McDaniel v. McDaniel

• Decision Date: 10 February 1970
• Docket Number: No. 178,178
• Citation: 256 Md. 684,262 A.2d 52
• Parties: Nelson Lynn McDANIEL v. Ann Christine McDANIEL.
• Court: Maryland Court of Appeals

Page 684

256 Md. 684

262 A.2d 52

Nelson Lynn McDANIEL v. Ann Christine McDANIEL.

No. 178.

Court of Appeals of Maryland.

Feb. 10, 1970.

Thomas L. Hennessey, Towson, for appellant.

A. Frederick Taylor, Towson, for appellee.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

McWILLIAMS, Judge.

The extraordinary thing about this case is the number of judicial and professional man-hours it has consumed, to so little purpose. Five years ago the appellee (Christine) sued the appellant (McDaniel) for a divorce a mensa and the usual ancillary relief. McDaniel responded with a cross-bill for a divorce a vinculo. A year and a half later, 6 July 1966, the parties were divorced a vinculo but McDaniel was ordered by Judge Turnbull to pay $30 per week, through the probation department of the Circuit Court for Baltimore County, for the support of three infant children.

Within 90 days Christine was back in court asking to have him cited for contempt because he was already $210 in arrears. On 7 December 1966 Judge Proctor, after a hearing, dismissed the contempt citation and ordered him to pay the $30 per week plus five dollars per week on account of the arrears, which by that time were $270.

A month later Christine again sought a citation for contempt, the amount in arrears being $390. When McDaniel was returned 'non est' another petition was filed; the arrears had risen to $540. This was also returned 'non est.' On 18 April the probation department filed a petition for attachment for contempt. Judge Haile, after a hearing, dismissed 'the charge.' The docket entry states that the '$30 per week still stands.' On 26 July 1967 Christine again filed a petition for attachment for contempt; the arrears were then $978. McDaniel's present attorney entered his appearance on 21 September. After a hearing on 6 October Judge Proctor found him guilty of contempt, sentenced him to six months in jail, suspended the sentence, placed him on probation and ordered him to pay $10 per week on account of the arrears and to maintain the weekly payments of $30.

On 7 March 1968 Christine filed another petition to have him attached for contempt. The arrears at that time were $1,438. On 20 September Judge Jenifer, after a hearing, dismissed Christine's petition on condition that McDaniel pay $300 immediately and continue the regular payments of $30 per week 'pending action by the court on (a) petition for reduction to be filed.' McDaniel paid the $300 and on 16 October he filed a petition for the modification of the support order, claiming illness, physical inability to work and the emancipation of the oldest child. Christine resisted and submitted interrogatories. In March 1969 Christine filed another petition for attachment; the arrears were alleged to be $1,983. The case came on for a hearing before Judge Maguire on 28 April 1969. Both parties and a representative of the probation department appeared and testified. Judge Maguire commented on McDaniel's earlier appearances before other judges of the court and the inefficacy of their attempts to resolve the problem. He sentenced McDaniel to be confined for a period of one year in the Baltimore County Jail. Additionally he ordered the warden to place McDaniel on a 'work-release' program pursuant to the provisions of Code, Art. 27, §§ 645K-645S (1967 Repl.Vol.). He directed his earnings to be disbursed weekly as follows:

.$7.00-McDaniel's board at jail.

30.00-To Christine for the children.

15.00-Personal and incidental expenses of McDaniel.

10.00-On account of arrears.

Any unexpended balance to be held for the account of McDaniel and paid to him upon his discharge.

I.

McDaniel insists that Judge Maguire had no authority to order him confined for a fixed term since he was found guilty of a civil contempt. Although we do not agree that the imposition of a fixed sentence in a case like this is per se improper, we think the order should be modified.

The distinction between civil and criminal contempt ¹ has not escaped us. In Donner v. Calvert Distillers Corp., 196 Md. 475, 77 A.2d 305 (1950), noted in 12 Md.L.Rev. 241 (1951), Chief Judge Marbury quoted from the opinion of Mr. Justice Lamar in Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911):

"It is not the fact of punishment, but rather its character and purpose, that often serve to distinguish between the two classes of cases. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. It is true that punishment by imprisonment may be remedial as well as punitive, and many civil contempt proceedings have resulted not only in the imposition of a fine, payable to the complainant, but also in committing the defendant to prison. But imprisonment for civil contempt is ordered where the defendant has refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in its character. Imprisonment in such cases is not inflicted as a punishment, but is intended to be remedial by coercing the defendant to do what he had refused to do. The decree in such cases is that the defendant stand committed unless and until he performs the affirmative act required by the court's order." Id. at 484-485, 31 S.Ct. at 498 (emphasis added).

