ap pear as directed . There is some indication that in September, 1999, he was found in contempt in all three cases but was released from confinement upon his agreement to pay certain lump sums by January 3, 2000. W hether thos e sums w ere paid is no t clear. In Oc tober, 2001 , the three sup port -2- orders were modified with respect to amounts and payments on the arrearages.2 The cases now before us commenced in January, 2004, apparently upon the issuance of two Paternity Contempt Warrants, one with respect to Sonata and Rian (the Hardy case) and the other with respect to Martia (the Valentine case). Both warrants state that they were based on verified petitions, but th e only petitions th at we can locate in the re cord we re those filed in December, 1998, which, of course, were five years old at the time and appear to have been adjudicated in September, 1999. The warrants directed that Arrington be apprehended and committed to the Baltimore City Jail pending a hearing but authorized bail of $5,000. For whatever reason, it took eighteen months until July 26, 2005 for those warrants to be served. Upon his arrest, Arrington was incarcerated pursuant to the warrants until midSeptember. At some point, a hearing on the contempt petitions was scheduled for October 4, 2005. At that hearing, it appears that an agreement was reached between the State and Arrington, who was represented by counsel, that the case would proceed through an agreed statement of facts. After questioning Arrington, the court found that his consent to that approach was knowing, intelligent, and voluntary. The agreed statement, recited by the prosecutor, established that the current arrearage with respect to Sonata was $14,933, the 2 The reco rds in the three Arrington cases are h opelessly con fusing w ith respect to what occ urred betw een 1992 and 200 4. There a re referenc es to contem pt findings in September, 1999, Incarceration Show Cause Orders issued in October, 2001, a warrant issued in December, 2001, releases from confinement, and proceedings of one kind or another, but it is impossible to discern any clear trail of what actually happened. -3- arrearage as to Rian was $16,421, and the arrearage with respect to Martia was $27,390. It was agreed as w ell that Arring ton had ne ver claimed any mental o r physical disability that w ould have prevented him from complying with the support orders, that he was employed in the first quarter of 2005 but earned only $166, that he was employed in the second quarter of that year but e arne d on ly $1,3 61, a nd th at he had been emp loyed in 20 03 and 2004 but e arne d on ly a pittance . On that record, the court found the arrearages as agreed. It also found that Arrington had the ability to work, that he did in fact work during the relevant period, that he suffered from no appa rent physical or mental disability, that he wilfully failed to comply with the co urt order, and th at he was therefore in civil contem pt. Arrington , who ha d been rele ased from jail only two weeks earlier, informed the court that he was currently employed, that he made $8 an hour, and that he was living with his sister. In accordance with the understanding between the parties, th e cou rt continued the m atter until January 1 2, 20 06, b ut directe d tha t Arr ington pay a lump sum of $750 ($250 per child) on the arrearage and that he continue to pay current support. Arrington agreed to that condition. The hearing scheduled for January 12 was postponed, for reasons not appearing in the record. It was rescheduled for April 26, 2006, but was again postponed when Arrington failed to appear. A warrant was issued for his arrest, and he was again ordered committed to the Baltimore City Detention Center, subject to bail of $10,000. The warrant was served in July, at which p oint, follow ing a bail he aring, his agg regate bail, on all three cases , was redu ced to -4- $2,000, pending a rescheduled hearing on October 3, 2006.3 The Octobe r 3 hearing began o n a note of frustration. M s. Valentine, Martia s mo ther, complained that it was the ninth time she had to appear in court in an effort to enforce the support order. She reminded the court that Arrington had been ordered to make a lump sum payment on January 12, and that he had failed to do so, and that all she had received were three checks for $48 in April. She complained that he would just work a job for just a couple of weeks and then stop. When the court expressed its own uncertainty as to what to do, the prosecutor suggested, based on what another judge had been doing, that Arrington, who had already been found in contempt, be incarcerated but immediately put on work release that the purge be the work release throu gh whic h he could make the required pa yments and that this be done through an entity known as Dismas House.4 The prosecutor ad vised the court 3 It was revealed at the hearing on October 3 that Arrington had been incarcerated in July, 2006, for violation of probation that arose from an unlawful use conviction but that the incarceration for that offense ended on September 5, when his probation terminated. He remained in jail under the warrants because he failed to post the $2,000 bail. It was also revealed that on August 24, 2006, he was convicted of possession of drug p araphe rnalia an d fined . 4 Dismas House appears to be a national movement, named for St. Dismas, the penitent thief who was crucified with Christ. In many communities throughout the country, including Baltimore City, churches or other non-profit organizations have established D ismas Ho use group homes f or prisoners , to provide a transition bac k into commu nity life. In Baltimo re City, Disma s House of Baltim ore, Inc., a priva te non-pro fit agency, maintains two Community Adult Rehabilitation Centers, each with 45 beds, under a contractual arrang ement with the State D ivision of Correction. Th e centers accept prisoners with sentences of three years or less or who are within six months of release. They provide a variety of cou nseling and suppo rt services, including work release, but, as Community Adult Rehabilitation Centers, they are not just group homes but cor rectiona l facilities . See Maryland Code, §§ 11-301 through 11-320 of the -5- that, if Arrington were committed to the Baltimore City Detention Center, someone from Dismas House would come to the jail to interview him to see if he qualified as a candidate for the Dismas House program. In the end, the court continued the case so that Arrington, who remained incarcerated in default of the $2,000 bail, could be interviewed. The proceeding resumed on October 25, before a different judge. The arrearages as of then w ere nea rly $34,00 0 with r espect to Sonata and R ian and $29,50 0 with r espect to Martia . Aside from that, the only new information was that