Rutherford v. Rutherford, 104

CourtCourt of Appeals of Maryland
Writing for the CourtArgued before MURPHY; ELDRIDGE; MURPHY
Citation296 Md. 347,464 A.2d 228
Docket NumberNo. 104,104
Decision Date05 August 1983

Page 347

296 Md. 347
464 A.2d 228
No. 104.
Court of Appeals of Maryland.
Aug. 5, 1983.

[464 A.2d 229]

Page 348

Gary S. Offutt, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on briefs), for appellants.

No briefs filed by appellees.



We granted the petition for a writ of certiorari in these cases to decide whether, as a matter of due process, a defendant in a civil contempt proceeding, in which the court orders actual incarceration, has the right to counsel including government furnished counsel if the defendant is indigent. We hold that this right is guaranteed by the Due Process Clause of the Fourteenth Amendment and by Art. 24 of the Maryland Declaration of Rights.

Page 349


The relevant facts in each of the two cases before us are as follows.

A. Katzenberger v. Katzenberger

On February 2, 1978, the Circuit Court for Anne Arundel County ordered that the defendant Bruce O. Katzenberger make weekly child support payments of $10.00 per child for each of his two children, or a total of $20.00 weekly, through the Domestic Relations Division of the court. The two children were in the custody of the defendant's former wife, the plaintiff Teresa Katzenberger. After an arrearage had accumulated because of the defendant's failure to make regular payments, the court on April 10, 1979, ordered that the defendant pay an additional $5.00 per week towards the arrearage.

Subsequently, on seven different occasions, the Domestic Relations Division of the Circuit Court for Anne Arundel County filed petitions to cite the defendant for contempt for failure to comply with the 1978 and 1979 support orders, and each time the circuit court issued an order to show cause. Nevertheless the sheriff was unable to locate the defendant, and the petitions and orders were never served. Finally the plaintiff retained private counsel who, by using a private process server, was able to serve the defendant with a petition for contempt and an order to show cause.

A hearing on the contempt petition was held on July 21, 1982, at which the plaintiff was represented by counsel. The defendant was not represented by counsel; he was not advised by anyone concerning a right to counsel, and nothing was said by the court or by the plaintiff's attorney concerning his lack of representation. 1 A support officer [464 A.2d 230] of

Page 350

the circuit court's Domestic Relations Division testified that the arrearage then due was $3,714.74, of which $2,219.44 was owed to the State of Maryland for "social service payments" made to the plaintiff and $1,495.30 was owed to the plaintiff. After the plaintiff herself testified, her counsel concluded the plaintiff's case by asking that the defendant be held in contempt and that attorney fees be awarded.

The defendant was then given an opportunity to testify, and he began by referring to the plaintiff's request for attorney fees:

"Your honor, as far as paying legal fees for [the plaintiff], I feel that if I could pay a lawyer it would be for myself, rather than [the plaintiff]. I am currently unemployed, which Mr. Bustard [the Domestic Relations Division support officer] is aware of."

Mr. Katzenberger went on to testify that he had been discharged from his last place of employment, that the pay due him from that employer had been attached, that he was "receiving unemployment benefits which don't amount to much," and that his current wife "works to support myself and our four year old child. And we are just barely making it." He further testified that he had been seeking employment by looking in newspapers, going to the "unemployment office," and "walk[ing] into a lot of places," but that he had no employment prospects at the time.

On cross-examination, Mr. Katzenberger acknowledged that, when he had been employed, he had not made some

Page 351

support payments because he was saving his money to retain a lawyer in connection with "my visitation rights which were denied for six years." After cross-examination, Mr. Katzenberger stated to the court that some payments were taken out of his salary when he was employed, that "the majority of the payments made this year were voluntarily made from out of my unemployment benefits or money that I had borrowed from my wife or mother," that he was not "evading or trying to avoid making these payments," and that the payments would be made "if I had it in my means."

At the conclusion of the hearing, the trial judge stated:

"Well, I think certainly I will find you in contempt. You didn't pay when you could have paid, recognizing the fact that you are now unemployed the situation is somewhat different. But I think you have to make every effort to get yourself employed so you are back in the position not only to make the current payments but to start paying on the arrearage."

