Articles Posted in Divorce

This article discusses the application of constructive civil contempt in a recent child custody case. It is Part 3 of a three-part series. Part 1 provides an overview of the law of contempt in Maryland. Part 2 includes a summary and analysis of Breona C. v. Rodney D., 253 Md. App. 67 (2021), which clarified the law of civil contempt in child custody cases.

Lessons from the Breona C. Case

As discussed in Part 2, the opinion issued by the Appellate Court of Maryland in Breona C. v. Rodney D., 253 Md. App. 67 (2021) set forth important lessons regarding the application of constructive civil contempt in child custody cases:

1. An order finding a person in constructive civil contempt must include a valid sanction that is distinct from the purge provision and the requirement the Court seeks to enforce.
2. An order finding a person in constructive civil contempt must include a valid purge provision that allows the alleged contemnor to avoid the sanction by taking some defined, specific action.
3. An order finding a person in constructive civil contempt must be designed to compel present or future compliance with a court order, not to punish past noncompliance.

Constructive Civil Contempt in a Recent Child Custody Case

When parents share custody of their children, the parents must cooperate and communicate with each other to follow their custody order and co-parent effectively. Terms in a court order related to minor children (e.g., custody and child support) are modifiable by a court after applying a two-prong analysis. First, a court must find a material/substantial change in circumstance has occurred and then make a determination of the best interests of the children. When parents do not cooperate and communicate with each other to co-parent effectively, this frequently results in attempts to modify custody and petitions for contempt.

Our team was contacted by a prior client who had been served with a Petition for Contempt filed against him by his child’s mother. In our previous representation of the client, we reached a Consent Order, which established a custody schedule for each parent with their child. During the specific week at issue in the Petition for Contempt, the mother was scheduled to have the parties’ child in her care for a specific period of time pursuant to the terms of the Consent Order. During this particular week, the parties’ child had agreed upon organized extracurricular activities near our client’s home, which would also take the child out of the state for his participation.

My client and the child’s other parent agreed that my client would take their child to the activity on the first evening of the other parent’s scheduled access, then the other parent would pick their child from the activity and take the child from the remainder of their scheduled access and take the child to the activities, which would be out of state. The other parent did not pick the child up from the scheduled activity as arranged, so my client kept their child that night and asked the other parent to pick up their child to start their weekend the following morning. The other parent did not pick up their child the following day or the morning of the out-of-state travel. When faced with \the child missing the activity or taking the child himself, my client took their child to the out-of-state activity so the child would not miss it.

When my client returned home the following evening after the conclusion of the out-of-state activity, the child’s other parent picked up the child from my client. Two days later, the other parent filed a Petition for Contempt against my client, which alleged that my client violated the Consent Order by failing to make their child available to her during her scheduled parenting time.

Applying the Lessons from the Breona C. Case to Serve Our Client

Our approach to defend our client against the allegation that he violated the Consent Order was two-fold: (1) our client did not prevent the other parent from spending her scheduled weekend with their child, it was the other parent who failed to exercise parenting time; and (2) even if our client violated the Consent Order, that violation was cured when the other parent finally retrieved their child, and therefore our client could not be found in constructive civil contempt because there was no ongoing noncompliance to correct through the contempt process.

Relying on the lessons from Breona C., we argued that the purpose of constructive civil contempt is to compel present or future compliance with a court order, not to punish past noncompliance; and in this case, our client remained in compliance with the Consent Order (or at a very minimum, was in compliance with the Consent Order by Sunday evening). The judge agreed with our position and denied the parent’s Petition for Contempt.

In many ways, the facts of this case were very similar to the facts of the Breona C. case. However, there was one critical difference. In Breona C., Breona was actively violating the operative custody order when the Petition for Contempt was filed against her, but Breona began complying with the custody order before the Contempt Hearing. In our case, there was no allegation that our client was actively violating the Consent Order at the time the Petition for Contempt was filed against him. This may seem like an insignificant distinction, but this fact turned out to have a major impact for our client.

