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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