Contempt and Enforcement

Can one parent sue the other parent – or the other parent’s relatives – for intentionally alienating or estranging a child?

What can one parent do when the other parent – or the other parent’s relatives – interfere with custody or visitation? One option is a contempt proceeding, in which a judge determines whether a court order has been violated, and if so, prescribes a purge provision to rectify the offense. Another option is a modification proceeding, in which a judge determines if there has been a material change in circumstances and, if so, what if any changes are needed to custody or visitation in the child’s best interests.

Many parents ask, however, whether they can sue the other parent – or the parent’s relatives – for intentionally alienating or estranging a child.

Recently, in Haines v. Vogel (September Term 2019, No. 1789, opinion filed April 7, 2021), Maryland’s intermediate appellate court, the Court of Special Appeals, did not absolutely prohibit such a claim, but the Court made crystal clear how rotten the offending parent’s conduct must be.

In this case, Father claimed that Mother deliberately and maliciously deprived him of custodial and/or visitation rights, and alienated the children from him so much that the children grew reluctant or outright refused to visit with him, and any relationship with them was now impossible.

Father claimed that Mother made inappropriate comments about him in front of the children; that Mother gave each child a cell phone so she could interfere with his visits; that Mother left Father and the parties’ 9-year old at a State Police Barracks when Father and child took too long to say goodbye; that Mother did not get the children to return Father’s calls; and that Mother engaged in other conduct which alienated the children from Father. Father blamed Mother for the children’s “warped view of him.” The trial court granted Mother’s motion to dismiss Father’s claim, and Father appealed.

The Court of Special Appeals looked back at Maryland law as it developed in three earlier cases from 1986, 2000, and 2008. In 1986, a father sued the live-in boyfriend and later husband of his child’s mother for belligerent and hostile conduct. In 2000, a father sued the domestic partner of his teenage daughter’s mother, who denied the father phone contact, made plans to interrupt the father’s visits, and directed the teenager to disregard the father’s authority. In both of these cases, the trial courts dismissed the complaints and the appeals courts affirmed because the conduct complained of was insufficiently egregious.

However, in 2008, an ex-husband sued his ex-wife and her mother for intentional interference with custody and visitation. The mother and grandmother deceived the father into thinking they were taking the couple’s two children on a trip to New York to visit relatives, but instead abducted the children to Egypt to live. The trial court refused to dismiss the father’s claim, and a jury awarded the father over $3 million in compensatory and punitive damages. On appeal, the Court of Appeals affirmed the decision based on the presence of two elements: abduction and harboring.

After reviewing these cases, in Haines v. Vogel, the Court of Special Appeals reiterated that, in Maryland, “the basis of a tort claim for interference with custody and visitation, is that the conduct must be: (1) intentional, (2) outrageous, and (3) involve the physical removal and harboring of the child from the parent.” The Court explained that “the requisite outrageous conduct cannot be merely words or acts that cause estrangement but conduct that results in the physical removal of the child from a parent.” Father’s claims that, by badmouthing him and doing other things, Mother distanced the children from Father emotionally, were insufficient; physical removal is what is required to show intentional interference with custody or visitation.

A civil contempt petition or a motion to modify custody or visitation, the Court concluded, “would allow the court, rather than a jury, to resolve what will undoubtedly be conflicting and emotion-laden testimony. … The court [rather than a jury] would be best positioned to resolve the central issue at the heart of this controversy: whether the court should use its equitable powers to address Mother’s alleged behaviors. Either petition would be a more prudent course than allowing one parent to sue the other for money damages to resolve these important issues.”

The Court of Special Appeals also affirmed the trial court’s dismissal of Father’s claim of intentional infliction of emotional distress, which requires “intolerable” and “outrageous” conduct. “Mother’s alleged conduct, while perhaps vexing and inappropriate, cannot be said to be extreme or outrageous, as has been defined [by other case law].”

A court’s contempt order must have teeth to be enforceable.

By Vincent M. Wills

Contempt orders – orders issued by a court to force a person to comply with a prior court order – must contain a sanction and a purge provision to be enforceable. Dolet v. Martin, a recent unreported* decision of Maryland’s intermediate appellate court, holds that to be valid a court’s contempt order must contain a sanction and a provision that allows the person in contempt to purge the contempt.

Mr. Dolet (“Husband”) and Ms. Martin (“Wife”) entered into a separation agreement that was incorporated into their judgment of absolute divorce. By incorporating the agreement into the Judgment of Absolute Divorce, the court obtained the ability to enforce the agreement with its contempt powers. The parties agreed that the Husband would be the owner of property located in Bowie, Maryland. However, the parties also agreed that if the Husband vacated the property he would transfer the property to the Wife. When the Husband vacated the property, he refused to transfer the property to the Wife. In response, the Wife filed a motion for contempt, asking the court to order the Husband to deed the property to her. During the hearing on her motion for contempt, the Wife argued that the Husband was in contempt of court for failing to deed the property to her as required by the divorce decree.

Contempt is an inherent power of a court to enforce compliance with its orders. There are two classifications of contempt – civil and criminal. The purpose of civil contempt is to coerce present or future compliance with a court order. A civil contempt proceeding is used to enforce the rights of a private party to a case and to compel obedience to orders made to benefit such party. In contrast, criminal contempt is used to punish someone for past misconduct or disobedience to a court order.

Contempt may be direct or constructive. A direct contempt is something that occurs in the presence of the court and affects the proper functioning of the court. For example, saying something derogatory to a judge or flipping an inappropriate hand gesture to the judge are examples of direct contempt. In contrast, a constructive contempt occurs outside the presence of the court. For example, failing to pay court-ordered child support is an example of constructive contempt.

Because civil contempt is used to force a party to obey a court order and not for punishment, it is remedial in nature. As a result, the sanction or penalty in a civil contempt must provide for purging. A purge provision is some action or monetary payment that a party is required to take or make in order to undo the finding of contempt. A purge provision has been described as having “the keys to the prison in his or her pocket.” Except for child support cases, before a court can make a finding of contempt, the person subject to contempt must have the present ability to comply with the purge provision.

Since the penalty imposed in a criminal contempt is intended as punishment, it does not have to provide for purging. If there is no purge provision to enforce compliance, the court is limited to using criminal contempt.

In Dolet v. Martin, the trial judge found the Husband to be in civil contempt. The judge stated that the Wife was entitled to any relief awarded by the court in a separate breach of contract suit that she also filed against the Husband. The Order did not contain a sanction, nor did it contain any provision that would allow the Husband to purge himself of the contempt.

On appeal, the Maryland Court of Special Appeals decided that the trial court’s civil contempt order was invalid, because it did not contain a sanction, nor did it contain a purge provision.

* An “unreported” opinion by Maryland’s intermediate appellate court is published on the Court’s website, but may not be cited in any paper, brief, motion, or other document filed in any Maryland court, as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104. However, unreported opinions do offer insight into issues addressed by that court.