Stevens v. Tokuda

• Decision Date: 25 February 2014
• Docket Number: Sept. Term, 2011.,No. 2724,2724
• Citation: 216 Md.App. 155,85 A.3d 321
• Parties: Derek T. STEVENS v. Yoko TOKUDA.
• Court: Court of Special Appeals of Maryland

216 Md.App. 155

85 A.3d 321

Derek T. STEVENS

v.Yoko TOKUDA.

No. 2724, Sept. Term, 2011.

Court of Special Appeals of Maryland.

Feb. 25, 2014.

David P. Kennedy (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

No argument on behalf of the appellee.

Panel: DEBORAH S. EYLER, WOODWARD, and ZARNOCH, JJ.

WOODWARD, J.

The Circuit Court for Carroll County found Derek Stevens, appellant, in constructive civil contempt for failure to pay child support to Yoko Tokuda, appellee, on October 18, 2010. The circuit court did not impose a sanction, but ordered appellant, as a purge provision, to pay $300.00 per month toward his child support arrearage, as well as provide the court and appellee's attorney with his job search information on a regular basis. When appellant failed to comply with the purge provision, the court ultimately imposed 179 days of incarceration as a sanction in an order dated February 2, 2012.

During the same time period, appellant filed a motion to modify his child support obligation. A hearing was held before a master, who recommended that appellant's child support payments be reduced from $1,000.00 per month to $708.00 per month, notwithstanding a finding that appellant was currently unemployed. Appellant filed exceptions, and the court sustained those exceptions in part, but did not decide the new amount for appellant's child support payments. About six months later the court again considered appellant's motion to modify child support and decided to remand the motion to the master for the purpose of taking additional evidence. The remand order was contained in the same February 2, 2012 order that imposed the sanction of incarceration for appellant's contempt. This appeal followed.

On appeal, appellant presents five questions,¹ which we have re-phrased into three:

1. Did the circuit court err in finding appellant in constructive civil contempt and imposing a purge provision of future acts in its order of October 18, 2010?

2. Did the circuit court err by ordering appellant incarcerated for 179 days without a purge provision in its February 2, 2012 order and also err by denying appellant's petition for writ of habeas corpus seeking immediate release from incarceration?

3. Did the circuit court err by remanding appellant's motion to modify child support to a master for further evidence?

As we will explain, (1) we do not reach question 1 because of a lack of jurisdiction, (2) we vacate the balance of the period of incarceration imposed on appellant, and (3) we affirm the February 2, 2012 order of the circuit court in all other respects.²

BACKGROUND

Appellant and appellee are the parents of a child, Raiden, who was born January 14, 1999. On August 27, 2009, the circuit court entered a judgment of absolute divorce between the parties. As part of the divorce judgment, the court ordered appellant to pay $1,000.00 per month in child support to appellee.

I. Contempt

On March 8, 2010, appellee filed a Petition for Contempt, alleging in part that appellant had failed to make the required child support payments in violation of the circuit court's order. A hearing was held on appellee's petition on October 14, 2010, at the conclusion of which the court, among other things, found appellant in contempt for failure to pay the court-ordered child support payments. The court did not impose a sanction for appellant's contempt, but did include in its order dated October 18, 2010, the following purge provisions:

ORDERED, that [appellant] shall pay $300.00 per month to purge the present child support arrearage, and it is further,

ORDERED, that on the first day of each month, beginning on December 1, 2010 and extending until [appellant] is employed on a full-time basis, [appellant]shall provide this Court, and [appellee's] attorney, with a log containing the following information: the dates of any and all job interviews; a list of the names and addresses of any and all employers which [appellant] interviews with or submits resumes and/or applications to; the dates that any interviews take place or that applications and/or resumes are submitted; and any and all information regarding the status of any pending applications for employment....

In its October 18, 2010 order the circuit court also scheduled a review hearing on appellee's petition for contempt for February 2011, which was subsequently postponed to March 17, 2011. Following a hearing on March 17, 2011, the court issued an order dated March 18, 2011, in which the court found that appellant was in contempt of the purge provisions of the October 18, 2010 order. The court expressly deferred ruling on any sanction for appellant's contempt, but did modify the previous purge provisions to require appellant's job search information be submitted to the court and to appellee's counsel on a weekly, instead of monthly, basis and to advise the court and appellee's counsel of appellant's employment within forty-eight hours of obtaining the same.

