Brandon Parks v. State of Maryland, Nos. 26 & 27, Sept. Term 2023. Opinion by Tang, J.
CHILD SUPPORT – ENFORCEMENT – EVIDENCE – WEIGHT AND SUFFICIENCY
Section 10-203(a) of the Family Law Article (“FL”), Maryland Code (1984, 2019 Repl. Vol.) provides that “[a] parent may not willfully fail to provide for the support of his or her minor child.” “Willful” is not defined in the statute. Considering the legislative history and decisional law, we interpret “willful” under FL § 10-203(a) as an act done with deliberate intention for which there is no reasonable excuse.
To support a conviction for willful failure to pay child support under FL § 10-203(a), there must be evidence from which the trier of the facts can determine that the obligor parent intentionally refused to support their child despite having the capacity to do so. Willful failure to support presupposes the existence of, or the ability to obtain, the means of support by the parent. In other words, the obligor parent must have the means of paying support or the capacity to obtain the means of paying support. Willfulness may be proven by circumstantial evidence and by inferences drawn therefrom.
The evidence was sufficient to establish that the appellant willfully failed to pay child support under FL § 10-203(a) in two cases. In the first case, the evidence demonstrated that the appellant worked about 10 to 15 monthly jobs, paid rent, and did not use any funds to pay child support during the relevant period. The evidence also showed that the mother prevented the appellant from contacting her and from visiting the child, from which the jury could have inferred that the appellant chose not to pay support.
In the second case, the evidence established that the appellant worked for one employer, earning about $500 a month during the relevant period, and he also worked for others. Despite his income and ability to work, he made no child support payments during the relevant period. Circuit Court for Kent County Case Nos.: C-14-CR-22-000092 & C-14-CR-22-000093
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
Nos. 26 & 27
September Term, 2023
______________________________________
BRANDON PARKS
v.
STATE OF MARYLAND ______________________________________
Reed, Tang, Eyler, James R. (Senior Judge, Specially Assigned),
JJ. ______________________________________
Opinion by Tang, J. ______________________________________
Filed: August 28, 2024
* Kehoe, S., J., did not participate in the Court’s Pursuant to the Maryland Uniform Electronic Legal decision to designate this opinion for Materials Act (§§ 10-1601 et seq. of the State publication pursuant to Md. Rule 8-605.1. Government Article) this document is authentic.
2024.08.28 15:41:03 -04'00'
Gregory Hilton, Clerk This consolidated appeal involves two cases in which the appellant, Brandon Parks,
was convicted in the Circuit Court for Kent County of willfully failing to provide child
support for two of his minor children in violation of § 10-203(a) of the Family Law Article
(“FL”), Maryland Code (1984, 2019 Repl. Vol.). The sole issue in each case is whether
there was sufficient evidence of willfulness. 1 We hold that there was and affirm the
convictions in both cases.
BACKGROUND
The appellant has two minor children with different mothers. He was court-ordered
to pay monthly child support for each child. The Kent County Office of Child Support
Enforcement (“OCSE”) tracked the child support payments made by the appellant. There
is no dispute that, in both cases, the appellant made no child support payments during the
relevant periods.
In June 2022, the State charged the appellant with willfully failing to pay child
support in each case. The trials were scheduled in December 2022 to be tried one after
another. The first case, C-14-CR-22-000092, was a jury trial, while the second case, C-14-
CR-22-000093, was a bench trial. The cases were tried similarly: the State presented
testimony of the children’s mothers (“Mother 1” and “Mother 2”), Lindsay Blume (the
“OCSE representative”), and Philip Boudart, the appellant’s employer (the “employer”).
The appellant testified in the first case but not in the second case. Copies of the pertinent
1 As drafted, the appellant’s question presented is: “In C-14-CR-22-000092 and C- 14-CR-22-000093, was the evidence legally insufficient to establish that [the appellant] willfully failed to provide for the support of his minor children?” child support orders and OCSE payment records were admitted in each case. A summary
of the relevant evidence presented in each case is as follows:
First Case: C-14-CR-22-000092
The appellant is the father of a six-year-old child who lived with Mother 1 under
her sole custody. Mother 1 and the appellant had a brief relationship but have had little
contact since the child’s birth. When the child was one month old, the appellant bought
diapers. When the child was three months old, Mother 1 attempted to allow the appellant
visitation, but he knocked the child’s stroller over. Since then, Mother 1 has not permitted
the appellant to see the child. She testified that she did not want the child to “be around
[the appellant] because he was threatening [Mother 1] at the current time when [she] had a
protective order against him.” Mother 1 prevented the appellant from contacting her by
blocking him on social media.
A court order issued in April 2021 required the appellant to pay Mother 1 $780 in
monthly child support beginning in May 2021. The OCSE representative testified that the
appellant had been referred to a program aimed at helping him secure employment.
However, he failed to comply with the program requirements and became ineligible for its
services.
The appellant made no payments through the OCSE from May 2021 to May 2022
(“the nonpayment period”). During this period, no wages were garnished, and no cash was
collected directly from the appellant. The appellant also did not directly pay child support
to Mother 1 during that time.
