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Derrick D. Long, Sr. v. State of Maryland No. 79, September Term, 2000 HEADNOTE: JUDGMENT; ORDER; DECREE; CONSENT JUDGMENT; CONSENT ORDER; CONSENT DECREE; CHILD SUPPORT; SUPPORT ENFORCEMEN T ACTION; CIVIL CONTEMPT; PURG E PROVISIONS; INCARCERATION; SETTLEMENTS; CONTRACT; CONTRACT CONSTRUCTION; PLAIN AND UNAMBIGUOUS; FAIR, ADEQUATE AND REASONABLE; ABUSE OF DISCRETION Where the parties to a support enforcement action have agreed to settle the dispute by consent order, the appellate court lacks authority to enter a modified order that does not reflect the parties agreement without giving the parties notice and an oppor tunity to be heard.

Circuit Court for Washington County Case No. 21-P-96-003926 PA IN THE COURT OF APPEALS OF MARYLAND No. 79 September Term, 2000

DERRICK D. LONG, SR. v. STATE OF MARYLAND

Bell, C.J. Eldridge Raker Wilner Cathell Harrell Battaglia JJ.

Opinion by Bell, C.J.

Filed:

September 17, 2002

The issue this case presents for resolution is the propriety of entry, by the Court of Special Appeals, as a consent jud gment in se ttlement of a contemp t case pend ing appea l, of an order that is inconsistent with the consent order filed by th e parties . In September, 1999, the State filed in the Circuit Court for Washington County a petition for contempt alleging that Derrick D. Long, Sr., the petitioner, was in co ntempt of court for fa iling to com ply with that court's c hild sup port ord ers. Followin g a hearing in April 2000, the Circuit Court found the petitioner in constructive civil contempt and, notwithstanding its acknowledgment that he did not hav e the presen t ability to pay a purge amount, sentenced him to imprisonment for a specif ied perio d, subje ct to pur ger upo n the pa yment of $700. The petitioner noted an appeal to the Court of Special Appeals and, joined by the State, filed a joint motion to vacate the contempt order, together with a proposed consent order to facilitate the p etitioner's imm ediate release from incarceration. As jointly requested, the intermediate appellate court vacated the petitioner's sentence; however, instead of entering the order submitted by the parties, it entered a modified order. That order remanded the case to the C ircuit Court to determine conditions o f release tha t would ensure the petition er's app earanc e at furth er proc eeding s. We gr anted th e petition er's Peti tion for Certior ari, Long v . State, 360 Md. 485, 759 A.2d 230 (2000), stayed enforc ement of the C ourt of Special App eal's order, and ordered the petitioner immediately released from incarceration. We shall reverse the judgment of the Court of Special Appeals.

I. The petitioner is the father of Kianna L. Lon g, born Septem ber 3, 19 95. On March 14, 1997, the Circuit Court for Washington County ordered him to pay $25.00 per week for Kianna's support. The petitioner did not comply with this order, or subsequent sup port

orders is sued b y the cou rt. When the petitioner, still not in compliance with the support orders, failed to appear at an enforcement hearing pertaining to one of the support orders, the State filed a petition, pursuant to Md. Rule 1 5-207(e), 1 requesting that he be held in contempt. At the hearing on