Arrington had been found by the Detention Center to be an acceptable candidate for work release, although it was not clear at the time whether he had been accepted into Dismas House. Defense counsel objected to any incarce ration ab sent a fi nding o f prese nt ability to m eet wh atever p urge w as set by th e court. Unimpressed, the court committed Arrington to the Division of Correction for a period of eighteen months, sub ject to the following purg e: Defendan t to enter Dismas Ho use and secure full-time employment with earnings withholdings for purge (work release program). The Commitment Record shows a sentence of eighteen months for civil contempt to be served at Baltimore City Work Release Program. From that order, Arrington appealed. We are advised that, on November 16, 2006, the court entered additional orders in each case committing Arrington to Dismas House and that separate appeals were taken from those orders. On Arrington s motion, the Court of Special Appeals, on January 31, 2007, stayed the Circuit Court commitment orders and directed that Correc tional S ervices Article. -6- Arrington be released pending the appellate proceeding. Coincidentally, on the same day, the Circuit Court, advised that Arrington had been accepted into Dismas House on October 25, 2006, and that he had obtained full-time employment, entered an order finding that he had purged his contempt and ordering his release from Dismas House. In April, 2007, we granted certiorari prior to any other significant proceedings in the Court of Special Appeals. Marcellas McLong In September, 199 4, through a consen t paternity judgment entered by the Circuit C ourt for Baltimore City, McL ong was orde red to pay $25 per we ek to Sharon O liver for the support of their minor child, Solena, born in January, 1993. In April, 2003, a petition for contempt was filed, alleging an arrearage of over $7,500. Following a hearing in September, the court found the arrearage to be nearly $8,000, ordered that McLong be adjudged in contempt unless he purged himself of the contempt by making regular support payments of $25 per week and paying an additional $25 per week on the arrearage, and directed that an earnings lien be established. In May, 2005, the Child Support Enforcement Office, alleging an arrearage of over $10,000 , requested a n order dire cting Mc Long to s how ca use why he should no t be held in contemp t. A hearing was sche duled bef ore a M aster for July 11 , 2005, but M cLong f ailed to appear. A hearing was then sched uled before a judge on July 20, following w hich the court entered an order establishing an arrearage of $10,470 and directing that McLong be adjudged -7- in contempt unless he purged by making the current and arrearage payments called for in the Septemb er, 2003 or der, though on a mon thly, rather than a w eekly, basis. Tha t did not seem to work, and in April, 2006, another petition for contempt was filed. A hearing scheduled for July 12, 2006 , was postp oned un til October 5 , with the dire ction that M cLong b ring with h im at that time evidence verifying income from all sources, that he verify that he had made five attempts each week to look for a job, and that he enroll in and complete GED program, and bring d ocum entation . 5 At the October 5 hearing, McLong informed the court that he had a job in which he earned $8 an hour, working about 30 hours a week. He had been working for about two weeks, b ut had ma de no sup port paymen ts. He said tha t he expec ted to start a G ED pro gram in about two weeks. Because McLong appeared without counsel, the court explained that he had a right to a full trial or he could ad mit that he was in arrears, and he chose the latter. 6 A child support enforcement official then advised, without contradiction, that, pursuant to the McLong had advised the court that he had gone to the 12th grade in school but had not graduated and that he was working on his GED. GED is sometimes used as the acronym for General Education Development and sometimes for General Equivalence Diploma or General Educational Diploma. It involves a battery of five tests developed by the American Council on Education, in language arts (writing), social studies, science, language arts (reading), and mathematics, given at of ficial GED testing ce nters throughout the country to applicants who have not received a high school diploma. Upon satisfactory completion, the applicant receives a certificate of general educational developm ent. 5 6 McLong had been advised in July of his right to counsel and the need to contact the Public Defender s Office if he desired appointed counsel. He acknowledged that he had not contacted the Public Defend er -- that he just didn t go over there. T he court found th at he had w aived cou nsel, a findin g not challe nged in this a ppeal. -8- September, 2003 order, McLong should have paid $8,233 in current support and reduction of the arrearage, that he had paid nothing during that period, and that his total arrearage was $12,095. Upon that evidence, the court found the arrearage to be $12,095, found as well that McLo ng was in civil contem pt, and pos tponed dis position un til February 1, 20 07. Both o rally and in the form of an Order, the court instructed McLong that, upon his return to court, he was to verify his income from every source, make a lump sum payment of $500, and either comp lete a G ED o r provid e proof of his G ED sta tus. When the proceeding resumed on February 1, the court was informed that McLong had not made any of the payments the court directed in October. The court thereupon sentenced McLong to incarceration for two years, which could be purged through the payment of $2,000 in cash. No inquiry was made, and no finding was made, as to whether McLong could pay that amount, or any other amount. The court treated the sanction as a criminal sentence and advised M cLong th at he had ten days to ask fo r a new tria l, 90 days to req uest a modification of the sentence, and 30 days to file an appeal. The court reset the matter for review in May, 2007. McLong noted an appeal. While the appeal was pending in the Court of Special Appeals, McLong sought a stay of the February 1 order, first from the appellate court and, when that was denied, from the Circuit Court. On May 15, 2007, the Circuit Court denied the stay but, through a new commitment order, amended the purge to payment of $200 and presentation of a GED certificate. A month later, we granted certiorari prior to any significant -9- proceedings in the Court of Special Appeals. In July, the Circuit Court stayed the May 15 amended commitment order pending completion of the appellate process and ordered the imm edia te rel ease of M cLo ng from inca rceration . In a c omp anio n ord er en tered the same day, the court established the current arrearage