Rivera v. Zysk

• Decision Date: 08 February 2001
• Docket Number: No. 2682,2682
• Citation: 136 Md. App. 607,766 A.2d 1049
• Parties: Wilson A. RIVERA v. Victoria Ann ZYSK.
• Court: Court of Special Appeals of Maryland

766 A.2d 1049

136 Md. App. 607

Wilson A. RIVERA v. Victoria Ann ZYSK.

No. 2682, Sept.Term, 1999.

Court of Special Appeals of Maryland.

February 8, 2001.

Gregory L. Stephenson, Glen Burnie, for appellant.

Stacy LeBow Siegel (Rachel E. Murray and Stacy LeBow Siegel, L.L.C., on the brief), Towson, for appellee.

Argued before THIEME,¹ KENNEY, and JAMES S. GETTY, (Retired, specially assigned), JJ. JAMES S. GETTY, Judge (Retired, Specially Assigned).

Wilson A. Rivera, hereinafter referred to as appellant, filed a timely appeal from several orders entered by the chancellor in the Circuit Court for Baltimore County involving petitions for constructive contempt and modification of prior orders for alimony and child support.

Appellant was divorced from his wife, Victoria A. Zysk,² the appellee herein, by judgment of the circuit court dated October 22, 1998. The divorce judgment incorporated an agreed "Stipulated Property Distribution," and required that appellant pay child support of $580 per month for support of his son Michael, age fourteen, whose primary physical custody was granted to his mother. Appellant also agreed to pay alimony of $1,800 per month indefinitely.

By letter dated July 30, 1999, which was nine months after the divorce was granted, appellant was notified by his employer, Dynatech Integrated Systems, that his employment was being terminated, effective August 31, 1999, "due to the lack of viable work matching skills." Appellant had been employed by Dynatech as a project manager earning $87,900 annually. Appellee was employed as a teacher in a private school earning approximately $23,000 per year.

In October 1999, appellant began paying child support based upon his recalculation of the child support guidelines. He utilized as his income $840 per month in unemployment benefits and $275 per month rental income from a part-time tenant in his home. For the months of October, November, and December 1999, he paid a total of $422 in child support and no alimony.

On or about September 13, 1999, appellant filed a petition for modification of child support and alimony. On November 18, 1999, appellee filed a petition for contempt, alleging that appellant owed $4,472 for child support and alimony for October and November 1999.

A hearing on appellee's petition for contempt and appellant's petition for modification was held on December 14, 1999. On January 24, 2000, the court held appellant in contempt for failure to pay alimony and child support in accordance with the divorce decree and set a purge provision of $6,718 ($2,380 per month X 3, for 4th quarter, less $422 paid), which was reduced to judgment. On appellant's petition for modification, the court modified appellant's support obligation for the first three months of the year 2000 by abating the alimony for that period and reducing the child support to $334 per month for those three months.

In this appeal, appellant questions whether

1. The court erred in failing to modify his support obligations for October, November, and December during which time he was involuntarily unemployed.

2. The court erred in finding appellant in contempt and in entering judgment for $6,718 arrearage.

3. The court erred in deciding an issue of a QDRO without holding a hearing requested by appellant.

4. The court erred in awarding appellee $1,000 toward counsel fees.

Burden of Proof

In a case of civil contempt, the intended purpose of the proceeding is remedial, intending to benefit the recipient of the funds by compelling the payor to comply with the existing court order. The petitioner's burden of proof, therefore, is to prove 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. Conversely, the burden of proof on the alleged contemnor is to prove by a fair preponderance of the evidence that, from the date of the support order through the date of the contempt hearing, the alleged contemnor (i) never had the ability to pay more than the amount actually paid and (ii) made reasonable efforts to become or remain employed or otherwise lawfully to obtain the funds necessary to make payment. See Md. Rule 15-207(e)(2)(3).

