Dishman v. Dishman

476 A.2d 213, 59 Md. App. 435, 1984 Md. App. LEXIS 375
CourtCourt of Special Appeals of Maryland
DecidedJune 11, 1984
DocketNo. 1425
StatusPublished
Cited by2 cases

This text of 476 A.2d 213 (Dishman v. Dishman) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dishman v. Dishman, 476 A.2d 213, 59 Md. App. 435, 1984 Md. App. LEXIS 375 (Md. Ct. App. 1984).

Opinion

BELL, Judge.

As an aftermath of a divorce granted in the Circuit Court for Cecil County, the alimony awarded as a part of that divorce fell into arrears. Joe Dishman appeals two decisions of that court, holding him in contempt for his failure to make the ordered payments and asks us to respond favorably to these questions:

1. Was the Appellant denied due process of law by not being apprised of his right to counsel including the availability of the public defender for the hearings seeking to hold him in contempt of Court on July 22nd, 1983, September 8th, 1983 and September 15th, 1983.

2. Were the findings that the Appellant was in contempt of Court, by the Orders of October 17th, 1983, and October 21st, 1983, clearly erroneous in view of the evidence that the Appellant did not then have the ability to pay the alleged arrearages.

[437]*4373. Was the denial of Appellant’s request to reduce the amount of alimony clearly erroneous in view of the fact that the. Appellant’s evidence, which was uncontroverted, was that his income was not sufficient to make payments at the rate of One Hundred and Fifty Dollars ($150.00) per week?

4. Was the Appellant denied due process of law by the failure of the trial court to have a record made of the proceedings on September 15th, 1983, in accordance with Rule 1224 of the Maryland Rules of Procedure?

5. Was the Appellant denied due process of law by his failure to have a record made of the proceedings of September 15th, 1983 that would have allowed an appellate court to determine whether he had made a knowing and intelligent waiver of the right of counsel, and whether or not he had in fact been advised that he had the right to appointment of a public defender if he could not afford an attorney?

The questions, while fairly presented, require some perspective before they can be addressed. We proceed first to the facts necessary before we can attempt to ascertain that perspective.-

HISTORY

Joe F. Dishman and Betty J. Dishman were divorced in December, 1982. Mrs. Dishman was awarded alimony in the amount of One Hundred Fifty Dollars ($150.00) a week starting December 24, 1982.1 A later order entered a monetary award for her in the amount of Eighteen Thousand Four Hundred Dollars ($18,400.00). During the spring of 1983 there were two or three rulings which held Mr. Dishman in contempt. He purged himself of those contempt orders, allegedly with borrowed funds. On or about April 1, 1983, payments were directed to be made through the Family Support services of the Circuit Court of Cecil County.

[438]*438 The Hearing of July 22 and September 8, .1988

Mrs. Dishman filed a petition to have Mr. Dishman held in contempt for arrearages accruing from January 28 through March 26th, 1983, plus attorneys fees. Mr. Dishman countered with a request for a modification of the amount of support.

Both petitions came on for hearing on July 22, 1983. The court heard testimony on that day and continued the case to September 8 to allow Mr. Dishman to call a C.P.A. to further explain his financial situation.

There is no record in the docket entry of July 22, or the continued date of September 8, of any advice to Mr. Dish-man on his right to counsel or his right to have counsel appointed if he was indigent. There is no indication that there was a waiver of counsel. The transcript is totally devoid of any reference to advice of the right to counsel. Mr. Dishman was not represented by counsel on either date, although he did have a friend with him who testified on his behalf.

The court found Mr. Dishman in contempt, entered a judgment in favor of Mrs. Dishman for $800.00 and denied the motion to reduce.2

Interestingly enough while the court held Mr. Dishman in contempt it did not order incarceration on that petition.

The Hearing of September 15, 1988

Meanwhile another petition for contempt from the Family Support Division, which would have different consequences, was working its way toward a hearing to be held just one week later. There is a docket entry on that date which reads as follows:

September 15, 1983 — Hearing held____ Resp. advised of his right to an attorney — waived attorney. Finding: In [439]*439Contempt. Committed to the Cecil Co. Jail for 179 days or make arrangements. Live in work out granted.

We have no transcript of that hearing. We learn from a later “order” 3 in the record that the arrearage was found to be $1,530 as of August 26, 1983. Mr. Dishman was given “the opportunity to purge himself and [sic] which he did by paying $735.00 on September 21, 1983 and was released from jail on the condition he would pay the balance due within ninety (90) days.”

Mr. Dishman secured a lawyer. An order was signed on October 17 delineating the results of the September 8 decision. The court entered an “order” on October 21, in response to the request of Mr. Dishman’s attorney, setting forth the background of the case and spelling out the holding and decision made on September 15. Timely appeals were noted to the October 17 and October 21 orders.

An orderly response would be to proceed with each of Mr. Dishman’s questions seriatim; however, there is a threshold issue which must be addressed. Mr. Dishman went to jail as a consequence of the September 15 hearing at which he was not represented by counsel.

LAW

The Court of Appeals of Maryland through Judge Eldridge in Rutherford v. Rutherford, 296 Md. 347, 363, 464 A.2d 228 (1983) stated:

[U]nder the Due Process Clause of the Fourteenth Amendment and Article 24 of the Maryland Declaration of Rights, an indigent defendant in a civil contempt proceeding cannot be sentenced to incarceration unless he has been afforded the right to appointed counsel.

In Lee v. State, 56 Md.App. 613, 623, 468 A.2d 656 (1983), Judge Alpert quoted this holding and added:

[440]*440Thus, it is firmly established that a defendant is entitled to representation by counsel in a civil contempt proceeding if he is to be sentenced to a period of incarceration.

Judge Eldridge earlier in Rutherford, supra at 360-361, 464 A.2d 228 opined: “A defendant’s actual incarceration in a jail, as a result of a proceeding at which he was unrepresented by counsel and did not knowingly and intelligently waive the right to counsel is fundamentally unfair.”

Our analyses and responses to Mr. Dishman’s questions must be based on an independent review of the record, Rule 1086, but we have no transcript of the September 15th hearing.

It was the responsibility of Mr. Dishman to include in the record a “transcript of all the testimony,” Md.Rule 1026 a 2, as well as all other matters and issues which he desires this Court to review on appeal to support his contention that any attorney waiver was not knowingly or intelligently made. See White v. State, 8 Md.App.

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Related

Aron v. Brock
703 A.2d 208 (Court of Special Appeals of Maryland, 1997)
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536 A.2d 116 (Court of Special Appeals of Maryland, 1988)

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Bluebook (online)
476 A.2d 213, 59 Md. App. 435, 1984 Md. App. LEXIS 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dishman-v-dishman-mdctspecapp-1984.