Rawlings v. Rawlings
| Decision Date | 05 February 2001 |
| Docket Number | No. 26,26 |
| Citation | 362 Md. 535,766 A.2d 98 |
| Parties | Michael L. RAWLINGS, v. Deborah M. RAWLINGS. |
| Court | Maryland Court of Appeals |
Mark Gitomer (The Law Office of Mark Gitomer, on brief), Baltimore, for petitioner.
Kenneth P. Montgomery (Akman & Associates, P.C., on brief), Luthervlle, for respondent.
Argued before BELL, C.J., ELDRIDGE, RODOWSKY,1 RAKER, WILNER, CATHELL and HARRELL, JJ HARRELL, Judge.
On 19 March 1999, the Circuit Court for Howard County found Michael L. Rawlings, Petitioner, in constructive civil contempt, pursuant to Maryland Rule 15-207(e),2 of an 8 April 1996 Pendente Lite Order to pay child support. The unpaid child support totaled $33,679.00. On 29 March 1999, the Circuit Court directed Petitioner serve six months in the Howard County Detention Center, with work release, and set a purge amount of $3,367.90. The Court of Special Appeals, in an unreported decision, affirmed the judgment of the Circuit Court. We granted Petitioner's petition for writ of certiorari, Rawlings v. Rawlings, 359 Md. 28, 753 A.2d 1 (2000), to consider the following questions:
Michael L. Rawlings and Deborah M. Rawlings were married on 1 November 1980. Two children were born to the parties during their marriage: Sabrina Lynn Rawlings, born 14 April 1983, and Robert Michael Rising Rawlings, born 28 May 1985. On or about 16 February 1995, the parties separated.
On 22 August 1995, Respondent filed a Complaint to Establish Custody and For Other Relief in the Circuit Court for Howard County asking, in part, for custody of the parties' two children and for child support. The subject Pendente Lite Order was docketed on 9 April 1996. The Order provided, in part, that Respondent be granted pendente lite custody of the two children, that Petitioner have reasonable visitation of the children, and that Petitioner pay monthly child support of $854.00, accounting from 22 August 1995, plus an additional $100.00 per month against a child support arrearage of $4,524.00 as of 22 March 1996.
On 21 November 1996, after testimony was taken in front of a Special Master,4 the Circuit Court granted Respondent a final divorce from Petitioner and ordered that the provisions of the April 1996 Pendente Lite Order be incorporated in the judgment and remain in full force and effect.5
Respondent filed a Complaint for Contempt on 27 October 1997 based on Petitioner's alleged failure to pay the ordered child support. On 19 March 1999, the Circuit Court held a civil contempt hearing, the content of which is discussed infra parts III & IV, and found Petitioner in civil contempt of the terms of the 8 April 1996 Pendente Lite Order and as those terms were incorporated in the 21 November 1996 final divorce order. On 29 March 1999, the court sentenced Petitioner to serve six months in the Howard County Detention Center on work release. The court set a purge amount of $3,367.90 and an appeal bond of $33,679.00.
Before the Court of Special Appeals, Petitioner raised the following two issues pertinent to our consideration of the case before us: (1) whether the Circuit Court erred in finding Petitioner in contempt for failure to pay child support; and (2) whether the Circuit Court erred in setting a purge provision in the amount of $3,367.90 and ordering Petitioner incarcerated when the evidence failed to show that Petitioner had the present ability to pay that amount. The Court of Special Appeals, in an unreported decision, affirmed.