2 During the nonpayment period, the appellant worked part-time for the employer
who owned properties in Kent County. The appellant performed various home
improvement projects on those properties, including landscaping, general labor, carpentry,
and construction. The appellant worked about 10 to 15 monthly jobs, which amounted to
one to four workdays per week. The employer paid the appellant through an electronic
payment application and testified that the appellant never indicated that he had not received
a payment.
The employer allowed the appellant to rent one of his homes beginning “in January
of last year.” 2 The appellant paid the employer $800 per month in rent, a reduced rate from
the property’s market value rent of around $1,700 a month due to undergoing renovations.
During the nonpayment period, the appellant did not have a valid driver’s license. The
employer testified that this limited the appellant’s ability to work for him, so he wrote a
letter supporting the appellant’s efforts to renew his license to increase his productivity.
When asked how the appellant would get to the job sites, the employer explained that the
appellant “owns a car now. Previously he would get rides from other workers or myself or
be working at my property that he is staying at.”
At the close of the State’s case, defense counsel made a motion for judgment of
acquittal, asserting that the State had failed to demonstrate the appellant’s ability to pay the
ordered child support. The defense argued that there was no evidence that the appellant
2 It seems that the employer meant January 2021 when he stated January “of last year” at the trial in December 2022. In the second trial, infra, the employer testified that the appellant started renting in January 2022. 3 made any money, no evidence of his finances, and thus no evidence that he was willful in
not paying child support during the nonpayment period.
The court denied the motion, explaining that although there was no testimony about
how much or when the appellant was paid, the evidence showed that he was employed
during the nonpayment period and that none of his payments went toward his child support
obligation.
The appellant proceeded to testify in his defense. He explained that during the
nonpayment period, he tried to exercise “visitation rights” with the child and “see if she
needed anything” multiple times, but Mother 1 did not allow him to see the child and
“blocked” his attempts to contact her. The appellant confirmed he was not disabled or
homeless during the nonpayment period. He also testified that he made a $1,150 payment
to OCSE with funds lent by the employer, but the payment was made after the nonpayment
period, likely in June 2022.
During closing arguments, the State argued that the appellant willfully failed to pay
child support despite being capable of making some payment during the nonpayment
period. Even though the appellant’s financial ability to pay child support is not an element
of the offense, the State emphasized that the appellant could work. He was not disabled or
homeless. He was employed and earning income from various jobs each month.
The defense argued that the appellant did not have the funds to pay child support.
There was no evidence of how much money he had made or that he could have made any
payments toward his child support obligation. The defense explained that the appellant
“can’t willfully not want to give her something he doesn’t have.” The appellant tried to
4 contact Mother 1 to see the child and check if she needed anything, but she did not allow
it. The defense explained that this “makes it hard for [the appellant] to try to support her.”
The jury convicted the appellant of willful failure to pay child support. The court
sentenced him to one year of incarceration and suspended all but 90 days, to be served on
weekends, followed by five years of probation.
Second Case: C-14-CR-22-000093
The appellant is the father of a second child, who was thirteen years old at the time
of trial. The child lived with Mother 2, who had sole custody of the child. Mother 2 and
the appellant were married for seven years. They divorced but maintained a “friendly”
relationship. The appellant was allowed visitation with the child, which amounted to one
or two weekends per month, some holidays, and some days over summer break.
By court order, entered June 2010, the appellant was required to pay $282 per month
in child support. According to OCSE’s records, the appellant made payments in 2019; the
last payment was in September 2021. No payments were made through OCSE from
October 2021 through May 2022 (“the nonpayment period”). Additionally, the appellant
had no wages garnished during this time and did not directly pay Mother 2 any child
support. The appellant often offered to help Mother 2 with the child’s clothing and school
supplies and would say to Mother 2, “[I]f you need anything, let me know. If I have it, I’ll
help you. If I don’t, then we’ll make arrangements.” Mother 2 did not accept his offers.
During the nonpayment period, the appellant worked part-time for the employer. At
this trial, the employer testified that he paid the appellant an average of $500 monthly. The
appellant worked for the employer consistently for about seven hours a week, with some
5 weeks requiring more hours for larger jobs. The employer paid the appellant using an
electronic payment application, and the appellant never indicated that he had not received
a payment. The employer also testified that the appellant “has worked for other people”
and may have been working for someone else about one day a week.
During this trial, the employer testified that the appellant started renting one of the
employer’s properties in January 2022. The employer stated that it was beneficial to have
a “skilled construction worker” live at the vacant property that needed repairs. As in the
first trial, the employer testified that he charged the appellant $800 in monthly rent, a
reduced rate from the property’s market value rent of about $1,700 monthly due to ongoing
renovations. At this trial, he added that between January and September 2022, the appellant
received assistance from social services to pay “some rent” for five months. Since the
appellant did not possess a valid driver’s license, the employer would pick him up on
workdays, or the appellant would arrange rides to the job sites from other workers.
At the close of the State’s case, defense counsel moved for a judgment of acquittal.
This time, defense counsel cited Ashford v. State, 358 Md. 552 (2000), asserting that, while
the case was “not directly on point,” “it is a criminal contempt case involving child support
in which case the [Supreme Court of Maryland] found in that case that the State had lacked
evidence that showed neither the individual had sufficient money to pay child support nor
that he had the ability to earn sufficient money and willfully failed to work and pay.”