at $13,070, scheduled a review hearing for Novemb er 21, 2007, and, as bef ore, ordered Mc Long to enroll in and complete (if possible) a GED class. THE ISSUES The iss ues raise d by Arri ngton a nd M cLon g are fa ctually disti nct but le gally simila r. Did the co urt cross the lin e by imposing sanctions in a civil contem pt case that, w hatever the ir intent, are more punitive than coercive? Can a court, in a civil contempt case, impose incarceration as a sanction for the contempt, subject to purge conditions that the contemnor cannot meet in time to avoid the incarceration? The spec ific argum ent made by Arrington is that the cou rt erred in (1) co ntinuing his incarceration subject to a cash bail of $2,000, which it knew he could not meet, and (2) imposing incarceration as a sanction for the contempt until he obtains employment and begins making s upport pa yments, know ing that he c ould not m eet those co nditions prio r to commencing the incarceration. McLong complains that the court erred in (1) imposing a sentence of two years imprisonment with a purge provision of $2,000, which the court knew he could not meet, and (2) conditioning release from incarceration on the obtention of a GED -10- certificate, knowing that he could not obtain that certificate prior to commencing the incarceration. DISCUSSION Mootness as to Arrington Arrington has not ch allenged the finding of contempt, which was entered in O ctober, 2005, and from which no appeal was taken. His appeals are from the orders entered in October and November, 2006, and go only to the purge and the sanction his incarceration in default of purge conditions that he could not meet in time to avoid the incarceration. The State contends that, because, during the pendency of the appeal, the Circuit Court declared his contempt purged and ordered his release from confinement, the appeal has become moot and should be dismissed as such.7 The State is correct that Arrington s appeal has become moot. The only status of which he complains no longer exists. As noted, he does not challenge the finding of contempt; nor does he complain about the requirement that he obtain employment to which an earnings lien may be attached. His attack is directed solely to the order that he be incarcerated until such 7 No such contention has been , or legitimately cou ld be, mad e with resp ect to McLong s appeal. Although he, too, is appealing only from the sanction imposed and not from the finding of contempt itself, there has been no finding in his case that his contempt has been purged. He was released from confinement only because the order imposing that sanction was stayed during the pendency of the appeal. Should this Court affirm that order, h e wou ld be su bject to im media te reinca rceratio n. -11- time as he o btains that em ployment or p osts $2,000 bail, but that ord er has been vacated an d, in light of the court s finding that the contempt for which that sanction was imposed has been purged , it may not be reins tated. Arrington s situation is qu ite different f rom those in which w e have en tertained app eals from contempt findings in the absence of a sanction. In Bryant v. Social Services, supra, 387 Md. 30 , 874 A.2d 457, the ap pellant, charg ed with co ntempt fo r failure to pa y child suppo rt, was, in eff ect, placed o n a crimina l probation a nd ordere d, among other things , to submit to periodic drug testing and to attend Narcotics Anonymous or other self-help meetings. When he failed to comply with those requirements, the court found him in civil contempt, and, although n o imprison ment or oth er sanction w as impose d, those tw o requirem ents remain ed in effect. He appealed from that contempt order, complaining that those requirements, addressed to his drug addiction, we re impermissible conditions to the enforcement of a child support order and that the court had no authority to base a contempt finding on a violation of those conditions. His challenge was to the contempt finding itself. Noting that Bryant had never been incarcerated or otherwise sanctioned for violating the two conditions and that the probation order that imposed those conditions had expired, the State moved to dismiss the appeal as moot. We denied the motion. We pointed out that Maryland C ode, § 12-3 04(a) of th e Cts. & Ju d. Proc. A rticle expressly pe rmits a perso n to appeal from any order or judgment passed to preserve the power or vindicate the dignity of the court and adjudging him in contempt of court and that the statute did not require, as a -12- conditio n to the a ppeal, th at the ad judicatio n of co ntemp t be acc ompa nied by a sanctio n. We observed as well that [a] finding of contempt, even without the immediate imposition of punishment or sanction, leaves the defendant adjudged to have wilfully violated a court order and may well leave the defendant subject to future punishment at the will of the court. Id. at 45, 874 A.2d a t 465. As we have indicated, that is not the case here. Arrington complains only about the validity of the incarceration, which no longer exists and wh ich cannot, in light of the court s finding that the c ontem pt has b een pu rged, be reinstitut ed abse nt a new finding of con tempt. Nor can we discern any indirect or collateral consequences of the orders he has appealed that might p reclude a findin g of m ootnes s. Compare Toler v. MVA, 373 Md. 214, 817 A.2d 229 (2003). Nonethe less, in exceptional situations, we hav e addressed issues in case s that are technically moot, when [t]he urgency of establishing a rule of future conduct in matters of important p ublic conc ern is impera tive and m anifest, or w here the m atter involved is likely to recur freq uently, and its recu rrence w ill involve a rela tionship betw een gove rnment an d its citizens, and upon any recurrence, the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision. Lloyd v. Supervisors of Elections, 206 M d. 36, 43, 11 1 A.2d 3 79, 382 (1 954); Matthews v. Park & Planning, 368 Md. 71, 96, 792 A.2d 28 8, 303 (20 02); Hammen v. Baltimore Police, 373 Md. 440, 450, 818 A.2d 1125, 1131 (2003). This is such a case. It appears from both the record in this case and from uncontradicted -13- representations made at oral argument that a practice has developed in the Circuit Court for Baltimore City of com mitting fathe rs found in contemp t for failure to c omply with c hild support orders to Dismas House or the Baltimore City Detention Center until such time as they obtain em ployment thro ugh a w ork release p rogram o r satisfy other con ditions they are u nable to meet in time to avoid the incarceration. The validity of that practice, which may affect hundreds of recalcitrant parents whose cases come before that court, is what is being challenged by both Arrington and McLong, and it is urgent and imperative