Kowalczyk v. Bresler
149 A.3d 1247
| Md. Ct. Spec. App. | 2016Background
- Parents share one minor child, M.; California custody decree (2002) later registered in Maryland; legal custody shared by consent in 2012, but sole legal custody awarded to Bresler in Dec. 2014.
- In Oct. 2015 the circuit court awarded primary physical custody to Bresler and ordered Kowalczyk’s visitation to be supervised; separate Oct. 21, 2015 "Temporary Access Order" permitted supervised visits and monitored video calls and required a psychological evaluation.
- Bresler filed an emergency contempt petition alleging Kowalczyk violated the visitation orders by unsupervised electronic communications with M.
- At a Dec. 1, 2015 contempt hearing, the court admitted text messages sent via a PlayStation between Kowalczyk and M., found contempt, and on Dec. 3 ordered suspension of all visitation as a purge condition until further order.
- The court relied on Family Law § 9-105 as authority for the temporary modification; Kowalczyk appealed asserting (1) the purge provision was punitive and non-purgable, and (2) the modification was unlawful because § 9-105 did not apply and the court made no best-interests findings or provided proper notice.
Issues
| Issue | Kowalczyk's Argument | Bresler's Argument | Held |
|---|---|---|---|
| Whether contempt finding and purge provision were lawful civil contempt/coercive | Contempt sanction suspended visitation as punishment for past conduct; purge condition gave no present ability to comply | Evidence supported contempt; modification/purge was ancillary and aimed at encouraging compliance | Vacated contempt and sanction: purge provision punitive because contemnor lacked present ability to avoid sanction |
| Whether court could temporarily modify visitation under FL § 9-105 in contempt proceeding | § 9-105 inapplicable: statute targets interference by other party; court made no best-interests findings or change-of-circumstances finding and lacked proper notice | Statute authorized temporary suspension as remedy for interference and to ensure compliance | Vacated modification: § 9-105 did not apply where the violation was unauthorized contact by the visiting parent and the court made no best-interests findings |
Key Cases Cited
- Marquis v. Marquis, 175 Md. App. 734 (2007) (civil contempt preserves private parties’ rights and coerces future compliance)
- Elzey v. Elzey, 291 Md. 369 (1981) (purge provision must afford present ability to comply to render contempt coercive)
- Jones v. State, 351 Md. 264 (1998) (civil contempt purge must allow contemnor to avoid penalty; purely punitive sanctions invalid)
- Dodson v. Dodson, 380 Md. 438 (2004) (civil contempt improper where contemnor cannot presently comply to purge sanction)
- Gertz v. Md. Dept. of Env’t, 199 Md. App. 413 (2011) (distinguishes coercive purge provisions from punitive sanctions)
- Gillespie v. Gillespie, 206 Md. App. 146 (2012) (custody modifications require best-interests analysis)