Defense counsel asserted that, under Ashford, the motion should be granted because
“[t]here isn’t any evidence shown that [the appellant] had any money additional to pay any
child support in this matter.”
6 The court denied the motion, explaining that the facts in Ashford were
distinguishable. The court noted that, in Ashford, the State’s sole witness was unaware of
the defendant’s financial or personal situation during the period of nonpayment. In contrast,
the employer in this case testified about the appellant’s “work for him, potential work for
others, and availability.”
During closing argument, the State argued that although the appellant “may not be
making a ton of money[,]” he was employed and had the ability and capacity to work more.
Thus, the appellant could make regular payments under the child support order. On the
other hand, the defense argued that the appellant did not have the financial means to pay
child support due to his meager monthly income and rental obligation. The defense asserted
that there was no evidence about the appellant’s ability to work and earn more than his
current income.
The court found the appellant guilty. It imposed a sentence of one year of
incarceration and suspended all, to run consecutive to the sentence in the first case,
followed by five years of probation.
STANDARD OF REVIEW
Our Maryland appellate courts apply “a deferential standard when reviewing
sufficiency of evidence that asks whether ‘any rational trier of fact could have found the
elements of the crime beyond a reasonable doubt.’” State v. McGagh, 472 Md. 168, 193
(2021) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In so doing, “[w]e do not
measure the weight of the evidence[.]” Taylor v. State, 346 Md. 452, 457 (1997). Nor do
7 we ask ourselves if we “believe[] that the evidence at the trial established guilt beyond a
reasonable doubt.” Dawson v. State, 329 Md. 275, 281 (1993) (citations omitted).
Instead, “[i]f the evidence ‘either showed directly, or circumstantially, or supported
a rational inference of facts which could fairly convince a trier of fact of the defendant’s
guilt of the offenses charged beyond a reasonable doubt[,]’ then we will affirm the
conviction.” Bible v. State, 411 Md. 138, 156 (2009) (quoting State v. Stanley, 351 Md.
733, 750 (1998)). In accordance therewith, we view “the evidence in a light most favorable
to the State, [and] also all reasonable inferences deducible from the evidence in a light most
favorable to the State.” Smith v. State, 415 Md. 174, 185-86 (2010).
DISCUSSION
FL § 10-203(a) provides that “[a] parent may not willfully fail to provide for the
support of his or her minor child.” “Willful” is not defined in the statute. 3 When construing
a statutory term, “[o]ur chief objective is to ascertain the General Assembly’s purpose and
intent when it enacted the statute.” Berry v. Queen, 469 Md. 674, 687 (2020). The Supreme
Court of Maryland summarized the pertinent guiding principles of statutory interpretation:
We assume that the legislature’s intent is expressed in the statutory language and thus our statutory interpretation focuses primarily on the language of the statute to determine the purpose and intent of the General Assembly. We begin our analysis by first looking to the normal, plain meaning of the language of the statute, reading the statute as a whole to ensure that no word,
3 “[T]here are two acceptable spellings” of willful, “‘willful’ and ‘wilful[,]’” and “[t]he preferred spelling appears to be the former.” Deibler v. State, 365 Md. 185, 188 n.1 (2001). In this opinion, we follow the convention used in Deibler: when quoting law using the one-l spelling, we shall quote the word as it appears, and “[o]therwise, we shall use the preferred spelling.” Id. As noted supra, FL § 10-203(a) uses the preferred, two-ll spelling of the word. 8 clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.
Our inquiry is not confined to the specific statutory provision at issue on appeal. Instead, the plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim or policy of the Legislature in enacting the statute. To this end, it may be beneficial to analyze the statute’s relationship to earlier and subsequent legislation, and other material that fairly bears on the fundamental issue of legislative purpose or goal, which becomes the context within which we read the particular language before us in a given case.
While not necessary in every instance, we often find it prudent to scrutinize the legislative history to confirm that our interpretation of the statute’s plain language accords with the legislature’s intent.
Id. at 687-88 (cleaned up and citations omitted).
A.
Meaning of “Willful”
We begin by discerning the ordinary meaning of “willful.” When statutory terms
are not defined in a statute, “we may consult a dictionary and give words their ordinary
meaning.” Angel Enters. Ltd. P’ship v. Talbot Cnty., 474 Md. 237, 271 (2021). “This is an
essential starting point because the ‘ordinary, popular understanding of the English
language dictates interpretation of [the statute’s] terminology.’” Berry, 469 Md. at 688-89.
When FL § 10-203(a) was enacted in 1984, the legal definition of “willful” was
“[p]roceeding from a conscious motion of the will; voluntary. Intending the result which
actually comes to pass; designed; intentional; not accidental or involuntary.” WILLFUL,
Black’s Law Dictionary (5th ed. 1979). “A willful act may be described as one done
intentionally, knowingly, and purposefully, without justifiable excuse, as distinguished
from an act done carelessly, thoughtlessly, heedlessly, or inadvertently.” Id.; see Romeka
9 v. RadAmerica II, LLC, 485 Md. 307, 325-26 (2023) (considering the dictionary definition
in effect at the time the relevant statute was enacted); Hannah v. State, 260 Md. App. 701,
720 n.9 (2024) (same).