that the issue be resolve d. The Proper Handling of Non-Support Contempt Cases Until Janu ary 1, 1997, the Maryland R ules dealing with conte mpt proce edings, fou nd in subtitle P of Chapter 1100, were rather sparse. Although they acknowledged the existence of both civil an d criminal co ntempt, they pro vided little guid ance with respect to ho w to deal w ith either, but addressed only the distinction between direct and constructive contempt. The case law was somewhat more informative, but not a lot. In State v. Roll a nd Scho ll, 267 Md. 714, 727, 298 A.2d 867, 875 (1973), the Court recognized that, over the years, the historical foundation of contempt had tended to erode and out of the rubble, confused and indistinct categories have arisen. The Court added, in particular, that the line between civil and criminal contempt is frequently hazy and indistinct and that [o]ften the same acts or omissions may constitute or at least embrace aspects of both. Id. at 728, 298 A.2d at 876. -14- From the haze and rubble, the Court attempted to delineate with better precision the various kinds o f conte mpt tha t existed and ho w they sh ould be handle d. Roll and S choll involved criminal contempts the refusal of two witnesses to testify before a grand jury, even though offered immunity against prosecution for what they might say. The issue was whether the contemptuous refusal to testify was a direct contempt that could be punished summarily or a constructive contempt that required a fact-finding proceeding. In resolving that issue, the Court looked at the broader universe of contempts, noting that a contempt could be civil or criminal and that, at least theoretically, either could be direct or con structive. Th ere was th us a grid into which co ntempts co uld fall: Direct Criminal Constructive Criminal Direct Civ il Construc tive Civil The Court defined a direct contempt, whether criminal or civil, as occurring when the action of the contemnor interrupt[s] the order of the courtroom and interfere[s] with the conduct of business, and is within the sensory perception of a presiding judge. Id. at 734, 298 A.2d at 879. In that circumstance, the judge will have a sufficient knowledge of the contemptuous act which tends to interrupt the proceedings and will not have to rely on other evidence to establish all the details, though some of them can be supplied by additional testimony. Id. A constructive contempt is the reverse of that, conduct that does not interrupt the order of the courtroom or interfere with the conduct of business and is not within the sensory perception of the judge. The facts demonstrating the contemptuous conduct must be -15- proved by evide nce. Address ing the distinc tion betwe en civil and criminal con tempts, the C ourt noted th at a civil contem pt proceed ing is intende d to preserv e and enf orce the righ ts of private p arties to an actio n and to comp el obed ience to orders a nd judg ments e ntered p rimarily fo r their be nefit. Such a proceeding, we said, is remedial, rather than punitive, in nature, intended to coerce future compliance, and, accordingly, a penalty in a civil contempt must provide for purging. Id. at 728, 298 A.2d at 87 6. Conve rsely, the penalty in a c riminal con tempt proc eeding is to punish fo r past misco nduct, wh ich may no lo nger be ca pable of re medy. That k ind of pen alty is thus p unitive i n natur e and d oes no t require a purgi ng pro vision, b ut it mus t be dete rminate . These distinctions, between direct and constructive contempts and civil and criminal contempts, articulated in Roll and S choll, have b een co nfirme d by us on nume rous oc casion s. See, most re cently, King v. Sta te, 400 Md. 419 , 929 A.2d 169 (2007). Roll and S choll stressed that a civil contempt sanction, being coercive rather than punitive in nature, had to have a purging provision. Because Roll and S choll involved a crimina l contem pt, the C ourt did not hav e to wa nder fu rther into the nua nces of civil con tempt. The Court was surely aware from earlier cases, however, that some judges, when confronting parents or sp ouses w ho had w ilfully failed to ob ey support ord ers and w ho, whe n brough t to court to face civil contempt charges, pled and proved poverty as an excuse, nonetheless ordered the ir immedia te incarceratio n, subject to a lump sum cash payme nt purge. T hey did this in the belief that, before th e cell door a ctually closed late r in the day, the m oney wou ld -16- mysteriously appear, often through the beneficence of a parent, sibling, or friend. The practice was unauthorize d and unlawf ul, even under existing case law. It was not unco mmon, how ever, becau se, in ma ny instanc es tho ugh by n o mea ns all -- it p roduce d the de sired res ult. In Elzey v. Elzey, 291 Md. 369, 374, 435 A.2d 445, 448 (1981), the Court reiterated that, in a civil contempt proceedin g based on the fa ilure to comply with a suppo rt order, imprison ment ma y be avoided by showing that one ha s neither the m oney nor the a bility to pay, and that the issue is no t the ability to pay at the tim e the paymen ts were orig inally ordered but rather the present ability to pa y. Elzey v. Elzey, supra, 291 Md. 369, 374, 435 A.2d 445, 448, quoting in part from Soldano v. Soldano, 258 Md. 145, 146, 265 A.2d 263, 264 (1970 ) and citi ng othe r cases to the sam e effec t. Elzey thus pointedly confirmed that a person may not be incarcerated for civil contempt based on a failure to comply with a support order unless the c ourt establish ed a purg ing provisio n with w hich the pe rson had th e current ab ility to comply and, by so complying, avoid the incarceration, and that courts would no longer be able to ignore that requirement. Most judges got the message and began looking for other ways to coerce compliance. In 1995, the Court s Standing Committee on Rules of Practice and Procedure (Rules Committee) filed its 132nd Report, w hich conta ined a ma jor overhau l of the Ru les dealing w ith special p roceed ings, inc luding contem pt cases (propo sed Ru les 15-2 01 thro ugh 15 -208). Although the new Rules initially proposed to the Court contained somewhat greater guidance in the handling of contempt proceedings, especially constructive civil contempt proceedings, -17- they did not focus, in particular, on proceedings to enforce support orders. While the 132nd Report was pending, the Court decided Lynch v. Lynch, 342 M d. 509, 6 77 A.2 d 584 ( 1996) . The Court there reconfirmed that a person could not be incarcerated for civil contempt unless the c ourt attac hed a purge p rovision with which th e per son h ad th e cur rent abili ty to co mply, but it went further and extended the present-ability-to-comply principle not just to the sanction of incarceration but to the finding of contempt as well. The Court held that, even