Kammerman v. Kammerman

• Decision Date: 23 May 1988
• Docket Number: No. 86-1178.,86-1178.
• Citation: 543 A.2d 794
• Parties: Gershon KAMMERMAN, Appellant, v. Trudy KAMMERMAN, Appellee.
• Court: D.C. Court of Appeals

Page 794

543 A.2d 794

Gershon KAMMERMAN, Appellant, v. Trudy KAMMERMAN, Appellee.

No. 86-1178.

District of Columbia Court of Appeals.

Argued January 14, 1988.

Decided May 23, 1988.

Allan I. Mendelsohn, with whom Marvin L. Szymkowicz, Washington, D.C., was on the brief, for appellant.

Louis Fireison, with whom Daniel J. Blum, Bethesda, Md., was on the brief, for appellee.

Before FERREN, TERRY, and STEADMAN, Associate Judges.

FERREN, Associate Judge:

This case presents primarily one question: whether a parent in arrears on a District of Columbia child support order under the Uniform Reciprocal Enforcement of Support Act (URESA) can successfully defend a motion for civil contempt by showing, not that he has complied with the URESA order as written, but that he has satisfied a Maryland divorce decree, incorporating a separation agreement, which he says as a matter of law limits his support obligation under the URESA order. At no time has he appealed or sought to modify the URESA order to bring it into conformity with his Maryland court-endorsed separation agreement. He simply has treated the URESA order as though it were limited by the separation agreement, has stopped paying child support in accordance with the terms of that agreement, and thus has waited to invoke a Rule 60(b)(5)-type argument for relief from the URESA order until threatened with contempt of court. We agree with the trial court that appellant's strategy fails. He cannot defend a motion for contempt by collaterally attacking the previously unchallenged URESA order on which the motion is based; principles of claim preclusion—res judicata— stand in his way. Accordingly, we affirm the trial court order finding appellant over $9,000 in arrears in child support and holding him in contempt, although we must remand for entry of an amended judgment reflecting a minor arithmetical correction.

I.

Appellant Gershon Kammerman and appellee Trudy Kammerman were divorced in 1974 by order of the Circuit Court for Montgomery County, Maryland. The final decree incorporated, but did not merge, their voluntary separation agreement. That agreement provided:

The Husband agrees to pay to Wife the sum of Twenty Dollars ($20.00) per week for the support and maintenance of each of the children of the parties, to continue until such child shall die, marry, become self-supporting, or otherwise become emancipated, whichever event shall first occur.

By 1977, appellant, then a District of Columbia resident, had become in arrears on his child support obligation. Appellee filed a petition under URESA¹ in the Circuit Court for Montgomery County requesting payment of the arrearages and an increase in child support to $80 per week. See generally MD. FAMILY LAW CODE ANN. §§ 10-301 to -340 (1984 & 1987 Supp.). Pursuant to URESA procedure, the petition was transferred by Maryland, as the initiating state, to the District of Columbia, the responding jurisdiction. See D.C.Code §§ 30-302(2), -302(3), -314(a) (1981).

The Superior Court, after a hearing on appellee's URESA petition at which appellee was represented by Corporation Counsel and appellant by a private attorney, ordered appellant on March 24, 1978, to pay a unitary award of $40 per week for the support of the parties' two children.² The order was open-ended; it stated clearly that the sum of $40 would be payable every week "for the support and maintenance of his aforesaid dependents until further order of this Court." Neither party appealed that order or has ever moved to have it modified.

Interestingly, at the 1978 hearing the parties referred to the 1974 Maryland divorce decree, but no one mentioned the parties' separation agreement. Thus, the court did not rely upon that agreement, as such, in entering its order, although the $40 happened to correspond to appellant's weekly child support obligation, at the time, under the divorce decree that incorporated the agreement. For the time being, therefore, appellant's obligations under the URESA order and the separation agreement did not conflict.

Several months after entry of the 1978 URESA order, Corporation Counsel, on behalf of appellee, filed a motion for entry of judgment against appellant for arrearages due. Judgment was entered. In September 1979, Corporation Counsel filed a writ of attachment seeking to attach appellant's wages to satisfy the judgment of arrearages. In February 1980, Corporation Counsel filed another motion for entry of a judgment of arrearages but withdrew it when appellant paid the amount requested. In February 1981, Corporation Counsel filed a second writ of attachment. On March 16 1982, the trial court held a hearing on this second writ; both parties had counsel.