The Supreme Court of Maryland has “attempted to define what ‘willful’ or
‘willfully’ means on several occasions.” Frazier v. McCarron, 466 Md. 436, 450 (2019).
The Court noted that the word “willful,” in one form or another, appeared 547 times in the
Maryland Constitution, Code, and Rules in various contexts. Deibler v. State, 365 Md. 185,
192 (2001). It also noted that the United States Supreme Court had declared the word a
“word of many meanings” and that its context often influenced its construction. Id. (citation
omitted). From a survey of our prior cases, the Supreme Court of Maryland observed that
most, though not all, of the interpretations required “only that the act be committed
intentionally, rather than through inadvertence.” Id. at 195. The Court ultimately
concluded, however, that when construing the word as a statutory term, we must give the
term “the contextual meaning most probably intended by the Legislature, and, if the term
is not susceptible to a single common meaning, we must look at relevant legislative history
in an attempt to discern that intent.” Id.
Before exploring the relevant legislative history, we find it helpful to look to the
context in which the word has been used in situations involving nonpayment of child
support. See Berry, 469 Md. at 690 (“In order to interpret a word’s specific meaning in a
particular statute we look to the context in which the word is used.” (citation omitted)).
10 i.
Dorsey v. State & Ashford v. State
Our Supreme Court has examined willfulness in the context of criminal contempt
for nonpayment of child support. Criminal contempt is a common law offense “inherent in
all courts as a principal tool to protect the orderly administration of justice and the dignity
of that branch of government that adjudicates the rights and interests of the people.” 4 Smith
v. State, 382 Md. 329, 337 (2004). “Criminal contempt[] may be direct or constructive.”
Ashford, 358 Md. at 563. “Direct” criminal contempt has been defined as conduct that
occurs in the court’s presence or so near the court that it interferes with its proper function
and authority. Id. (citing Md. Rule 15-202(a)). An “indirect” or “constructive” criminal
contempt is any contempt other than a direct contempt. Id. (citing Md. Rule 15-202(a)).
“[I]n order to convict an accused of constructive criminal contempt, [the State] has
the burden of proving, beyond a reasonable doubt, a deliberate effort or a willful act of
commission or omission by the alleged contemnor committed with the knowledge that it
would frustrate the order of the court[.]” Dorsey v. State, 356 Md. 324, 352 (1999) (citation
and internal quotations omitted). Only conduct “that is willful or intentional may constitute
a criminal contempt.” Ashford, 358 Md. at 563 (emphasis added).
The Supreme Court of Maryland explained the mens rea requirement in a case
involving an alleged failure to comply with an order to pay child support:
4 Maryland Rule 15-205(a) provides that “[a] proceeding for constructive criminal contempt shall be docketed as a separate criminal action.” The State’s Attorney is among those who may initiate a proceeding for constructive criminal contempt. Md. Rule 15- 205(b). 11 Whether a defendant has failed to pay court[-]ordered support when he or she had the ability to do so and whether that defendant has, in bad faith, caused his or her own . . . inability to comply, with the intent of frustrating the court order, are material, and, indeed, necessary, considerations bearing on whether a defendant should be punished [for contempt.]
Lynch v. Lynch, 342 Md. 509, 528-29 (1996).
While ability to comply with a court order at the time of the alleged criminal contempt is not directly an element of the offense, evidence of an ability to comply, or evidence of a defendant’s conduct purposefully rendering himself unable to comply, may, depending on the circumstances, give rise to a legitimate inference that the defendant acted with the requisite willfulness and knowledge. By contrast, evidence of an inability to comply during the relevant period may, again depending upon the circumstances, support an inference that the defendant lacked a contumacious intent.
Dorsey, 356 Md. at 352 (citing Lynch, 342 Md. at 528-29). “These mens rea elements must
be established by evidence, and cannot simply be assumed. Nevertheless, like scienter
generally in criminal cases, they may be proven by circumstantial evidence and by
inferences drawn therefrom.” Id. (citation and internal quotations omitted).
Two cases applied this framework for willfulness: Dorsey v. State, 356 Md. 324
(1999), and Ashford v. State, 358 Md. 552 (2000). Dorsey involved two defendants, Dorsey
and Craft, who had been convicted of criminal contempt for their failure to pay court-
ordered child support. 356 Md. at 354. Dorsey was convicted based on the lack of support
payments for ten months, the absence of employment information in the agency’s records,
and the fact that the agency’s records reflected an incorrect address for Dorsey. Id. The
Supreme Court of Maryland held that these facts could not support an inference that
Dorsey’s failure to make support payments was willful and done with contumacious intent.
Id. The Court explained that there was a lack of evidence of Dorsey’s ability to pay:
12 The only evidence relating to the period was Dorsey’s testimony that he worked “a couple of weeks at Wendy’s,” that the pay was “[n]ot that much,” and that, during the remainder of the period since August 1996, he was either incarcerated or, when not incarcerated, he was unable to find work and “basically” did “nothing.”
Id. at 354-55.