upon proof that the person had the ability to comply with a support order during the period of that order and wilfully failed to do so, a contempt finding was impermissible unless the person had the presen t ability to co mply wi th that un derlying s uppor t obligat ion on t he day of trial. Immediate concern was expressed by judicial, prosecutorial, and support enforcement officials that Lynch had changed both the structure of civil contempt proceedings and the viability of that remedy to enforce child and spousal support orders. After holding an open meeting on the 132nd Report, at which that concern was discussed, the Court, with some modifications, adopted the Rules recommended in that Report, including the proposed Rules governing contempt proceedings, but, in its June 5, 1996 Order, directed the Rules Committee to look again at the new contempt Rules in light of Lynch and to report any recommended chang es to the Court b y Octob er 31, 19 96. See 23:14 M d. Reg ister, P-1 (July 5, 19 96). The Rules Committee held two public meetings on the impact of Lynch, on September 6 and October 4 , 1996, and, from the e xtensive evidence pre sented, concluded that the c oncern was valid and that Lynch had gone too fa r. The problem w as that obligees and supp ort -18- enforcem ent officials m ight well be able to estab lish that the de fendant h ad the ability to comply with the support order, at least in part, during the period prior to the filing of the petition for contempt and could use that ability to establish the contempt, but rarely would they be able to docum ent the defendant s pre cise financial status on the day of trial. Und er Lynch, they complained, if the defendant came to court and simply asserted that he then that day had no funds, their inability to controvert that assertion would preclude a finding of contem pt. The support enforcement community understood that, upon a finding of constructive civil contempt, the court was obliged to establish a purge and that the contemnor could not be incarcerated unless he or she had the current ability to meet that purge, but, under pre-Lynch practice, the judge, notwithstanding the defendant s current alleged poverty, could determine the arrearag e, make a f inding of c ontempt b ased on th e defend ant s past ab ility to comply with the order, po stpone the im position of any sanction, a nd direct tha t the defen dant take ce rtain action prior to the next hearing seek employment or other earning capacity to enable him or her to meet a lump sum payment purge. If the defendant wilfully failed to comply with those directives and for that reason remained unable to meet the purge, the court could find and punish a contempt based on that violation. The witnesses claimed that that approach was often successfu l and, in man y instances, it wa s the only appr oach that was successful. One witness estimated th at betwee n 50% and 75% of those ind ividuals fou nd in conte mpt and f aced with potentia l incarce ration d id purg e. See Minutes of Rules Committee meetings on September 6, -19- 1996 and October 4, 1996, and exhibits thereto. In obedience to the Court s directive and upon this evidence, the Rules Committee reported those findings to the Court and recommended that certain changes be made to the newly ad opted c ontem pt Rule s. See letter of Oc tober 31, 19 96, from R ules Com mittee Cha ir to the Court, quoted in Rawlings v. Rawlings, supra, 362 Md. 535, 549-50, 766 A.2d 98 and Wilson v. Holliday, supra, 364 Md. 589, 600-01, n.5, 774 A.2d 1123, 1129-30, n.5. The principal ch ange reco mmend ed was a new sec tion (e) to Ru le 15-207 , to deal spec ifically with constructive civil contem pt to enforc e support o rders. The R ules Com mittee s prop osal, which, ov er a dissent, w as adopted by the Court ( see 24:2 Md. Register 97, Jan. 17, 1997), was intended to overrule the holding in Lynch that precluded a finding of contempt absent a current ability of the defendant to meet a purge and, building on the other new contempt Rules and by bringing appropriately into play both civil and criminal contempt proceedings, permit the existing regim e, as explain ed to the R ules Com mittee but w ith some m odifications , to continu e. Rule 15-207(e) applies only to constructive civil contempt proceedings based on the alleged failure to pay child or spou sal supp ort. See Rule 15-207(e)(1). Rule 15-207(e)(2) permits a court to make a finding of contempt if the petitioner proves 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. Subsection (e)(3 ) of the R ule p rovides two d efen ses to such a fin ding : if th e def endant p rove s by a -20- preponderance of the evidence that (A) from the date of the support order through the date of the contem pt hearing, h e or she (i) n ever had th e ability to pay more than the am ount actua lly paid and (ii) m ade reason able effo rts to becom e or remain employed o r otherwise lawfully obtain the f unds nec essary to mak e payment o r (B) enfo rcement b y contempt is barred by limitatio ns. Present inability to comply with the support order or to meet a purge established by the court is not a defense and does not preclud e a find ing of c ontem pt unde r subse ction (e) (2). That is the part of the Rule that overrules the inconsistent holding in Lynch. See Rawlings v. Rawlings, supra, 362 Md. 535, 549-53, 766 A.2d 98, 106-08. If the petitioner proves that the defendant failed to pay the amount owed and the defendant fails to prove either that he or she could not have paid more than was paid or that limitations has run on the part that could have been paid , the court m ay find the de fendant in contemp t. Subsection (e)(4) of the Rule and the Committee Note that follows the Rule provide a roadmap for how the contem pt finding m ay be implem ented. Sub section (e)(4 ) provides th at, upon a finding o f constructive civil contemp t for failure to pay support, the court mu st enter a written ord er that specif ies (A) the a mount o f arrearage for whic h enforce ment by con tempt is not barred by limitations, (B) the sanction imposed for the contempt, and (C) how the contempt may be purged. That section further provides: If 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 to comply with the -21- directio n to ma ke paym ents. The Committee Note to the Rule explains that § (e) modifies Lynch by allowing a court to make a finding of contempt in a support enforcement action even if the defendant does not have the present ability to purge and that, as in other civil contempt cases, after making a finding of contempt, the court may specify imprisonment as the sanction if the contemnor has the presen t ability to purg e the contem pt. (Emph asis added ). The Co mmittee N ote goes o n to provide: If the contemnor does not have the present ability to purge the contemp t, an examp le of a directio n to perfor m specifie d 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 period ically prov ide evid ence o f the ef forts m ade. 