Legal Development: Clarifying Contempt With Sayed A. v. Susan A.
In Sayed a. v. Susan A., Maryland's intermediate appellate court has issued further clarification concerning the focused mechanism of civil contempt, and how courts can effectively craft coercisive, but not punitive, contempt orders to compel compliance with existing court orders. Sayed A. v. Susan A., Slip Op. No. 1365, 265 Md. App. 40, 333 A.3d 941 (March 28, 2025).
The civil mechanism of contempt is designed to encourage compliance with existing Court Orders, which command rules of the road in domestic custody cases, as well as order various remedies as a result of civil lawsuits, such as the sale of a piece of property, cease and desist some conduct, or enact the division of assets in a divorce.
Sayed a. v. Susan A. exemplies the heartbreaking difficulty that one parent faces when the other parent is savvy, has substantial income, and seeks to avoid court orders about the custody of children while covering their tracks with excuses and disputes. This unfortunate factual scenario can create an incentive for a party to seek to use the contempt mechanism for punitive purposes, when in fact, it is a civil mechanism that seeks to ensure enforcement of a court order. One takaway is to use the civil contempt process for its focused purpose and use other mechanisms for punitive and restorative purposes, as and if appropriate.
Considering Civil Contempt:
A civil contempt order consists of two fundamental mechanisms: the purge provision that commands compliance with an existing court order when someone has not complied on their own, and the sanction provision that can be imposed if that contemptuous actor fails to purge their existing contempt. Sayed A., 265 Md. App. at 77-78.
Here, the Court's sanction involved incarceration that requires higher level due process protection, and it also ranged beyond the coercive nature of enforcing a specific existing Court Order to change custody paramenters, without proper analysis. Sayed A., 265 Md. App. at 79-80.
As the Maryland Appellate Court summarized:
"Applying the foregoing principles, we hold that the circuit court erred by: (1) imposing a determinate sentence of 'thirty (30) days of incarceration' in a civil contempt order, without providing for Father's ability to end the sentence by purging; (2) improperly modifying the Custody Order's assignment of custody by prohibiting Father from having any contact with A. for 60 days; and (3) providing for Father's incarceration based only upon the filing of a line by Mother's counsel or the BIA, without affording Father a hearing or judicial determination of whether he had failed to comply with the Contempt Order."
The Court also recently clarified civil contempt in the well-known opinion of Breona C. v. Rodney D., which I covered in a prior article, linked here. For instance, in Breona C. v. Rodney D., the court clarified that a contempt provision cannot succeed if compliance has been satisfied between the filing and actual hearing date. Breona C. v. Rodney D., 253 Md. App. 67 (2021). There is a limited exception: Demonstrate a "continuous and repeated pattern" of contempt evidencing it likely will recur. 253 Md. App at 76 n. 6.
It also is worth noting that the duty imposed by the court must be shown by clear and convincing evidence to exist. Rawlings v. Rawlings, 362 Md. 535, 544 (2001).
However once the Court Order's requirements are proven, "It is well established that civil contempt 'must be proven by a preponderance of the evidence.'" Sayed A., 265 Md. App. at 69 (citation omitted); accord Rawlings, 362 Md. at 544.
It is worth noting that a contempt must be shown to be "willful." Sayed A., 265 Md. App. at 70. This issue is explored in the case of Dodson v. Dodson, and contempt does not occur where it was merely negligent, Dodson v. Dodson, 380 Md. 438 (2004). My article on Dodson is linked here.
Takeaway:
Overall and once again, the Maryland Appellate Court after Broena C. v. Rodney D. is instructing trial courts and magistrates hearing contempt peititons to limit the scope of civil contempt to its coercisive purpose, to obtain compliance.
In this regard, the instruction provided by Sayed A. v. Susan A. about crafting a purge and sanction, among other related items, is worth quoting in full. If the sanction requested is incarceration for ongoing non-compliance, that sanction will require an additional court hearing where the failure to purge must be proven. The Sayed A. decision instructs:
"1. Before finding an alleged contemnor in constructive civil contempt of a custody order, the court must determine, by a preponderance of the evidence, that the alleged contemnor willfully violated that order. While the court's use of the word ‘willful’ is not required under our precedent, the court must make clear that it recognizes that willfulness is necessary to find an individual in contempt of a custody order.
2. The court must also find that the alleged contemnor has, as of the time of the contempt finding, the present ability to comply with the custody order.
3. To impose incarceration as a sanction, the court must craft a purge provision that permits the contemnor to end the incarceration at any time by purging. Determinate sentences without a purge provision — such as the 30-day sentence imposed in the instant case — are not permissible.
4. To impose incarceration as a sanction, the court must judicially determine that the contemnor (1) is still in contempt and (2) still has the present ability to comply with the custody order or purge provision ‘at the time the sentence actually may be executed[.]’
5. The court cannot use a contempt proceeding to modify the custody determination in the custody order without undertaking the analysis required in a custody modification proceeding. If the court does not intend to modify custody, it must craft the obligations of the contempt order carefully to avoid contradicting any preexisting custody determination."
Sayed A. v. Susan A., 265 Md. App. 40, 82-83, 333 A.3d 941, 966-67 (2025) (citation omitted).
Gregg H. Mosson, Esq.
Mosson Law, LLC
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