Craft was convicted on the theory that he could have obtained a better job despite
losing his driver’s license. Id. at 355. The only evidence supporting this finding was the
trial court’s purported judicial notice that Craft could “probably make $240 a week working
at one of the fast food places.” Id. The Supreme Court noted, however, that:
There was no “evidence” relating to the employment opportunities at the fast food places, Craft’s qualifications for a job at these establishments, the wages available at such places, the distance between Craft’s residence and the fast food places, or the availability of public transportation.
Id. Accordingly, the Court determined that the evidence was “wholly insufficient to support
an inference that Craft’s failure to comply was accompanied by a contumacious intent.” Id.
Similarly, in Ashford v. State, 358 Md. 552 (2000), the Court held that the evidence
could not support a criminal contempt conviction for nonpayment of child support:
[T]he State’s evidence showed neither that [Ashford] had sufficient money to pay the child support order nor that he had the ability to earn sufficient money and wilfully failed to work and pay. In fact, the State’s sole witness testified that she was not aware of [Ashford’s] financial or personal situation since . . . the time that [Ashford] made his last child support payment. Thus, in limiting its proof to lack of compliance with the order, the State has failed to offer sufficient evidence to prove the crime of constructive criminal contempt beyond a reasonable doubt.
Id. at 574. The Court concluded that “[t]he record [was] simply devoid of any evidence
that [Ashford’s] failure to pay was deliberate or wilful.” Id. at 572.
13 ii.
Walker v. State
In Walker v. State, 234 Md. App. 160 (2017), this Court examined willfulness in a
case in which the defendant was charged with criminal contempt for not paying court-
ordered child support and the statutory offense for willfully failing to pay child support
under FL § 10-203(a). Id. at 163-64. Although we did not expressly define “willful” under
FL § 10-203(a), we concluded that there was sufficient evidence of willfulness to support
the convictions for both offenses. See id. at 168-71. We analyzed the evidence as follows:
Although establishing an affirmative intent to not do something is a difficult task, there was enough evidence for the jury to infer willfulness on [Walker’s] part. . . . [Walker] signed two consent orders acknowledging the existence and magnitude of his obligation. Nevertheless, despite being fully aware of his obligation, he repeatedly failed to make the required payments and allowed the amount he owed to increase up to $68,000.
Furthermore, unlike [in Dorsey and Ashford], there was evidence regarding [Walker’s] financials during some of the relevant periods. Testimony at trial established that [Walker] worked for a landscaping company and earned income during at least seven of the months that he did not pay child support. In contrast with Dorsey and Ashford, we know that [Walker] was earning income at certain points and still not paying child support. Meanwhile, [Walker] was living with his mother and paying her rent.
During periods of unemployment, [Walker] claimed that he was always looking for work, but when questioned about it he said he looked for jobs only two or three times a month. Looking for a job only two or three times a month is not equivalent to always looking for work. For someone who owes such a substantial amount in child support, that is not an adequate effort at obtaining employment.
Moreover, [the mother’s] testimony about her communications with [Walker] also show a pattern of deliberate non-payment. [The mother] testified that she would tell [Walker] over the phone that he needed to make his child support payments, and that he also promised her that he would. Nevertheless, he repeatedly failed to honor these promises to pay. . . .
14 [Walker’s] regular awareness that he was supposed to do so, his guarantees that he would do so, and his consistent and repeated failure to do so, permitted an inference that he knowingly and intentionally did not do so.
Id. at 170-71 (cleaned up and emphasis added). We held that “[t]aken all together,
[Walker’s] knowledge of his obligations, promises to pay, employment history, and
repeated failure to pay supports the jury’s conclusion that [he] willfully failed to pay his
required child support.” 5 Id. at 171.
Although undefined in Walker, we characterized “willful” under FL § 10-203(a) as
an act done “knowingly and intentionally.” See id. This is consistent with the legal
definition of the word. See WILLFUL, Black’s Law Dictionary (5th ed. 1979) (“A willful
act may be described as one done intentionally, knowingly, and purposefully, without
5 Although we combined the analysis of the evidence for both the common law offense of criminal contempt and the statutory offense under FL § 10-203(a), we noted that “the two crimes serve different purposes.” Walker, 234 Md. App. at 172. The purpose of the child support statute is “to assist spouses and children in directly procuring support and thereby preventing them from becoming public burdens, to punish the offense of failing to provide support, and, by the fear of punishment, to prevent the commission of such an offense.” State v. Berry, 287 Md. 491, 497 (1980). Criminal contempt is a common law offense “inherent in all courts as a principal tool to protect the orderly administration of justice and the dignity of that branch of government that adjudicates the rights and interests of the people.” Smith, 382 Md. at 337.
As stated, to prove criminal contempt, the prosecutor has the burden of proving “a deliberate effort or a wilful act of commission or omission by the alleged contemnor committed with the knowledge that it would frustrate the order of the court[.]” Dorsey, 356 Md. at 352 (citation omitted and emphasis added). Dorsey appears to use “wilful” interchangeably with “contumacious intent.” Id. (“[E]vidence of an inability to comply during the relevant period may, again depending upon the circumstances, support an inference that the defendant lacked a contumacious intent.” (Emphasis added)). As the State observes, to the extent that the analyses of willfulness and contumacious intent overlap, contumacious intent to frustrate the court’s order is specific to the contempt context and is lacking from the statutory offense under FL § 10-203(a). 15 justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly,
or inadvertently.”).
