Collison v. Agyemang
| Decision Date | 14 February 2023 |
| Docket Number | 838-2022 |
| Parties | SAMUEL COLLISON v. RUTH AGYEMANG |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Montgomery County Case No.: 147656FL
OPINION
Wells C.J Samuel Collison ("Father") appeals orders of the Circuit Court for Montgomery County adjudicating him in contempt and sentencing him to 90 days' incarceration in the Montgomery County Detention Center.
We affirm in part and vacate in part. We affirm the order adjudging Father in contempt and vacate the order of incarceration.
Father and Ruth Agyemang ("Mother") are the parents of a minor child ("Child"). On September 15, 2017, Father, who was self-represented, filed a complaint for custody of Child, alleging that Mother had denied him visitation with Child, and asking for joint legal and physical custody. Mother, through counsel, filed an answer and counter-complaint, denying the allegation in the complaint and seeking sole physical and legal custody of Child and child support from Father.
Following a pendente lite hearing before the family magistrate on April 6, 2018, the court entered a "Consent Order" directing Father, whom the parties stipulated was unemployed and "experiencing significant health issues," to pay $150 per month in child support. On May 11, 2018, the court, following a hearing, issued an order, by agreement of the parties, granting Mother sole legal and primary physical custody of Child and granting Father supervised visitation. The court further ordered that Father pay child support of $150 per month, complete the Abused Persons Program, and notify Mother if he received Social Security Disability benefits.
Father filed a petition for contempt on November 7, 2018, alleging that Mother had denied him visitation without cause. Mother responded by filing a petition for contempt against Father on February 11, 2020, alleging that he had failed to pay child support, complete the Abused Persons Program, and notify her of his receipt of Social Security Disability benefits. Mother asserted in her petition that she "[did] not want the Court to order jail time to enforce its Order."
On April 9, 2021, the circuit court issued an order suspending Father's in-person visitation with Child until he completed the Abused Persons Program and COVID-19 restrictions were suspended. The court permitted Father to have two videoconference calls per month with Child. The court further ordered that Father comply with the May 2018 order, and that child support be increased to $206 per month, beginning on March 9, 2021.
The court held a remote status hearing on October 21, 2021. Mother appeared with counsel and Father appeared without counsel. Noting that the parties had not reached an agreement, the court scheduled a hearing on the contempt petitions for November 24, 2021. Mother's counsel indicated that "[Mother] would be asking for jail in regard to the contempt as there's been no progress regarding any of the items that we first discussed on January 5th of 2021." The court stated that if Father was "found in contempt," he "could be subject to incarceration." The court advised Father that he was "entitled to have a lawyer represent [him] at [the contempt] hearing," and that "if [he came] to the … hearing without a lawyer, then it could be deemed that you'll have waived your right to a lawyer."
The contempt hearing proceeded on February 1, 2022. Mother appeared with counsel. Father did not appear. Mother's counsel indicated that Father had notified him prior to the hearing that he had a blood clot and had requested his consent to appear remotely by videoconference. Mother's counsel's objected to Father's request, and the hearing proceeded in Father's absence. Mother's counsel argued that Father was in contempt of the 2018 order and that he had "the opportunity to purge these contempts[,]" but had failed to do so. Mother's counsel asserted that "even if [Mother] could be said to be in contempt from [] November 2018 until the beginning of 2020, she has attempted to purge this and has opened up the door for communication consistently and has been the one who has been setting up the visits and ensuring that [Father] has access."
The court denied Father's contempt petition, finding that Mother had attempted to facilitate visitation. The court granted Mother's contempt petition, finding that Father had failed to complete the Abused Persons Program, failed to provide his social security number to Mother, and failed to make any child support payments since 2018. The court also granted Mother's motion for modification and ordered that Father's visitation be at Mother's sole discretion.