At the 1982 hearing, appellant argued that the underlying judgment of arrearages based upon the 1978 order was in error. Because one of the parties' two children had reached age 18 in 1980, he contended, his obligation to provide support for that child under the separation agreement incorporated in the 1974 divorce decree had terminated; accordingly, he argued, his corresponding obligation under the 1978 URESA order had terminated as well. The trial court quashed the writ on other grounds, however, and never reached appellant's objection to the continuing validity of the 1978 order as written.

Although appellant's interpretation of the 1978 order was not decided at the hearing, Corporation Counsel, representing appellee, had argued against that interpretation, noting that the 1978 order "for $40 per week was not broken down per child." Thus, as of March 16, 1982, appellant was on notice of a genuine dispute over the interpretation of his continuing support obligation. Notwithstanding this obvious disagreement, however, appellant took no action to vacate or modify the 1978 order based, for example, on partial satisfaction of the judgment. See Super.Ct.Dom.Rel.R. 60(b)(5). Instead, he merely stopped paying support as each child reached age 18, applying his own, unilateral interpretation of his obligation without resort to the court.

In October 1982, Corporation Counsel filed a motion for contempt against appellant based upon accumulated arrearages allegedly due under the 1978 URESA order. On the initial hearing date, appellant moved for a continuance. The continuance was granted and a new hearing date set. On that date, appellant received a second continuance but was required to sign a notice to return to court. On the next hearing date, however, appellant failed to appear. The trial court issued a bench warrant for his arrest. Appellee, through private counsel, filed another contempt motion in November 1984. That motion apparently was not pursued.

Neither party took further action until February 1986, when appellee, represented by private counsel, filed a third contempt motion. Appellant appeared in court to oppose the motion and posted a $300 bond to avoid incarceration under the 1982 bench warrant, which was still outstanding. At the hearing on the contempt motion in July 1986, the court took testimony and heard argument from both parties, each of whom was represented by counsel. Appellant argued that the 1978 URESA order was no longer valid because by 1986 both children had reached age 18 and thus his support obligations under the separation agreement, which was controlling here, had ceased. Appellee replied that she understood appellant's support obligations under the agreement extended until each child, respectively, reached age 21, but that in any event the 1978 URESA order controlled, imposing a unitary support obligation that continued, in full, until both children reached age 21 (which had occurred by early 1986).³

The court rejected appellant's interpretation and discredited much of his testimony. On July 11, 1986, the court filed an order ruling that the 1978 URESA order obligated appellant to pay $40 per week in child support until both children reached age 21, finding appellant $9,560 in arrears, holding him in contempt of court, and ordering him committed to the District of Columbia Jail for 75 days or until such earlier time as he paid the arrearages. Appellant noted this appeal.⁴ He also moved for a stay of execution of the contempt order. We granted the stay.

II.

Before addressing the substantive issues on appeal, we must clarify the procedural posture. Appellant's defense to the motion for contempt was premised solely on the argument that, as of much earlier dates (when his children turned 18 in 1980 and 1983, respectively), he could not be held to a duty of support under the 1978 URESA order because he no longer was obliged to pay support under the parties' separation agreement. Although the trial court never explicitly characterized appellant's defense, the court in effect treated appellant's opposition as a Rule 60(b)—type motion for relief from the 1978 URESA order. See Super. Ct.Dom.Rel.R. 60(b) (identical to Super.Ct. Civ.R. 60(b)). It is the continuing validity of this underlying 1978 order that appellant addresses, once again, on appeal. Appellant does not seriously dispute that, unless the 1978 support order had become "void" or had been legally "satisfied" at the time of the contempt adjudication, he was in arrears under the literal terms of the order and the adjudication of contempt was properly entered against him. This appeal, therefore, focuses exclusively on the trial court's rejection of appellant's Rule 60(b)-type defense to an order that otherwise provides a valid basis for a contempt adjudication.⁵

To prevail completely, appellant must establish at least two propositions: first, that the word "emancipated" as used in the separation agreement means age 18, the age of majority under Maryland law; second, that his obligation under the 1978 URESA order incorporated, without more, his support obligation under the separation agreement⁶

The trial court apparently believed that, under the agreement, "emancipated" meant age 21⁷ We cannot...