We now turn to the legislative history of FL § 10-203(a) to confirm that our
interpretation of “willful” accords with the legislature’s intent.
B.
Legislative History of FL § 10-203(a)
FL § 10-203(a) shares a common origin with its statutory counterpart for
nonpayment of spousal support under FL § 10-201(a) (“A spouse may not willfully fail to
provide for the support of the other spouse, without just cause.”). In 1896, Maryland
enacted § 47A to criminalize the desertion and non-support of wives and children. 1896
Md. Laws, Ch. 73, § 47A (“Desertion of Wife or Child”). “While one purpose underlying
the criminal non-support laws was to protect wives and children from becoming public
charges, the primary objective was ‘to provide directly for unsupported wives and children,
and to punish this offense [of non-support] against them, and by fear of punishment to
prevent the committing of such offenses.’” Cruickshank-Wallace v. Cnty. Banking and Tr.
Co., 165 Md. App. 300, 325 (2005) (citation omitted).
Section 47A made it a misdemeanor for a person to “without just cause desert or
wilfully neglect to provide for the support and maintenance of his wife or minor child[.]”
1896 Md. Laws, Ch. 73, § 47A (emphasis added). In the 19th century, although not defined
in Section 47A, the term “willful neglect” had a specific meaning. The 1891 edition of
Black’s Law Dictionary defined the term as “the neglect of the husband to provide for his
wife the common necessaries of life, he having the ability to do so; or it is the failure to do
16 so by reason of idleness, profligacy, or dissipation.” WILLFUL NEGLECT, Black’s Law
Dictionary (1st ed. 1891). 6
i
Recodification into Article 27, § 96
In 1951, the criminal non-support laws were recodified in Article 27, § 96, and the
section criminalizing the nonsupport of wife and child was divided into two subsections.
See Md. Code (1951), Art. 27, § 96(a), (b). Section 96(a) criminalized the desertion and
nonpayment of spousal support: “Any person who shall without just cause desert or wilfully
neglect to provide for the support and maintenance of his wife shall be deemed guilty of a
misdemeanor[.]” (Emphasis added). Subsection (b) criminalized the desertion and
nonpayment of child support: “Any parent who shall desert or wilfully neglect to provide
for the support and maintenance of his or her minor child shall be deemed guilty of a
misdemeanor[.]” (Emphasis added).
In Ewell v. State, 207 Md. 288 (1955), the Supreme Court of Maryland interpreted
the term “wilfully neglect” under Art. 27 § 96(a) in a case involving the nonpayment of
spousal support. Id. at 293. There, the husband had not paid spousal support due to a lack
of funds. Id. at 298. The husband’s testimony suggested that he refused to pay support
because his wife would not grant him a divorce. Id. The husband had made constant efforts
6 The word “wilful” by itself was then defined as “[p]roceeding from a conscious motion of the will; intending the result which actually comes to pass; designed; intentional; malicious.” WILFUL, Black’s Law Dictionary (1st ed. 1891) (“In common parlance, ‘willful’ is used in the sense of ‘intentional,’ as distinguished from ‘accidental’ or ‘involuntary.’”); see also WILFULLY, Black’s Law Dictionary (1st ed. 1891) (“willfully” defined as “[i]ntentionally”). 17 to obtain employment and had been unable to find any. Id. at 299. The evidence also
established that the husband rented an apartment but did not occupy it, and he maintained
a club membership without giving any financial support to his wife. Id. His testimony
indicated that he could have paid his wife $20 monthly during that period. Id. In a bench
trial, the court found the husband guilty of willful failure to pay spousal support. Id. at 291.
In determining whether the husband’s failure to support his wife was “wilfull,” the
Court construed the term “wilfully neglect” under § 96(a) to mean “wilfully fail”:
To be guilty under the statute, the husband must wilfully fail to provide for his wife without just cause. The term “wilfully” in criminal statutes has been said “to characterize an act done with deliberate intention for which there is no reasonable excuse.”
If the conviction is to be sustained, there must have been testimony from which the trier of the facts could have determined that the husband intentionally refused to support his wife, although he had the capacity to do so. The cases have held that wilful failure to support presupposes the existence of, or the ability to obtain, the means of support by the husband. He must have the means or the capacity to obtain them. . . . [R]egardless of the small amount actually being earned by the husband, if he has earning power, he must support his wife. . . . [T]he court may consider the earning power of the husband and is not restricted to his actual earnings.
Id. at 299 (cleaned up and emphasis added).
Based on the evidence, the Court affirmed the trial court’s finding that the husband
willfully failed to pay support to his wife. Id. at 301. It explained:
The evidence in this case shows that the husband had been successful all of his life in earning relatively large sums of money. There is no showing that his health would not permit him to work and the trial court, taking into account his experience and intelligence, could not unreasonably have found that employment, which would afford reasonable compensation to him, was available if he earnestly desired it. Too, we cannot say that the trial court was clearly erroneous in its conclusion that the appellant’s failure to support his wife was because he neither desired nor intended to do so as long as she
18 refused to divorce him. These two findings would sustain the conclusion that his conduct was wilful within the meaning of the statute.