You may recall that the Breona C. case instructs that the purpose of constructive civil contempt is to coerce or compel compliance with a court order, not to punish completed noncompliance. Because the other parent filed the Petition for Contempt against our client at a time when our client was undisputably complying with the Consent Order, we argued that the other parent’s Petition for Contempt was filed without substantial justification and filed a motion requesting that the other parent be ordered to pay our client’s attorneys’ fees pursuant to Maryland Rule 1-341. In most cases, the general rule is that each party must pay their own attorneys’ fees. There are some exceptions to this general rule, including Maryland Rule 1-341, which is “an extraordinary remedy” and allows a court to order one party to pay the other party’s attorneys’ fees if an action is maintained without substantial justification. We argued that, even accepting all of the other parent’s allegations as true, our client could not possibly have been found in constructive civil contempt because our client was undisputably complying with the Consent Order when the Petition for Contempt was filed, and therefore the other parent lacked substantial justification for filing the Petition for Contempt. The judge agreed with our position and ordered other parent to pay a portion of our client’s attorneys’ fees.

This case illustrates the importance of understanding and properly applying lessons from caselaw and the Maryland Rules to the real-life situations our clients face. Obtaining an order for attorneys’ fees pursuant to Maryland Rule 1-341 is very rare. Our client would not have achieved such a favorable result without our thorough research, clear writing, and persuasive arguments.

If you believe that you may need to file a petition for contempt to enforce a court order, or if a petition for contempt has been filed against you contact Monica Scherer, Esq. at 410-625-4740 to speak with an experienced family law attorney at Silverman Thompson.

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This article includes a summary and analysis of Breona C. v. Rodney D., 253 Md. App. 67 (2021), which clarified the law of civil contempt in child custody cases. It is Part 2 of a three-part series. Part 1 provides an overview of the law of contempt in Maryland. Part 3 addresses the application of Breona C. and constructive civil contempt in a recent case.

Constructive civil contempt in child custody cases

In 2021, the Appellate Court of Maryland (formerly known as the Court of Special Appeals), issued a landmark opinion clarifying the application of constructive civil contempt in child custody and access matters. See Breona C. v. Rodney D., 253 Md. App. 67 (2021). In the wake of the Breona C. opinion, many family law attorneys remarked that the decision may result in contempt ceasing to be a useful mechanism to enforce child custody orders. Although the Breona C. opinion limits the application of constructive civil contempt, contempt remains a viable means to compel compliance with custody orders in the right circumstances.

What happened in the Breona C. v. Rodney D. case?

In Breona C., the operative custody order granted Rodney D. primary physical custody of the parties’ six-year-old child and granted Breona C. parenting time with the child every weekend. Id. at 71. At the end of one of Breona’s weekends with the child, Breona refused to return the child to Rodney as required by the custody order due to concerns about the child’s health and safety. Id. Rodney filed an emergency petition to hold Breona in contempt for violating the custody order. Id. at 72. The next day, Breona sought and was granted a Temporary Protective Order, which awarded her temporary custody of the child. Id. A few weeks later at the Final Protective Order hearing, Breona’s request for a Final Protective Order was denied. Id. Therefore, the custody order which awarded Rodney primary physical custody was restored.

However, Breona refused to return the child to Rodney as required by the operative custody order. Id. In response, Rodney filed an emergency motion for custody, and the court ordered Breona to return the child to Rodney. Id. Breona then returned the child the Rodney as ordered by the court, and Mother remained in compliance with the court order from that point forward. Id.

A few months later, the court held a hearing on Rodney’s petition for contempt. The court held Breona in contempt for violating the custody order by not returning the child to Rodney immediately after the Final Protective Order requested by Breona was denied. Id. The contempt order did not include a sanction, but stated that Breona may purge her contempt with strict compliance to the operative custody order. Id.