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. (Emp hasis ad ded). As a recapitulation, the regime and procedure for enforcing support orders through constructive contempt proceedings, established by Rules 15-201 through 15-208 and prevailing case law, are as follows: (1) If the State wishes to p unish a pe rson for w ilfully failing to com ply with a valid support order, it may institute constructive criminal contempt proceedings pursuant to Rule 15205. See Ashfo rd v. State, 358 M d. 552, 750 A.2d 35 (2000); Dorsey and Craft v. State, supra, -22- 356 Md. 324, 739 A.2d 41.8 Such a proceeding may be brought only by a State s Attorney, the Attorney General, the State Prosecutor, or the court not by a party to the domestic case -- and, if the court institutes the proceeding, it may, and should, appoint one of those p rosecu torial of ficials to file the p etition an d prose cute the charge . See Rule 15-205(b) and (c). A criminal contempt action must be docketed as a separate criminal action. It is not part of the a ction in wh ich the supp ort order w as issued; it m ay not be com bined, in a sin gle charging document, with a civil contempt action; and a civil contempt action may not be conve rted, mid -stream , into a cri minal c ontem pt action . See Dorsey and Craft v. State, supra, 356 M d. 324, 7 39 A.2 d 41. If a criminal contempt action is filed, the defendant is entitled to most of the procedural rights atte ndant to crimina l cases. See Do rsey and C raft at 342-43 , 739 A.2d at 51; Mitchell v. State, 320 M d. 756, 761 , 580 A.2d 196, 199 (1990); Roll and Scholl, supra, 267 Md. at 731, 298 A.2d at 877.9 Rule 15-2 05(e) and (f) make c lear that, amo ng those rig hts are the righ t to counsel, which m ay be waived only upon compliance w ith Maryland Rule 4-2 15, and to a jury trial, which may be waived only upon compliance with Maryland Rule 4-246, and included as well are the privilege against self-incrimination, the opportunity to be heard and present 8 Wilful non-support of a minor child is also a direct criminal offense, carrying a penalty o f up to th ree years in prison a nd a $1 00 fine . See Maryland Code, Family Law Article, § 10-20 3. See also §§ 10-204 through 10-216, which provide an alternative enforcement mechanism. 9 We say most because there may be some that do not apply to a contempt proceeding. The proceeding is commenced, for example, by an order and petition, rather than by indictment or criminal information, and there is no right to a preliminary hearing. -23- evidence, and the right to confront witnesses. In such an action, the State bears the burden of provin g the co ntemp t beyond a reaso nable d oubt. Ashford v . State, 358 Md. 552, 750 A.2d 35 (2000). What the State must prove is a deliberate effort or a wilful act of commission or omission by the alleged contemnor committed with the knowledge that it would frustrate the order of the court. In re Ann M., 309 M d. 564, 569 , 525 A.2d 1054, 10 56 (1987 ); Dorsey and Craft v. State, supra, 356 Md. at 352, 739 A.2d at 56. As we pointed out in Dorsey a nd Craft, evidence of an ability to comply, or evidence of a defendant s conduct purposely rendering himself un able to com ply, may, depend ing on the c ircumstanc es, give rise to a legitimate inference that the defendant acted with the requisite willfulness and knowledge. Id. at 352, 739 A.2d at 56. If the sanction for a constructive criminal contempt is incarceration, the court s order must specify a determinate term and any condition under which the sanction may be susp ended, m odified, rev oked, or term inated. Ru le 15-207 (d)(2). The s entence is largely w ithin the discretio n of the court, so long as it is not cru el or un usual. See Archer v. State, supra, 383 Md. 329, 345, 859 A.2d 210, 220.10 (2) The obligee under the support order or a person or agency authorized to act on his or her behalf may file, in the action that produced the support order, a petition for constructive civil contemp t pursuant to Maryland R ule 15-20 6. If incarcer ation to com pel comp liance with the support order is sought, the petition must so state, and the defendant is entitled to counsel 10 We express no opinion here whether a prison sentence for criminal contempt based solely on failure to obey a support order may exceed the three year maximum allowed b y Family Law Art., § 10-2 03 for crim inal non-su pport. -24- and must be notified of that right. Any waiver of counsel on the defendant s part must be know ing and volunt ary. See Rule 15-206(c) and (e); also Zetty v. Piatt, 365 Md. 141, 776 A.2d 631 (200 1). The stan dards for a constructive civil contem pt proceed ing are set fo rth in Rule 15-20 7, most of wh ich we have a lready dis cussed . If the proceeding is one for constructive civil contempt, the petitioner must prove by clear and convincing evidence that the defen dant failed to comply with a v alid support order; i.e., that a prior co urt order dire cted [the d efendan t] to pay the supp ort . . . and the [d efendan t] failed to make the court-ordered payments. Jones v. Sta te, 351 Md. 264, 273, 718 A.2d 222, 227 (1998). Upon such proof, the court may find the defendant in contempt unless the defendant proves, by a preponderance of the evidence, that, despite making reasonable efforts, he or she never had the ability to pay more than was paid or that enforcement of the obligation with respect to the unpaid amounts through contempt is barred by the three-year statute of limitation s set for th in M aryland C ode, § 1 0-102 of the F amily La w Art icle. If, or to the extent that, the defendant fails to establish one of those defenses and the court fi nds the defen dant in c ontem pt, the co urt mus t then ad dress th e quest ion of s anction . Rule 15-207(e)(4) requires the court to enter a written order that specifies the amount of arrearage not barred by limitations, any sanction imposed for the contempt, and how the contempt may be purged. In that regard, it is critical to keep in mind, as a most fundamental principle, that it is impermissible in a civil contempt action to apply sanctions that are available only in a criminal contempt case. Bryant v. Social Services, supra, 387 Md. at 50, -25- 874 A .2d at 46 8 (Em phasis a dded). Althoug h the text of the Rule d oes not ex plicitly bar incarcer ation if the de fendant is then unable to meet the purge, case law, confirmed by the Committee Note attached to the Rule, clearly does, and the Ru le must be read in light of that ca se law and Co mmittee Note. If the court anticipates the prospect of incarceration, therefore, it must determine whether the defendant has the current ability to meet the purge. In