Id.
ii.
Recodification into Article 27, § 88
In 1957, the General Assembly recodified the non-support statutes in Article 27, §
88. Md. Code (1957), Art. 27, § 88. Section 88(a) continued to criminalize the nonpayment
of spousal support. After various non-substantive changes to the text over the years, the
section read: “Any person who without just cause wilfully neglects to provide for the
support and maintenance of his or her spouse is guilty of a misdemeanor.” 7 Md. Code
(1957, 1982 Repl. Vol.), Art. 27, § 88(a) (emphasis added).
Section 88(b) continued to criminalize the nonpayment of child support. After
various non-substantive changes to the text over the years, it read: “Any parent who deserts
or wilfully neglects to provide for the support and maintenance of his or her child under the
age of 18 is guilty of a misdemeanor[.]” Md. Code (1957, 1982 Repl. Vol.), Art. 27, § 88(b)
(emphasis added).
iii.
Recodification into the Family Law Article
In 1984, the General Assembly recodified Art. 27, § 88(a) and (b) in Title 10,
Subtitle 2 of the Family Law Article. Section 88(a) for the nonpayment of spousal support
7 The text was changed to remove the criminal prohibition against desertion of the wife (see 1977 Md. Laws, Ch. 213 at 1852) and extend the criminal prohibition against non-support to all spouses, not just to the wife (see 1978 Md. Laws, Ch. 921 at 2703-04). 19 was recodified without substantive change in FL § 10-201(a). See 1984 Md. Laws Ch. 296
at 2134. The Revisor’s Note explains that the word “fail” was substituted for the former
word “neglects” “in light of Ewell v. State, 207 Md. 288 (1955)[,]” supra. Id. FL § 10-
201(a) thus reads, “A spouse may not willfully fail to provide for the support of the other
spouse, without just cause.”
Section 88(b) for the nonpayment of child support was recodified without
substantive change in FL § 10-203(a). See 1984 Md. Laws Ch. 296 at 2136. FL § 10-203(a)
currently reads: “A parent may not willfully fail to provide for the support of his or her
minor child.” (Emphasis added). Notably, the Revisor’s Note explains that the word “fail”
replaced the former word “neglects” “to conform to [FL] § 10-201[.]” Id. The word
substitution is significant because it reflects the General Assembly’s intent to interpret the
term “willfully fail” consistently under FL § 10-201(a) and § 10-203(a). See Davidson v.
Koerber, 454 F. Supp. 1256, 1260 (D. Md. 1978) (“Although the Revisor’s Notes are not
law, . . . they are strong and persuasive evidence of the legislative intent.”).
Based on the legislative history of the non-support statutes, we conclude that
“willfully” under FL § 10-203(a) describes “an act done with deliberate intention for which
there is no reasonable excuse[,]” as interpreted in Ewell. See Ewell, 207 Md. at 299. The
interpretation aligns with the legal definition and our characterization in Walker as an act
done “knowingly and intentionally.” This conclusion also adheres to well-established
canons of statutory interpretation. See Whack v. State, 338 Md. 665, 673 (1995) (“When
we are called upon to interpret two statutes that involve the same subject matter, have a
common purpose, and form part of the same system, we read them in pari materia and
20 construe them harmoniously.”); Westminster Mgmt., LLC v. Smith, 486 Md. 616, 644
(2024) (noting that after looking to the dictionary definition of an undefined statutory term,
the Court “broaden[s] [its] analysis to consider the other language of the provisions in
which the terms appear” within the statute).
C.
“Willful” Under FL § 10-203(a)
In considering the legislative history and decisional law, we interpret “willful”
under FL § 10-203(a) just as the Ewell Court did, meaning “an act done with deliberate
intention for which there is no reasonable excuse[.]” See Ewell, 207 Md. at 299; accord
Walker, 234 Md. App. at 171 (characterizing willfulness as an act done “knowingly and
intentionally”); WILLFUL, Black’s Law Dictionary (5th ed. 1979) (“A willful act may be
described as one done intentionally, knowingly, and purposefully, without justifiable
excuse[.]”). Accordingly, consistent with Ewell, we hold that to support a conviction for
willful failure to pay child support under FL § 10-203(a), there must be evidence from
which the trier of the facts can determine that the obligor parent intentionally refused to
support their child despite having the capacity to do so. See Ewell, 207 Md. at 299. Willful
failure to support presupposes the existence of, or the ability to obtain, the means of support
by the parent. See id. In other words, the obligor parent must have the means of paying
support or the capacity to obtain the means of paying support. See id. Willfulness may be
proven by circumstantial evidence and by inferences drawn therefrom. See Dorsey, 356
Md. at 352.
21 Our holding clarifies and confirms how this Court in Walker understood willfulness
under FL § 10-203(a), consistent with the considerations outlined in Ewell. In concluding
that the evidence in Walker was sufficient to support willfulness under FL § 10-203(a), we
took into account the fact that the obligor parent earned income for at least seven months
without paying support and used his income to pay rent (means of paying support). We
also considered his employment history (capacity to obtain the means for paying support),
among other relevant evidence of his knowing and intentional failure to pay child support
(i.e., unfulfilled promises to pay).