The chancellor informed counsel that he was going to proceed with "whatever [petition] was first, that's what I'm going to start with ." Appellee's counsel stated that the first pleading was appellee's petition for contempt relating to appellant's refusal to execute a Qualified Domestic Relations Order (QDRO), the second petition for contempt was for non-payment of support, and "then there is Mr. Rivera's petition for a decrease of child support and alimony." Counsel's response was partially correct. The petition relating to the QDRO was filed on August 23, 1999, and was the first petition filed. Appellant's petition for modification, however, preceded appellee's non-support petition by two months. The chancellor disposed of the QDRO issue³ and then proceeded with the appellee's non-support citation. As a result, appellant's petition for modification followed the contempt proceeding.

We mention the chronology because of the questions that arose when the chancellor considered appellant's motion for modification. He said:

Now we go to his petition to reduce. Now he's not—he doesn't have clean hands. So whatever I do, I'm not going to go back into the past because, you know, because I found him in contempt, how can I give him credit. I'm not going to do that.⁴

The court then stated that the amount necessary to purge the contempt was $6,718, which was reduced to judgment.

After concluding that appellant was not entitled to modification for October, November, and December 1999, due to the finding of contempt, the court refigured the child support, prospectively imputing $29,000 income to appellant and $23,000 to appellee, which resulted in a monthly child support contribution of $333 charged to appellant. The alimony was abated for the three-month duration of the modification. The court indicated that the money attributed to appellant beginning in April 2000 would increase to $50,000.⁵

Discussion

We shall address first appellant's second issue, the finding of contempt. Initially, we recognize that a parent is obligated to support his or her children, and a parent, therefore, cannot use unemployment as an excuse to avoid a child support obligation. Goldberger v. Goldberger, 96 Md.App. 313, 326-27, 624 A.2d 1328, cert. denied, 332 Md. 453, 632 A.2d 150 (1993).

There is absolutely no evidence in this case that appellant had a present ability to pay the purge amount of $6,718. He was unemployed through no fault of his own. Appellant testified that he had $35 in cash; that his income was $840 a month unemployment insurance and $275 per month rental income. He had approximately $5,000 remaining in an equity line of credit that initially had totaled to $26,000. Appellant's monthly expenses, including alimony and child support, were $5,590; his personal expenses were $2,656, which included a mortgage, equity loan, car payment, food, medical and dental insurance coverage (including $212 per month for the child), and other incidental expenses.

The chancellor based his finding of contempt on appellant's refusal to use his equity line of credit to pay his child support and alimony obligations. Although he stated that he was more concerned with the failure to pay child support, the chancellor included $5,400 unpaid alimony in the purge amount. The court's comments relating to the finding of contempt were as follows:

I'm going to find him in contempt.... I find that the plaintiff has not paid the amount owed; and I find that the plaintiff has not proven to me by a preponderance of the evidence that he never had the ability to pay more than he actually paid and that he made reasonable efforts. Well, I don't have any problem with his effort but that otherwise he could have lawfully obtained the funds necessary to make the payments... I think he could have.

The chancellor's questioning of appellant on the equity line of credit is relevant to the question of contempt. We repeat that discussion:

THE COURT: You say you are buying a condo, or you are thinking about it?

APPELLANT: I have a condo on contract for investment purposes, yes.

THE COURT: Okay, so now you're thinking long term I gather ... I'm having trouble with this one. I mean, you owe child support and you take the money and you are going to think long term. I don't follow that one.

APPELLANT: My wife and I invested in real estate.

THE COURT: I understand that ... the point of my question has to do with timing. You ... are telling me that you are going to take five thousand dollars and rather than pay child support, you are going to buy a condominium.

APPELLANT: I think I can turn that around and make profit and have more money available for paying the child support.⁶

Clearly, the chancellor's finding of contempt was based upon appellant's refusal to borrow $5,000 from a bank to pay his support obligations. We are aware of no decision of any court in this State requiring that, under the threat of contempt, an obligor under a support order incur a debt in satisfaction of that order. Neither do we believe the Legislature intended that an obligor may be held in contempt when he has no income sufficient to pay a support obligation but, conceivably, could borrow the amount due from a relative, a friend, by the use of a credit card, or any other source that creates a debt.

When a support 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 present ability to pay the obligation. Lynch v. Lynch, 342 Md. 509, 521, 677 A.2d 584 (1996), citing Elzey v. Elzey, 291 Md. 369, 374, 435 A.2d 445 (1981). We hold that appellant herein met that burden by a preponderance of the evidence for the...