Breona appealed the order finding her in contempt, arguing that the contempt order was improper because it punished past conduct and included a “forever purge” provisions that did not allow Breona any opportunity to purge her contempt. Id. at 72–73.  The Appellate Court agreed with Breona and reversed the order of contempt. Id. at 73.

Why is the Breona C. case important?

The Appellate Court held that “an order holding a person in constructive civil contempt is not valid unless it: (1) imposes a sanction; (2) includes a purge provision that gives the contemnor the opportunity to avoid the sanction by taking a definite, specific action of which the contemnor is reasonably capable; and (3) is designed to coerce the contemnor’s future compliance with a valid legal requirement rather than to punish the contemnor for past, completed conduct.” Id. at 74.

The Appellate Court identified three primary reasons why the order finding Breona in constructive civil contempt was improper. First, the contempt order lacked a valid sanction. Id. at 75. Second, the contempt order lacked a valid purge provision. Id. Third, the contempt order punished “past noncompliance rather than compelling future compliance.” Id. at 76.

What is a valid sanction?

A valid sanction “must be distinct from the purge provision and the valid legal requirement the court seeks to enforce.” Id. at 74. A critical consideration is that the sanction must serve the coercive purpose of civil contempt. A valid sanction must impose a penalty such as a fine, period of incarceration, or other penalty. To be coercive, the penalty must provide for purging to allow the person in contempt to avoid the penalty by engaging in some defined, specific conduct. The Appellate Court noted that if the sanction is not distinct from the purge provision, then fulfilling the purge provision would complete, rather than avoid, the sanction. Id. In other words, it is impossible to purge a contempt if the purge provision is the sanction. The Appellate Court further noted that if the sanction is to abide by the existing court order, then “there is no coercive mechanism at all. Instead, there is just a second order directing compliance with an existing order.” Id. at 74–75.

What is a valid purge provision?

While the sanction and purge provision must be distinct from each other, the two concepts are deeply intertwined. Like a valid sanction, a valid purge provision must serve the coercive purpose of civil contempt.

A valid purge provision must allow the person in contempt to avoid the sanction by taking some defined, specific action. This is how the coercive purpose of civil contempt is served.

In the Breona C. case, the perpetual obligation to comply with the existing custody order was not a valid purge provision because it did not allow Breona to avoid a defined sanction by engaging in specific conduct.

What if a person regularly violates the operative order, but technically starts complying with the order before a Petition for Contempt is filed?

This question was not specifically at issue in the Breona C. case. Breona began complying with the custody order after Rodney filed a Petition for Contempt, but before the contempt hearing occurred. Breona’s compliance with the custody order was delayed, but she was complying with the custody order for months prior to the contempt finding. The contempt order was improper because it did not compel or coerce Breona to comply with the custody order in the present or future; instead, it punished Breona for past, completed noncompliance.

In the Breona C. opinion, the Appellate Court included a significant footnote contemplating a possible situation in which a person regularly violates a court order, and then begins complying with the operative court order by the time of the contempt hearing. “We are not confronted here with a situation in which a party is engaged in a continuing or repetitive pattern of conduct in violation of a court order that, due to its continuing or repetitive nature, could reasonably be found to be ongoing at the time of a contempt hearing even if the putative contemnor is not technically out of compliance with the order at the moment of the hearing. We do not foreclose the possibility that an order of constructive civil contempt could be issued in such a circumstance.” Id. at 76 n.6. In other words, it is possible that a party could be found in constructive civil contempt even if that party is technically complying with the operative order at the time of the contempt hearing. For this to occur, the party’s noncompliance with the court order must be so continuing or repetitive that the noncompliance can be considered ongoing despite that party’s present compliance.

If you believe that you may need to file a petition for contempt to enforce a court order, or if a petition for contempt has been filed against you contact Monica Scherer, Esq. at 410-625-4740 to speak with an experienced family law attorney at Silverman Thompson.

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