Marylan d Rule 15-20 7 gove rns con structive contem pt proc eeding s in gen eral. Subsection (e), pertaining to constructive civil contempt proceedings based on nonpayme nt of child su pport, prov ides: "Constructive civil contem pt - Support enforce ment action."(1) Applicability.- This section applies to proceedings for constructive civil contem pt based o n an alleged failure to pay sp ousal or ch ild support, including a n award of emerg ency family ma intenance u nder Co de, Family Law A rticle, Title 4, Sub title 5. "(2) Petitioner's burden of proof.- Subject to subsection (3) of this section, the court may make a finding of contempt if the petitioner proves by clear and convincing evidence that the alleged contemnor has not paid the amount owed, accounting from the effective date of the support order through the date of the contempt hearing. "(3) When a finding of contempt may not be made.- The court may not mak e a fi ndin g of contemp t if th e alle ged contemn or pr oves by a preponderance of the evidence that (A) from the date of the support order through the date of the contempt hearing the alleged contemnor (i) never had the ability to pay more than the amount actually paid and (ii) made reasonab le efforts to b ecome o r remain em ployed or othe rwise law fully obtain the funds necessary to make payment, or (B) enforcement by contempt is barred by limitations as to eac h unpaid spousa l or child support payment fo r which th e alleged co ntemnor d oes not m ake the pro of set forth 2

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that petition, ev idence w as presente d that the latest su pport orde r required the petitioner to pay support and an amount toward the arrears he had amassed, but that no payments had been made. The evidence also was that, although payments had been suspended during tw o

periods when the petitioner was incarcerated,2 the current amount of arrearage was $2,975.00. Admitting that he had no physical or mental imp airment that p revented h is working, that in May, 1999, "off and on," until his incarceration in September, he worked at Labor Ready, and that if he were not incarcerated he would be able to return to that employment, the petitioner offered his intermittent incarceration and his inability to find employment following his release in November as the only explanation for failing to pay child supp ort. He testified that he had no personal assets of any kind, including a car, and that the mortga ge on h is hom e, whic h he ha d own ed with his mo ther and sister, had been

in subs ection (3 ) (A) of this sectio n. "(4) Order.- Upon a finding of constructive civil contempt for failure to pay spousal or child support, the court shall issue a written order that specifies "(A) the amount of the arrearage for which enforcement by contempt is not barred by limitations, (B) any sanction imposed for the contempt, and (C) how the contempt may be purged. If the contemnor does not have the present ability to purge the contempt, the order may include directions that the contemnor make specified payments on the arrearage at future times and perform specified acts to enable the contemnor to comply with the direction to make payments."

The petitioner was incarcerated, as he confirmed in his testimony, from September 6, 1999 through November 1, 1999. When he appeared for the hearing, he also was in carcerated, h aving bee n arrested o n January 17 , 2000 for driving w hile his license was suspen ded for nonpa yment of child support, and b eing held due to his failure to appear at the earlier scheduled contempt hearing. 3

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foreclo sed. The court found the petitioner in contempt for his failure to pay child support from May 1999 to S eptembe r 1999. D espite defe nse coun sel's argum ent that imprisonment

could not be the sa nction for co ntempt, given the petitioner's inability to pay any purge amount, and specifically find ing that the p etitioner did not h ave t he prese nt ab ility to pay, 3 the court nevertheless sentenced him to incarceration in the Division of Correction, subject to his paying $700 to purge the contempt. It ruled:

"All right, based on prior adjudications and the f act that okay, sure, he can't pay now `cause he's in jail for failure to appear, which I've dismissed since I've found him in contempt, but there was just a blatant disre gard back in M ay, June, July and Au gust. I can't hid e that. He's in contempt. ... You seem to have a lot of prob lems not on ly not paying child s upport bu t apparently operating vehicle s and ev erything e lse. If we can go out and buy a house and start paying on a h ouse, we certainly can co ntribute mo ney toward s child support which apparently you didn't think you wanted to do. [It is the s]entence of this Court [ that] you be co mmitted to DOC for a period of thirteen month s. ..." The petitioner noted an imme diate appeal to the Cou rt of Special Appeals. While that appeal was pending, the petitioner and the State filed a Joint M otion to V acate Sentence , in which they agreed, relying on Thrower v. State ex rel. Bureau of Support Enforcement, 358 Md. 146, 747 A.2d 634 (2000), that "the trial court did not find a present ability to purge, but, to the contrary, found that [the petitioner] lacked such an ability" and that "where [the