On January 5, 2012, appellee filed a Motion to Show Cause and Impose Sanctions, in which appellee alleged that appellant violated the March 18, 2011 order by failing to submit any job search information after July 2011. Appellee requested that the court impose sanctions on appellant.

On February 2, 2012, the circuit court held a hearing on appellee's January 5 motion to show cause.³ At the conclusion of the hearing on February 2, 2012, the court issued an order in which it found “by clear and convincing evidence that [appellant] has failed to comply with this Court's purge provisions of March 18, 2011 having the present ability to do so.” The court then imposed on appellant the following sanction for his contempt:

ORDERED, that this Court imposes a sanction of One Hundred and Seventy–Nine (179) days to the Carroll County Detention Center; and it is further,

ORDERED, that this Court orders a furlough from the Carroll County Detention Center of five (5) days in order to give [appellant] the opportunity to find employment; and it is further,

ORDERED, that on [appellant's] five (5) furlough days, [appellant] shall be allowed to leave the Carroll County Detention Center at 9 a.m.; and it is further,

ORDERED, that on [appellant's] five (5) furlough days, [appellant] shall return to the Carroll County Detention Center by 5 p.m.; and it is further,

ORDERED, that [appellant's] employment search is confined to Carroll County, Maryland, Howard County, Maryland and Baltimore County, Maryland; and it is further,

ORDERED, that if [appellant] finds employment within the five (5) furlough days, [appellant] shall provide to the Court actual documentation that he has obtained employment.

As a result of the trial court's February 2, 2012 order, appellant was incarcerated. Appellant noted an appeal to this Court on February 29, 2012. After failing to obtain release from incarceration via either bail pending appeal or a petition for writ of habeas corpus, appellant moved this Court to stay the judgment of the circuit court and to release him from incarceration. This Court granted appellant's motion, and he was released on March 29, 2012.

2. Modification of Child Support

On December 17, 2010, while the litigation of appellee's petition for contempt was ongoing, appellant filed a motion to modify child support. In his motion appellant claimed that he was then unemployed and had been unable to maintain employment since the Fall of 2008. Appellant supported his claim by reference to his testimony at the October 14, 2010 hearing on appellee's petition for contempt.

On March 31, 2011, a hearing was held before a master on appellant's motion to modify child support. The master issued his report and recommendations on April 8, 2011, in which he found, inter alia, that appellant was currently unemployed, but had the present ability to earn $50,000.00 per year. Based on that potential income, the master recommended a modification of appellant's child support payments from $1,000.00 per month to $708.00 per month. Appellant filed exceptions to the master's report, challenging, among other things, the finding that he could presently earn $50,000.00 per year. Appellee did not oppose or otherwise respond to appellant's exceptions. On August 30, 2011, the circuit court sustained appellant's exceptions in part. In a Memorandum Opinion, the court explained its decision, in relevant part:

Master Constantinides found that [appellant] has been unemployed since 2009. The Master stated that [appellant] has tried to find work and he has been seeking positions with lower skill levels than he possesses and with lower pay. The Master did indicate that [appellant] did make $75,000.00 when he worked as a subcontractor with Lockheed Martin. However, the Master did not make a specific finding that [appellant] has voluntarily impoverished himself. [Appellant], by his employment logs and testimony, appeared to be seeking employment in the Washington D.C. area, as well in other geographic locations. Since the Master did not make a finding that [appellant] has voluntarily impoverished himself, the Master could not determine what [appellant's] potential income could be. The Master would have to determine his support obligation by using [appellant's] actual income at the time which was $0.00. However, it appears [appellant] has recently secured employment. As soon as [appellant] is able to document his income to this Court, this Court will recalculate his support obligations based on his new actual income.

Based on the Memorandum Opinion, the trial court issued an Order dated August 30, 2011 that simply “ORDERED, that [appellant's] Exceptions be, and are hereby, SUSTAINED in part.” No further action was taken by the court at that time regarding appellant's child support obligation as a result of appellant's exceptions to the master's report and recommendations.

Appellant's motion to modify child support was considered again by the circuit court at a...