The court entered judgment in favor of Mother in the amount of $7,422 for child support arrears and awarded Mother attorney's fees in the amount of $6,282. Mother also requested at the hearing that the court impose a jail sentence. Pursuant to her request, the court issued a body attachment for Father to return to court for "a sentencing date to determine whether or not incarceration is appropriate…."
After the February 1 hearing, Father sent letters to the court explaining that he had not appeared at the hearing for medical reasons, and that he had contacted the court and Mother's counsel prior to the hearing to notify them of his condition. Father further stated that his monthly expenses exceeded his income and submitted documentation from the Montgomery County Office of Child Support showing that his total outstanding arrearage as of March 1, 2022 was $4,791.07.
On June 16, 2022, Father appeared without counsel for "a sentencing hearing on the contempt." Mother's counsel requested that the court impose "jail time" as it "might be the only thing that wakes up [Father] to understand that there is an order that he has to abide by." Father responded that he had "proof of all the child support[]" and documentation to support his medical condition, which he had previously submitted to the court. In response to the court's question as to whether he had paid child support of $206 per month, Father stated that he had made support payments and offered proof of his payments. He further stated that child support enforcement had informed him that he did not owe $7,000.
The court asked Father if he wanted to say anything about whether the court should impose a jail sentence for his "repeated contempt of court," and Father replied, "I don't understand." The court "sentenced" Father to "90 days in the local detention center." Father protested that he did not "understand what is going on" and asked if the court wanted him "to make some payment today, like 1,000 or something?" The court sentenced Father to 90 days in the Montgomery County Detention Center.
Father noted an appeal and moved for a stay of judgment and release from incarceration pending appeal. On August 5, 2022, the circuit court granted Father's motion to stay judgment and ordered his release from the detention center pending appeal.[1]
On appeal from a decision holding a party in contempt, we will not disturb the order "absent an abuse of discretion or a clearly erroneous finding of fact upon which the contempt was imposed." Kowalczyk v. Bresler, 231 Md.App. 203, 209 (2016) (citation omitted). Where, however, "the order involves an interpretation and application of statutory and case law, we must determine whether the circuit court's conclusions are legally correct under a de novo standard of review." Id. (citations omitted).
Maryland recognizes two forms of contempt: " " Hammonds v. State, 436 Md. 22, 33 (2013) (quoting Smith v. State, 382 Md 329, 338 (2004)). Civil contempt "proceedings are generally remedial in nature and are intended to coerce future compliance," whereas criminal contempt is designed to punish past misconduct. State v. Roll & Scholl, 267 Md. 714, 728 (1973); accord Breona C. v. Rodney D., 253 Md.App. 67, 73-74 (2021) (citing Dodson v. Dodson, 380 Md. 438, 448 (2004)). Because the sanction for civil contempt is coercive, it must allow for "purging that permits the defendant to avoid the penalty by some specific conduct that is within the defendant's ability to perform." Kowalczyk, 231 Md.App. at 209 (citing Bryant v. Howard Cnty. Dep't Soc. Servs. ex. rel. Costley, 387 Md. 30, 46 (2005)); accord Stevens v. Tokuda, 216 Md.App. 155, 171 (2014). Criminal contempt is "purely punitive" and does not require a purging provision. Roll & Scholl, 267 Md. at 728.
Constructive civil contempt proceedings may be initiated by a private party, the State or the court. See Md. Rule 15-206. Constructive criminal contempt, on the other hand, may be initiated only by the court or the State and must be docketed as a separate criminal action. See Rule 15-205. In the present case, the contempt order did not indicate the nature of the contempt the trial judge sought to impose on Father. Because Father had no authority to file a petition for criminal contempt, the order must be deemed as one for civil contempt.[2] See e.g., Bryant 387 Md. at 34 n.1 (). Compare Rules 15-205(b) and 15-206(b).
Father argues that the circuit court erred by conducting the February 1, 2022 contempt hearing in his absence and finding him in contempt without...
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