More recently, in Winter v. Crowley, 245 Md. 313, 226 A.2d 304 (1967), we indicated that Mrs. Winter's refusal to comply with an order directing the delivery of the custody of her children to Crowley resulted in a civil contempt. In addition to quoting with approval the Supreme Court's distinction in Gompers, Judge Barnes adopted a delineation by the Supreme Court of Pennsylvania in respect of the factors which generally point to a civil contempt; for the Court, he said:

'* * * (1) the complainant is usually a private person as opposed to the State; (2) the contempt proceeding is entitled in the original action and filed as a continuation thereof as opposed to a separate and independent action; (3) holding the defendant in contempt affords relief to a private party; (4) the relief requested is primarily for the benefit of the complainant; (5) the acts complained of do not of themselves constitute crimes or conduct by the defendant so wilful or contumelious that the court is impelled to act on its own motion. Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956) * * *.' Id. at 317, 226 A.2d at 307.

Applying Judge Barnes' analysis, McDaniel's characterization of Judge Maguire's contempt finding as 'civil' rather than 'criminal' would seem to be correct. And one might observe that the conclusion herein reached in respect of the nature of contempt proceedings to enforce payment of support money appears to be in accord with the 'great weight of authority.' See, e.g., 2 W. Nelson, Divorce and Annulment § 16.06 (2d ed. 1961).

As earlier noted, imprisonment for civil contempt is "inflicted not as punishment, but is intended to be remedial by coercing the defendant to do what he had refused to do." Donner, supra (quoting from Gompers, supra). It would seem to follow then, that '(i)mprisonment cannot be considered coercive unless the contemnor is kept in prison only until he complies with the relevant court order.' ² Comment, The Coercive Function of Civil Contempt, 33 U.Chi.L.Rev. 120, 130 (1965). For this reason the authorities are in almost unanimous agreement that the imposition of a fixed term of imprisonment for civil contempt is improper where the contemnor is given no opportunity to purge himself of the contempt. See Allen v. Smith, 237 A.2d 354 (Vt.1967); Knaus v. Knaus, supra, 127 A.2d at 674; Duell v. Duell, 85 U.S.App.D.C. 78, 178 F.2d 683, 14 A.L.R.2d 560 (1949); Sullivan v. Sullivan, 23 Tenn.App. 644, 137 S.W.2d 306 (1939); Brown v. Brown, 205 Ind. 664, 187 N.E. 836 (1933); 17 Am.Jur.2d Contempt § 111 (1964); 17 C.J.S. Contempt § 93 (1963); 2 W. Nelson, supra at § 16.20; and Beale, Jr., Contempt of Court, Criminal and Civil, 21 Harv.L.Rev. 161, 174 (1908). The law of Maryland seems to be generally in accord. Maryland Rule 636 provides:

'Where a person shall be in contempt for disobedience, nonperformance or nonobservance of any process, rule or order of a court, or for any matter, whereby a contempt may be incurred, such person shall, for every such contempt, and before he shall be released or discharged from the same, pay to the clerk of the court * * * such sum as the court may fix, as a fine for the purgation of every such contempt. The person being in court upon any process of contempt or otherwise, upon the order of the court, shall stand committed and remain in close custody until the said process, rule or order shall be fully performed, obeyed and fulfilled, and until the said fine for such contempt, and the costs, shall be fully paid.' (Emphasis added.)

To the same effect is Rule 685 c. See Johnson v. Johnson, 241 Md. 416, 216 A.2d 914 (1966), and the cases therein cited.

Christine contends that the punishment imposed by the court below is warranted under the decisions of this Court and she cites Freedman v. State, 176 Md. 511, 6 A.2d 249 (1939); Ex parte Bowles, 164 Md. 318, 165 A. 169 (1933); Ex parte Sturm, 152 Md. 114, 136 A. 312, 51 A.L.R. 356 (1927); and Skirven v. Skirven, 154 Md. 267, 140 A. 205, 56 A.L.R. 697 (1928). The first three cases, however, are inapplicable since they involve the validity of an order for criminal contempt. Although a fixed sentence (ten days) for civil contempt was involved, the last case is also inapplicable since the validity of the sentence was not questioned.

It would seem, therefore, that the punishment imposed by Judge Maguire is not entirely correct because his order does not provide for McDaniel's release in the event the arrearage is paid prior to the expiration of the one year term. It must not be supposed,...