most instances, that will depend on what the purge is. If, as in the great majority of cases, it is the payment of a sum of money, the questio n will b e whe ther the d efend ant is the n, on that day, able to make that payment. The court may no t order an inc arceration to comme nce in the f uture, becau se the findin g of ability to purge must be contemporaneous with when the incarceration is to commence and m ust remain in existence throughout the period of incarceration. The defendant must have the ability to av oid bot h the co mmen cemen t and the continu ation of incarce ration. Jones v. State, supra, 351 Md. at 282, 718 A.2d at 231. The Rule does not specify who has the burden of proof on that issue. Case law, howev er, establishes th at the burde n is on the co ntemnor to establish his o r her inability to meet th e purge . See Lynch v. Lynch, supra, 342 Md. 509, 513, n. 1, 677 A.2d 584, 586, n.1; Soldano v. Soldano, 258 Md. 145, 146, 265 A.2d 263, 264 (1970). That approach is consistent with the rule grounded in common sense that the burden of proving a fact is on the party who presum ably has p eculiar m eans of know ledge enablin g him o r her to e stablish the fac t. Lake v. Callis, 202 M d. 581, 587 , 97 A.2d 3 16, 319 (1 953); Garrett v. S tate, 124 Md. App. 23, 29, -26- 720 A.2 d 1193, 1 195 (199 8); National Communications Ass n, Inc. v. AT&T Corp., 238 F.3d 124 (2 nd Cir. 2001) ; International Harvester Co. v. Ruckelshaus, 478 F.2d 615 (D.C. Cir. 1973) (when c ertain materia l lies particularly with in the know ledge of a party, that party is ordina rily assigned th e burden of adduc ing the pertin ent inform ation; this assign ment of b urden is appropriate when the other party is confronted with the formidable task of establishing the negative). It is the defendant who best knows his or her immediate financial situation and has the best access to evidence establishing that status. Indeed, it was the inability of the petitioner to know the defen dant s finan cial situation on the day of trial tha t led the Co urt to add § ( e) to Rule 15-207. That is why, if the purge calls for the payment of money, the defendant must be given the opportun ity to show that h e or she is un able, rather tha n unwilling , at that time, to make the court-ordered payments. Jones v. State, supra, 351 M d. at 281 , 718 A .2d at 23 1. See also Johnson v. Johnson, 241 Md. 416 , 420, 216 A.2d 9 14, 917 (1966). Obviously, the court is not required to believe everything (or anything) any witness says, especially wh en it is unsup ported by othe r evidence , but the cou rt may not igno re credible and unco ntroverted e vidence o f a defen dant s imp ecunious circumstan ces in order to circumvent the limitation on incarceration. A defendant claiming poverty may be questioned regarding that claim, and other evidence, together with reasonable inferences from other evidence, may be con sidered, both for its own v alue and as affecting th e defendant s cred ibility. A purge does not necessarily have to be a sum of money, of course, but (i) as we -27- indicated in Bryant v. Social Services, supra, 387 M d. at 50, 874 A.2d at 46 8, in order tha t it not be regarded as impermissibly arbitrary or punitive, rather than coercive, it must have some reas onable co nnection to enforcem ent of the su pport orde r, and (ii) if incarc eration is anticipated if the purge is not met, the purge must still be one which the defendant can immediately meet in order to avoid the incarceration. (3) Althou gh constru ctive civil and criminal con tempts ma y not be charg ed in a single petition and a civil contempt proceeding may not be converted into or merged with a criminal contempt proceeding, criminal and civil constructive contempt proceedings may occur sequentially or contemporaneously. In Roll and S choll, the Court observed that, in a constructive civil contempt proceeding, the evidence may indicate that the alleged contemnor cannot co mply with the order of th e court that d irected him to perform an act for th e benefit and adva ntage of a nother party to th e suit, and it de clared that, [ i]f this inability to com ply was caused by a deliberate effort or a wilful act of commission or omission by the alleged contemnor committed with the knowledge that it would frustrate the order of the court, the civil contempt proceeding should be terminated and new proceedings may be instituted which can result in a finding of criminal contempt. Id. 267 M d. at 730, 29 8 A.2d a t 877 (Em phasis added). In light of the new contempt Rules a dopted after Roll and S choll, and the options they provide, we would amend should to may. The approach, of terminating the civil contempt proceeding and commencing a criminal proceeding, to punish for the past contemptuous -28- conduct, remains viab le, however. 11 Rule 15-2 07(a) perm its a person to be charge d separately w ith both a co nstructive civ il and constructive criminal contempt and for the two proceedings to be consolidated for purposes of hearing and disposition. In that way, civil and criminal constructive contempt proceedings may coexist contemporaneously. Courts should be exceedingly cautious in using that approa ch, how ever. Civil an d criminal co ntempts ha ve a diffe rent focus , and each permits things forb idden to the other. Wh en they are co nsolidated f or hearing a nd dispos ition, there is a real danger of crossing the line and applying principles and procedures applicable to only one kind of action to the othe r. (4) Courts m ay be creative in constructive civil contem pt cases in fa shioning re asonable purges and enforcing non-compliance with them, but their creativity may not extend to devices of any kind that effectively circumvent the bedrock, unambiguous bar against setting a purge 11 The Roll and S choll Court did not indicate at what point the civil contempt proceeding should or could be terminated. In light of the procedure set forth in Rule 15207(e), it would appear that, absent a stipulation, the appropriate time would be after the petitioner has established non-compliance with the support order, the defendant has had the opportunity to show that he or she never had the ability to pay more than was paid but failed to do so, a finding of contempt is made, a purge is set, and the defendant establishes a c urrent inability to m eet that purg e. Only at that po int would the court be in a position to conclude that the defendant is unable to comply with the order of the court. It is not necessary for the court to impose a sanction in a civil contempt case, even upon a finding of contempt, and, in this situation, no sanction involving the deprivation of liberty could be imposed in any event. Given that the State, rather than the obligee, would be the prosecuting party in the criminal contempt case and there would not have bee n any relevan t fact (or legal c onclusion ) bearing on the contem pt decided in favor of the defendant, it would not appear that either double jeopardy or collateral estopp el wou ld bar a s ubseq uent crim inal con tempt p roceed ing. -29- that the defe ndant is cur rently unable to m eet and then incarcerating the defen dant for fa iling to meet that purge. That includes continuing an incarceration under a bench warrant or body attachmen t that was issu ed solely to bring the defen dant befo re the court. 