2007 - Arrington vs. DHR - No Civil Contempt (Child Support) Without Present Ability to Purge

Arrington v. Department of Human Resources, 402 Md. 79, 935 A.2d 432 (2007)

Arrington v. Dept. of Human Res., et al., No. 10, September Term, 2007.

McLong v. Oliver, No. 26 , September Term, 2007.

(Cases were not consolidated but were argued on the same date.)

CONSTRUCTIVE CIVIL CONTEMPT FOR VIOLATION OF CHILD SUPPORT ORDER; COURT MAY NOT INCARCERATE DEFENDANT FOR FAILURE TO MEET A PURGE THAT DEFENDANT IS NOT ABLE TO MEET IN TIME TO AVOID THE INCARCERATION.

Arrington Case: The disposition in Arrington’s case was patently unlawful. He was given a determinate sentence of eighteen months to the Division of Correction, which is a criminal sentence not permitted in a civil contempt case. That kind of disposition cannot be saved by adding a purge, especially when the purge is one that the court must have known Arrington could not immediately meet. The purge was that he enter Dismas House—a correctional facility—“and secure full-time employment with earnings withholdings ...” As we indicated, not only was there no indication at the time that Arrington had been or would be accepted into Dismas House—the evidence showed only that he had been found an acceptable candidate for work release—but, even if he would be accepted into the Dismas House program, there was no indication that he could secure full-time employment in time to avoid the incarceration, which is what is required in a civil contempt case. The finding of contempt can stand, but the sanction imposed, even though no longer in effect, must be vacated.

McLong Case: The sanction in McLong’s case is equally unlawful. He too was given a determinate sentence, of two years, which is itself unauthorized, with or without a purge. The initial purge of $2,000 was obviously one that McLong could not meet; nor was the amended purge of $200 and presentation of a GED certificate one that the court had any reason to believe could be instantly met. It appears that the amended order was entered without a hearing, and therefore without any evidence bearing on McLong’s ability to meet that purge, and, indeed, without even giving McLong an opportunity to show that he could not meet the purge. As we indicated, one may not obtain a GED certificate unless and until the person passes a battery of tests, and there is nothing in the record to show that McLong, still incarcerated, had any ability even to take the tests. As with Arrington, the finding of contempt may stand, but the sanction must be vacated.