During the proce edings, the court comm ented, in response to defe nse counsel's argumen t that the court c ould not co ntinue the p etitioner's inca rceration du e to his inability to pay a purge amount, that the petitioner "can pay `cause he says he can go back to work at Labor Ready."' 4

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petitioner] has been incarcerated [over four months] and lacks the ability to pay a purge, ... it is appropria te that he sho uld be released immediately from incarceration." Attached to the motion was a pro posed ord er, which, if signed, would have vacated the petitioner's sentence and ordered his immediate release, both without remand for further proceedings.4 Rather than the proposed order submitted by the parties, however, the Court of Special Appea ls issued its own order, in which, after acknowledging the parties' agreement that the petitioner be immediately released from incarceration, the court vacated the C ircuit Court contempt judgment, remanded the case to that court "for further proceedings that conform to the requirements of Md. Rule 15-207" and "ORDERED that [the petitioner] be taken without unnecessary delay to the Circuit Court for Washington County so a judge of that court can determine what - if any- conditions of release will reasonably assure [the petitioner's] appearance at those further proceedings required by this Order." II. The petitioner, joined by the State, argues that, where the parties to civil contempt proceedin gs agree to s ettle the case w hile it is on appeal and submit their agreement to the court in the form of a proposed consent order, 5 the appellate court may not enter a modified
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Md. Rule 2-612, pertaining to consent judgments, provides that "[t]he court may enter a ju dgme nt at any tim e by cons ent of th e parties ." The overlapping terms, "judgment," "order," and "decree," though often used interchang eably, have dif ferent me anings. M aryland Rule 1-202(n) d efines a "ju dgment" as "any order of court final in its nature entered pursuant to these rules." Generally, the term "o rder" re fers to th e written directio n or com mand issued b y the cou rt, see Black's Law Dictiona ry 1123 (7 th ed. 1999), and filed with the court clerk, as required by Md. 5
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consent order that does not reflect the parties' agreement. Further, the petitioner maintains that, because the joint motion and prop osed con sent order f iled by the parties w ere legally correct under Thrower v . State, supra, there was n o basis for th e Court of Special A ppeals to reject any of its substantive provisions. Moreover, the petitioner asserts, while the court to whom a consent order is submitted, the Court of Special Appeals in this case, properly may reject the proposed order, it does not have the authority to enter its own order dispo sing of the a ppeal. The entry of a modified order that does not give effect to the parties' agreement, he concludes, deprives the parties of the benefit of their bargain and, simulta neous ly, of the alternative right to litigate the case through briefing and oral argument on the merits. The State agrees generally with the latter point, but belie ves tha t, in this ca se, where the intermed iate appellate c ourt erred w as in failing to afford the parties an opportunity to be heard on why their pro posed ord er should be altere d or to a ddress , and rem edy, any pe rceived deficie ncies. Fina lly, the petitioner argues that a court may not incarcerate a person pending a hearing pursuant to Md. Rule 15-207(e). He submits that, by ordering the case remanded for the trial court to "determine what - if any - conditions of release w[ould ] reasonab ly assure [the petitioner's] appearance at those further proceedin gs required by [its] Order," the Co urt

Rule 2-601. The term "decree," which traditionally referred to a judicial decision in a court of eq uity, as contrasted with a judg ment of a court of law , may be used to refer to any judg ment o r court o rder. See Black's Law Dictionary 419 (7 th ed. 199 7).