12 Supplemented by case law, Rule 15-207(e)(4) and the Committee Note following the Rule lay out the kinds of th ings a cou rt may do. One possibility, as we h ave noted , is to terminate the civil contempt proceeding without a sanction and proceed with the filing of a criminal contempt case. Criminal contempt cases are harder to prove, however. They also depend on the willingness of the Attorney General or a prosecutor to file and proceed with one and, at the defendant s election, may require a jury trial. That option should therefore be reserved f or the dieh ard case in which it is cle ar that no ef fective coe rcion is poss ible 12 If a party or witness is duly summoned to appear in court and fails to do so, the court may issue a body attachment or, if necessary, a bench warrant, authorizing the person to be se ized an d brou ght bef ore the c ourt. See Nno li v. Nnoli, 389 Md. 315, 323, n.1, 884 A .2d 1215 , 1219 (20 05); Wilson v. Sta te, 345 Md. 437, 450, 693 A.2d 344, 35051 (1997 ). The sole p urpose of such an o rder is to assur e the presen ce of the p erson in court so that the hearing or trial may proceed. If a body attachment (or warrant) does not specify otherwise, the person shall be brought without unnecessary delay before the judge w ho issued th e attachme nt and, [i]f the court is no t in session w hen the pe rson is taken in to custo dy, the pe rson sh all be bro ught be fore the court at i ts next se ssion. Marylan d Rule 1-361 (c). See also Maryland Rule 2-510(i). Once the person is before the court and the immediate proceeding has been concluded, the attachment or warrant has achi eved its missio n and has no f urther ef fica cy. A court ma y not, as it did in these cases, use such an attachment or warrant as a pretext for continuing the incarceration of the defendant following that immediate proceeding. As neither Arrington nor McLong has specifically com plained ab out any pre-he aring deten tion pursua nt to the ben ch warra nt, we do not address that issue as to them. -30- through civil contempt proceedings.13 If the court desires to proceed with the civil contempt but, due to the defendant s current inability to meet any meaningful purge, is precluded from imposing a sanction of incarceration, it should explore the reasons why the defendant is impecunious and attempt to deal with that situation. Usually, as here, the problem is lack of steady employment, which may, in turn, be occasioned by a variety of circumstances: mere indolence or wilful defiance (voluntary impoverishment), physical, mental, or emotional disability, lack of general or specialized education, lack of a diploma, degree, certificate, or license of some kind that the defendant, with some reasonable effort and time, may be capable of obtaining, or a disabling addictio n. 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 13 It is often supposed that incarceration under a determinate sentence does nothing to produce support payments. In many instances, that may turn out to be so, but it is not necessarily so. A defendant incarcerated in a local detention center under a criminal contempt sentence may be placed on work release or given employment in the prison setting. In that event, the law requires that part of his or her earnings be used to pay suppo rt obliga tions. See Maryland Code, §§ 11-602, 11-604, and 11-701 through 11-725 of the Correctional Services Article. -31- 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 complianc e. It may modify the requirements as c ircumstances warran t. 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.14 If, as a result of that defiance, the un derlying support order remains in a rrears, the State s Attorney, if so inclined, may pursue a criminal action under Family Law Article, § 10-203. Arrington s Case The dispo sition in Arrin gton s case was pate ntly unlawfu l. He was given a de terminate sentence of eighteen months to the Division of Correction, which is a criminal sentence not permitted in a civil contempt case. That kind of disposition cannot be saved by adding a purge, especially when the purge is one that the court must have known Arrington could not immediately meet. The purge was that he enter Dismas House a correctional facility and secure full-time employment with earnings withholdings . . . As we indicated, not only was 14 Theoretically, it would be possible to coerce compliance with these kinds of directives through a civil contempt proceeding, but the 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. -32- there no indication at the time that Arrington had been or would be accepted into Dismas House the ev idence showe d only that he had been fo und an acceptab le candidate for wo rk release but, even if he would be accepted into the Dismas House program, there was no indication that he could secure full-time employment in time to avoid the incarceration, which is what is required in a civil contempt case. The finding of contempt can stand, but the sanction imposed, even though no longer in effect, must be vacated. McLong s C ase The sanc tion in Mc Long s c ase is equally un lawful. H e too was given a de terminate sentence, of two years, which is itself unauthorized, with or without a purge. The initial purge of $2,000 was obviously one that McLong could not meet; nor was the amended purge of $200 and presentation of a GED certificate one that the court had any reason to believe could be instantly met. It appears that the amended order was entered w ithout a hearing, and therefo re without any evidence bearing on McLong s ability to meet that purge, and, indeed, without even giving McLong an opportunity to show that he could not meet the purge. As we indicated, one may not obtain a GED certificate unless and until the person passes a battery of tests, and there is nothing in the record to show tha t McLo ng, still incarcera ted, had an y ability even to take the tests. As with Arrington, the finding of contempt may stand, but the sanction must be vacated. -33- IN NO. 10 (ARRINGTON), ORDERS OF OCTOBER 25 AND NOVEMBER 13, 2006 VACATED; COSTS TO BE PAID BY APPELLEE; IN NO. 26 (McLON G), ORDERS O F FEBRUA RY 1, 2007, AND M AY 15, 2007 VACATED; COSTS TO BE PAID BY APPELLEE. Chief Ju dge Bell joins the judg men t only. -34-
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