On July 30, 1982, the court signed an order sentencing Katzenberger to serve six months in the Anne Arundel County Detention Center, with the sentence to begin on September 1, 1982. Under the court's order, the defendant could purge himself of the contempt by paying "$300.00 toward his arrearage," plus $10.00 per week per child toward the arrearage, plus $10.00 per week per child for current child support.

Thereafter, an attorney in the public Defender's Office entered his appearance as Mr. Katzenberger's attorney, and, on August 30, 1982, an appeal was taken to the Court of Special Appeals. Prior to a hearing in the Court of Special Appeals, this [464 A.2d 231] Court granted Katzenberger's petition for a writ of certiorari. 2

Page 352

B. Rutherford v. Rutherford

Theodore E. Rutherford and Willa Dean Rutherford, then husband and wife, entered into a separation and property settlement agreement in January 1982, under which, among other things, Theodore Rutherford agreed to pay Willa Dean Rutherford $400.00 per week for the support and education of their two minor children. In the Circuit Court for Anne Arundel County, on March 23, 1982, Willa Dean Rutherford was granted a divorce a vinculo matrimonii, with the decree embodying the requirement that Theodore Rutherford make weekly child support payments of $400.00.

In April 1982, Mrs. Rutherford filed a petition to hold her former husband in contempt for failing to make child support payments under the decree, and an order to show cause was entered. The matter was heard by the Circuit Court for Anne Arundel County on May 11, 1982. At the beginning of

Page 353

the hearing, after the plaintiff's attorney identified himself, the following colloquy occurred:

"COURT: And your name, sir?

DEFENDANT: Theodore Rutherford.

COURT: Mr. Rutherford, are you representing yourself?

DEFENDANT: I can't afford an attorney.

COURT: All right. Then I assume you're representing yourself. Do you understand why you're here?

DEFENDANT: Yes, sir.

COURT: Why are you here?

DEFENDANT: I'm here because I can't pay her the $400 a week child support.

COURT: Well, you're here because they're asking that you be held in contempt.

DEFENDANT: The Court ordered me to pay it ....

COURT: I understand that.

DEFENDANT: ... and I can't."

As in the Katzenberger case, nothing was said to Mr. Rutherford during the hearing suggesting that he had a right to counsel.

[464 A.2d 232] The plaintiff testified at the May 11th hearing that the defendant made weekly payments in January 1982, that since February 1, 1982, he has paid her only $300.00, and that the arrearage amounted to $5,300.00. She further testified that the reason given to her by the defendant for not making the payments was that the defendant did not have the money and that he had lost his business.

The defendant, under questioning from the court, then testified that he had lost his business in early March 1982, that he had been unemployed since that time, that he had been seeking employment without success, and that he had been evicted from where he had lived "because the $300--

Page 354

the last $300 i Gave her was my rent money." Mr. Rutherford further stated that he was presently living rent-free with a friend, that he had "sold just about everything I owned to just survive to now," and that "I lost my attorney 'cause I couldn't pay him for the work he had already done." On cross-examination, the plaintiff's attorney asked Mr. Rutherford whether he sold drugs, and the defendant replied that he did not.

At the conclusion of the testimony, the court asked the plaintiff's attorney "now how can I hold him in contempt?" The attorney responded by suggesting that Mr. Rutherford was in contempt for failing to make all of the payments for the period prior to early March when he became unemployed. In addition the plaintiff's attorney, while stating that he was in no position "at this time to introduce any evidence," stated his belief that Mr. Rutherford "has income from less conventional sources. And I believe if the Court would impose him in contempt that we would find that money would begin flowing." With regard to the suggestions that he had any income and that he had been dealing in drugs, the defendant in rebuttal stated that the allegations were "totally untrue."

The hearing ended with the court stating that it "accept[ed]" Mr. Rutherford's testimony concerning his "present situation," but that the defendant was in contempt because of his failure to make payments prior to the time in early March when he became unemployed. On May 12, 1982, an order was entered sentencing the defendant to the Anne Arundel County detention center for a period of ninety days, commencing May 26, 1982, with the defendant being able to purge himself by paying the arrearage.

Sometime after the May 12th order, an attorney in the Public Defender's Office began to represent the defendant, and,...

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