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of Special A ppeals auth orized the p etitioner's con tinued inca rceration fo r constructive civil contemp t, despite the u ncontrov erted evide nce that he la cked the p resent ability to purge the contempt. The petitioner further challenges the broad remand ordered by the intermed iate appellate court on the basis that it allows, contrary to Md. Rule 15-207 and this Court's cases, the trial court to order his continued incarceration upon a finding that that is the only way to ensu re his ap pearan ce at fu rther co ntemp t procee dings. III. A consent judgment or consent order is an agreement of the parties with respect to the resolution of the issues in the case or in settlement of the case, that has been embodied in a court order and entered by the court, thus eviden cing its accep tance by the co urt. 6 Jones v. Hubbard , 356 Md. 513, 529, 740 A.2d 1004, 1013 (19 99); Chernick v. Chernick, 327 Md. 470, 478, 610 A.2d 770, 774 (1992) ("Consent judgments or decrees are essentia lly agreeme nts entered into by the parties which mu st be endorsed by the court.") See Black's Law Dictionary 846 (7 th ed. 1999); Montgom ery County v. Revere Nat'l Corp., 341 Md. 366, 378, 671 A.2d 1, 7 (1996). Consen t judgmen ts are hybrids, hav ing attributes o f both While this

contracts and jud icial dec rees. Chernick, 327 Md. at 478, 610 A. 2d at 774.

"dual character ... has resulted in diffe rent trea tment f or diffe rent pu rposes ," Local Number 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 519, 106 S.Ct. 3063, 3073,

"[A] consent judgment is a judgment and an order of court. Its only distinction is that it is a judgment that a court enters at the request of the parties." Jones v. Hubb ard, 356 Md. 51 3, 528, 740 A.2d 1004, 1013 (19 99). 7

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92 L.Ed.2d 405, 42 1 (198 6), cons istent w ith other courts th at have addres sed the issue, see Jones, 356 Md. at 530-32, 740 A.2d at 1013-14, this Court has repeatedly held that "consent judgmen ts should no rmally be given the same f orce and e ffect as an y other judgment, including judgments rendered after litigation." Jones, 356 Md. at 532, 740 A. 2d at 1014. See Kirsner v. Fleischmann, 261 Md. 164, 170-71, 274 A.2d 3 39, 343 (1971 ). Thus, "[a] consent decree no doubt em bodies an agreeme nt of the pa rties and thus in some re spects is contractual in nature. But it is an agreement that the parties desire and expect will be reflected in, and be enforceable as, a ju dicial decree that is subject to the rules gen erally applicable to other judgments and decrees." Rufo v . Inmates of Suffolk County Jail, 502 U.S. 367, 37 8, 112 S .Ct. 748 , 757, 11 6 L.Ed .2d 867 , 882 (1 992). This is not to say that the contractual aspect of the consent judgment is unimpo rtant. On the contrary, the consent judgment memorializes the agreement of the parties, pursuant to which they have relinquished the right to litigate the controversy in exchange for a certain outcome and/or , perhap s, exped ience. In United States v. Armour & Co., the United States Supreme Court explained: "Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation. Natura lly, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceed ed with the litigation. Thu s the decree itself canno t be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For 8

these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it. Because the defen dant has, by the decree, w aived his righ t to litigate the issues raised, a right guaranteed to him by the Due Process Clause, the conditions upon which he has given that waiver must be respected, and the instrument must be construed as it is written, and not as it might have been written had the pla intiff established his factual cla ims and leg al theories in litigation ." 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L. Ed. 2d 256, 263 (1971) (foo tnote omitted). It is the parties' ag reement th at defines th e scope of the decree. When there is an

issue as to the scope of the judgment, therefore, it is to the parties' agreement that we look and interpret. Wh ere the agre ement is em bodied in th e judgme nt, the court having approved it, without modification, construction of the judgment is construction of the agreement of the parties. W here, ho weve r, as here , the court has modified the agreement, we look to the agreement as submitted by the parties. In either case, we determine what the parties meant by what they pla inly and unam biguously expressed, not what they intended the agreement to mean . Roged, Inc. v. Paglee, 280 M d. 248, 254 , 372 A.2d 1059, 10 62 (1977 ). This is the objective test of contract interpretation, the rule in Maryland: "[t]he written language embodying the terms of an agreement will govern the rights and liabilities of the parties, irrespective of the intent of the parties at the time they entered into the contract, unless the written language is not suscep tible of a clea r and defin ite understanding, or unless the re is fraud, duress or mutual mistake." Slice v. Carozza Properties, Inc., 215 Md. 357, 368, 137 A.2d 687, 69 3 (195 8). See Langston v. Langston, 366 Md. 490, 506-07, 784 A.2d 1086, 1095 (2001); Taylor v. NationsBank, N.A., 365 Md. 166, 178, 776 A.2d 645, 653 (2001); Wells 9