The intermediate appellate court resolved that the Circuit Court did not err in finding Petitioner in contempt for failure to pay child support. The court stated that Maryland Rule 15-207(e), supra note 1, which became effective 1 January 1997 and authorizes a court to make a finding of constructive civil contempt in a support enforcement action even if the alleged contemnor may not have the present ability to comply with the support order, should not be applied retrospectively. In this regard, the court apparently accepted Petitioner's characterization that, because "some of his child support payments were due prior to January 1, 1997," application of Rule 15-207(e) to the evidence adduced at the 19 March 1999 contempt hearing regarding his total unpaid child support, most of which accrued after 1 January 1997, constituted an impermissible retrospective application of the Rule. Nonetheless, the court then appeared to apply the standards set forth in Rule 15-207(e) to Petitioner's case.6 As to this issue, the intermediate court concluded that, on the evidence, "it was proper for the court to find that ... [Petitioner] had the past ability to pay the child support and was therefore in contempt for failing to do so." (Emphasis added).7 Lastly, the Court of Special Appeals determined that the Circuit Court did not err in setting a purge provision in the amount of $3,367.90 and ordering Petitioner incarcerated because he "failed to show that he lacked the then-present ability to pay the purge figure ... and, therefore, the court was within its discretion to sentence him to six months in jail on work release." (Emphasis added).
We determine that the Circuit Court and the Court of Special Appeals did not err in their application of Rule 15-207(e) to the facts of the present case. We further conclude that the Circuit Court did not err in finding Petitioner in contempt for failure to pay child support as there was sufficient evidence to reach that conclusion. We resolve, however, that the Circuit Court erred in establishing the purge amount at $3,367.90 and ordering Petitioner incarcerated on the record before it. On remand, evidence may be adduced as to Petitioner's present ability to pay an appropriate amount as a purge provision or, pursuant to Rule 15-207(e), if Petitioner lacks the present ability to purge, the court may fashion directions as to how otherwise he is to make payment in the future or perform acts to enable him to make such payments. See supra note 1; infra pp. 104-105.
We first consider whether and how Rule 15-207(e) may apply to the present case, and if so, whether Rule 15-207(e) applies to the entire amount owed or only to that child support accruing and unpaid after 1 January 1997, the effective date of the Rule. Rule 15-207(e), supra note 1, authorizes the court to make a finding of constructive civil contempt even though the alleged contemnor may not have the present ability to pay the ordered child support.8 First, the moving party must demonstrate by clear and convincing evidence "that a prior court order directed the party to pay the support or alimony and the alleged contemnor failed to make the court-ordered payments." Jones v. State, 351 Md. 264, 273, 718 A.2d 222, 227 (1998) (summarizing Rule 15-207(e)). The contemnor may then defend by establishing, by a preponderance of the evidence, "that the failure to pay was not an act of willful or contumacious non-compliance." Id. If the court makes a finding of contempt, then the court "must issue a written contempt order that specifies, in clear language, the amount of arrearage due, the sanction for the contempt, and what the contemnor must do to purge him or herself of the contempt." Id.
Rule 15-207(e) modifies the standard for determining contempt in child support cases explained in Lynch v. Lynch, 342 Md. 509, 677 A.2d 584 (1996). In Lynch, we explained that if a child support obligor could show that he or she did not have the present ability to pay the amount owed, then he or she could not be held in civil contempt. Lynch, 342 Md. at 521-22, 677 A.2d at 590. We stated:
Where the order is one prescribing or prohibiting a specified cause of conduct, the required defense showing is that the defendant is unable to conform his or her conduct in compliance with the court order. Where the order calls for the payment of money, the defendant is entitled to the "opportunity to show that he [or she] had neither the estate nor the ability to pay his [or her] obligation." [Johnson v. Johnson, 241 Md. 416, 420, 216 A.2d 914, 917 (1966) ]. In that situation, "[m]oreover, the issue is not the ability to pay at the time the payments were originally ordered; instead, the issue is his present ability to pay." Elzey [v. Elzey ], 291 Md. [369,] 374, 435 A.2d [445,] 448 [(1981) ]. Only if he or she fails to show such inability is a finding of contempt and subsequent imprisonment permitted. Id. See McDaniel v. McDaniel, 256 Md. 684, 692-93, 262 A.2d 52, 57 (1970)
; Schwartzman v. Schwartzman, 204 Md. 125, 135, 102 A.2d 810, 815 (1954); Oles Envelope Corp. v. Oles, 193 Md. 79, 92, 65 A.2d 899, 905 (1949); Dickey v. Dickey, 154 Md. 675, 681, 141 A. 387, 390 (1928).
Id. (emphasis added) (second, third, and fifth alterations in original).
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