We now turn to the two cases and evaluate whether the evidence in each was
sufficient to prove willfulness under FL § 10-203(a).
D.
Analysis
i.
The appellant argues that the evidence was insufficient to prove his failure to pay
child support was willful. He contends there was neither evidence of “substantial financial
assets” from which he could have made payments nor evidence of “willful unemployment
with the purpose of avoiding making support payments.”
As stated, willfulness is an act done with deliberate intention for which there is no
reasonable excuse. There must be evidence—direct or circumstantial—from which the trier
of the facts can determine that the obligor parent intentionally refused to support their child
despite having the capacity to do so (means of paying support or the capacity to obtain the
22 means of paying support). While a showing of “substantial financial assets” or “willful
unemployment” to avoid making support payments can be compelling evidence of a parent
intentionally refusing to support their child, neither is a prerequisite of proving the offense
under FL § 10-203(a), as the appellant suggests. As the Ewell Court explained, “regardless
of the small amount actually being earned by the husband, if he has earning power, he must
support his wife. . . . [T]he court may consider the earning power of the husband and is not
restricted to his actual earnings.” Ewell, 207 Md. at 299 (citation omitted). We see no
reason why the same principle should not apply in a case involving the willful failure to
pay child support under FL § 10-203(a), especially considering the General Assembly’s
intent to construe “willfully fail” consistently with FL § 10-201(a).
The evidence was sufficient to demonstrate that the appellant willfully failed to pay
child support despite having the capacity to do so during the nonpayment period of May
2021 and May 2022. The appellant worked between one to four days per week, which
amounted to about 10 to 15 monthly jobs. Although there was no evidence about the exact
amount of his monthly income, the jury could have concluded that he earned or otherwise
had the means to pay $800 monthly rent. Despite having funds to pay rent, none was used
to pay the child support obligation during the nonpayment period. See, e.g., Walker, 234
Md. App. at 170 (father worked and earned income that he did not use to pay child support
during the relevant period; meanwhile, he was paying rent); Ewell, 207 Md. at 299
(husband willfully failed to pay spousal support where he rented and continued his
membership in a club while he was paying his wife nothing).
23 The appellant argues that his lack of a driver’s license prevented him from going to
work. The employer, however, testified that the appellant had been able to get rides to work
and back or work at the employer’s property that the appellant was renting. Despite the
appellant’s lack of a driver’s license, he was consistently working 10 or 15 jobs per month.
Moreover, the evidence showed a strained relationship between the appellant and
Mother 1. The appellant had not seen their child, who was six at the time of trial, since the
child was a few months old. The appellant testified that he had made multiple attempts to
contact Mother 1 during the nonpayment period to request “visitation rights” with the child.
But his attempts to contact Mother 1 were unsuccessful because she had “blocked” him. A
jury could have easily inferred that the appellant chose not to pay child support due to his
frustration over Mother 1’s refusal to allow him to see the child. See, e.g., Ewell, 207 Md.
at 301 (husband’s failure to support wife because she refused to divorce him would sustain
the conclusion that his conduct was willful). For the reasons stated, the totality of the
evidence supports the inference that the appellant’s failure to pay child support during the
nonpayment period was willful.
The appellant argues that the evidence in the second case was insufficient to
establish that he was willful in failing to pay child support. He again contends that the State
failed to prove the existence of “substantial financial assets” or that he willfully failed to
work with the intent to avoid making payments. As explained above, such evidence is not
a prerequisite to proving willfulness under the statute.
24 The evidence was sufficient to establish that the appellant willfully failed to pay
child support despite having the capacity to do so during the nonpayment period of October
2021 through May 2022. As the circuit court found:
[The appellant’s] employer and landlord . . . testified that during the period of time for which [the appellant] is charged with nonsupport, [the appellant] worked for [the employer]. That [the appellant] was making approximately $500 a month. [The employer] was paying [the appellant] $19 an hour. That [the employer] paid him through a cash app.
There was no indication that [the appellant] wasn’t paid, and that [the employer] was aware, although he couldn’t get any specific indication, that [the appellant] was doing jobs for other people and certainly that he had the ability to do jobs for other people and that [the employer] would like to see him do jobs for other people.
So the [c]ourt thinks that there is sufficient evidence based on all that to find beyond a reasonable doubt that [the appellant] willfully failed to provide child support for his minor child.
And he clearly–he is working. He clearly has the ability to work. He works for both [the employer] and for others. He is making some money a month. I guess it could be argued or is in dispute exactly the amount of that money but he does have income. He does have the ability to work, and for the months for which he is charged with nonsupport, he made absolutely no payment at all toward the support of his child.
The appellant again claims that his lack of a driver’s license prevented him from
working, but the employer testified that he and others would transport him to work. Despite
working and earning money, the appellant chose not to use any of his income to pay child
support. Viewing the evidence in the light most favorable to the State, we conclude that
the evidence adduced in the second case was sufficient for the court to find that the
appellant willfully failed to pay child support under FL § 10-203(a).
25 JUDGMENTS OF THE CIRCUIT COURT FOR KENT COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.