v. Chevy Chase Bank, F.S.B., 363 Md. 232 , 251, 768 A.2d 6 20, 630 (2001); Auction & Estate Reps., Inc. v. Ashton, 354 Md. 333, 340 -41, 731 A .2d 441, 44 5 (1999); Calomiris v. Woods, 353 M d. 425, 4 36, 727 A.2d 3 58, 363 (1999 ). We have stated that "[a]s lon g as the bas ic requirements to form a contract are present, there is no reason to treat such a settlement agreement differently than other contracts which are binding." Clark v. Elza, 286 Md. 208, 219, 406 A.2d 922, 928 (1979). In Chernick v.

Chernick, 327 Md. 470, 610 A.2 d 770 (19 92), we h eld that wh ere parties "stip ulate to terms embodied in a proposed consent order, the fact that a court must approve and sign the order does not affect the p arties' ability to reach a valid agreement." Id. at 479, 610 A.2d at 774. Treating settlement ag reements in civil cases co ntemplating a conse nt judgme nt, including their interpretatio n, as any other b inding con tract "is consiste nt with the p ublic policy dictating that courts should `look with favor upon the compromise or settlement of law suits in the interest of efficiency and economical administration of justice and the lessening of friction and acrimony." Elza, 286 Md. at 219, 406 A. 2d at 928 (quoting Chertkof v. Ha rry C. Weiskittel Co., 251 Md. 544, 550, 248 A .2d 373 , 377 (1 968), cert. denied, 394 U.S. 974, 89 S.Ct. 1467, 22 L.Ed.2d 75 4 (1969)); see also Porter Hayden Co. v. Bullinger, 350 Md. 452, 466-67, 713 A.2d 962, 969 (1998) ("the policy of th is State is to enc ourage p arties to negotiate compro mises or settlem ents of law suits"); General Motors v. Lahocki, 286 Md. 714, 727, 410 A.2d 1039, 1046 (1980) ("The pu blic policy is to encourage settlements."); Sisson v.Baltimore, 51 Md. 83, 95-96 (1879) ("The law always favors compromises and amicable adjustments of disputes, rather than com pel parties to re sort to litigation an d it 10

would be strange if, in the absence of clear evidence of fraud or mistake, the parties were not bound and concluded after what has taken place in respect to this award."). The public policy of encouraging settlements is so strong that settlement agreements will not be disturbed even though the parties may discover later that settlement may have been based on a mistake or if one party simply chooses to withdraw its consent to the settlement. Chernick, 327 Md. 470, 481-83, 610 A.2d 770, 775-76 (1992). In Fiege v. Boehm, 210 Md. 352, 360, 123 A.2d 316, 321 (1955), citing Hartle v. Stahl, 27 Md. 157, 172 (1867), our predecess ors noted: "(1) th at forbeara nce to asser t a claim befo re institution of suit, if not in fact a legal claim, is not of itself sufficient consideration to support a promise; but (2) that a compromise of a doubtful claim or a relinquishment of a pending suit is good consideration for a promise; and (3) that in order to support a compromise, it is sufficient that the parties enterin g into it thought at the time that there was a bona fide question between them, although it m ay eventually be found that there was in fact no such question." Kennedy, 8 Md. 230 (18 55). 7 Ord inarily, no appea l will lie from a consent jud gment. 8 Osztreicher v. Juanteguy, See also McClellan v.

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There, this Court, quoting 1 Story's, Commentaries on Equity

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