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ROBERT D. LYNCH v. SUSAN M. LYNCH NO. 55, SEPTEMBER TERM, 1995 HEADNOTE: CIVIL CONTEMPT -- CHILD SUPPORT -- ALTHOUGH SUBJECT TO BEING HELD IN CRIMINAL CONTEMPT, A DEFENDANT WHO LACKS THE PRESENT FINANCIAL ABILITY TO COMPLY WITH A CHILD SUPPORT ORDER, WHETHER OR NOT THAT INABILITY IS PURPOSEFUL, MAY NEITHER BE HELD IN CIVIL CONTEMPT NOR IMPRISONED.

IN THE COURT OF APPEALS OF MARYLAND NO. 55 SEPTEMBER TERM, 1995

___________________________________

ROBERT D. LYNCH

V.

SUSAN M. LYNCH

___________________________________ Murphy, C. J. Eldridge Rodowsky Chasanow Karwacki Bell Raker

JJ. ___________________________________

OPINION BY BELL, J. ___________________________________ FILED: June 10, 1996

This

case

presents

for

our

resolution

the

issue

of

the

sufficiency of the evidence that Susan M. Lynch, the respondent, was unable to pay the court-ordered child support to comply with

the purge provision set by the Circuit Court for Montgomery County1 The petitioner's certiorari petition asked the court to decide "whether an alleged contemnor has the burden of proving his or her inability to comply with the purge provision in order to avoid imprisonment." That issue no longer needs to be decided since, at oral argument, the respondent wisely conceded that the burden is on the contemnor. That fact is well established by Maryland law, see, e.g., Soldano v. Soldano, 258 Md. 145, 146, 265 A.2d 263, 264 (1970) ("imprisonment may be voided by showing that one has neither the money nor the ability to pay"); McDaniel v. McDaniel, 256 Md. 684, 692-93, 262 A.2d 52, 57 (1970) ("the alleged contemnor '...has the burden of showing his inability to comply and that his situation is in good faith and not due to calculated and deliberate choice.'") (quoting 2 W. Nelson, Divorce and Annulment

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