Thе issue presented in this case is whether Maryland Constitution, Article III, § 38, 1 prohibits use of civil contempt to enforce a defaulting parent’s court decreed child support obligation when the accrued arrearages have been reduced to judgment. The answer lies in the historical evolution of § 38 and case law.
I.
In
Brown v. Brown,
Stаting that “[t]he evident purpose of the framers was to abolish the useless, and sometimes cruel, imprisonment of
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persons who, having honestly become indebted to another, were unable to pay as promised,”
id.
at 279-280,
As indicated, the 1950 amendment had the effect of treating spousal support, alimony and child support the same for § 38 purposes. The Court opined that “what was sought to be and actually was, accomplished by the amendment was permission to enforce by imprisonment, if need be, the
legal
and
moral
obligation of support (when expressed in an equity decree) that parents owe to their children.”
Id.
at 283,
At issue in
Brown,
was whether a stepfather could be held in contempt for failure to support his stepdaughter after he had been divorced from her mother. The issue arose because the stepfather had executed a separation agreement requiring him to pay a specific amount for the
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stepdaughter’s support. Defining a dependent child as “an immediate offspring,”
id.
at 284,
II.
We have consistently held, both before 1950,
Kriedo v. Kriedo,
*632 The source of the child support obligation has been variously described. In Blades, we said
[t]he liability of the decedent for the support of his son is not founded on any contract, expressed or implied. It is simply a natural and legal duty, which is imposed on any father who brings a child into the world. When the court ... gave the custody of the lad to the father, it simply continued by implication that general duty. The obligation under the decree is still a personal one, and does not constitute a debt of the parent.
[t]he implied obligation on the part of the father to pay for necessaries for the support of a minor child ... arisfes] by reason of the duty and obligation imposed upon the father by law to provide properly and reasonably for the support of minor children, according to their station in life and the financial ability of the father.
Parenthood is both a biological and a legal status. By nature and by law, it confers rights and imposes duties. One of the most basic of these is the obligation of the parent to support the child until the law determines that he is able to care for himself. As it is the obligation of the parent to provide the support, so it is the right of the child to expect it____
The duty of parents to provide for the maintenance of their children is a principle of natural law; an obligation ... laid on them not only by nature herself, but by their own proper act, in bringing them into this world____ By begetting them, therefore, they have entered into a voluntary obligation____ And thus the children have the perfect right of receiving maintenance from their parents.
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Maryland Code (1991) § 5-203(b)(l) of the Family Law Article provides that parents “are jointly and severally responsible for the child’s support, care, nurture, welfare, and education____” That provision, reflective of the common law,
Zouck v. Zouck,
III.
It is the substance of the obligation that the monetary claim represents, not the form that it takes, that is dispositive.
2
In
Zouck,
The fact that the father has recognized his obligation and has agreed in writing to meet it in a specified amount, does not change his duty to a debt nor does it create the relationship of ordinary contract debtor and creditor between the father and the child, or the father and the mother, as the representative of or trustee for the child. His obligation remains the same whether it be calculated and required by original order of court, by voluntary agreement, or by voluntary agreement specifically ordered tо be performed by order of court. Nor is it significant that the mother ... has met the obligation which the father violated, so that the money he promised *635 to pay week by week, would now be paid, under court order, in a lump sum____ The fundamental nature of the support looked for by the agreement is not changed because the husband is now required to pay at one time what he should have paid week by week. (Citations omitted).
See Haughton v. Haughton,
if a specific obligation in connection with a divorce decree is labelled property division of “equitable distribution,” such designation will not preclude a finding that the debt is, in fact, in the nature of alimony or support and, consequently, not dischargeable. A court is to look at both the intent of the parties and/or the divоrce court and the effect/function of the obligation.
The United States Supreme Court has recognized,
albeit
in the bankruptcy context, that the child support obligation is a duty, not a debt,
Wetmore v. Markoe
At common law, a father is bound to support his legitimate children, and the obligation continues during their minority____ In this case the decree of the court provided that the children should remain in the custody of the wife, and the contract to contribute a certain sum yearly for the support of each child during his minority was simply a cоntract to do that which the law obliged him to do; that is, to support his minor children ... We think it was not the intention of Congress, in passing a bankruptcy act, to provide for the release of the father from his obligation to support his children by his discharge in bankruptcy, and if not, then we see no reason why his contract to do that which the law obliged him to do should be discharged in that way. As his discharge would not in any event terminate his obligation to support his children during their minority, we see no reason why his written contract acknowledging such obligation and agreeing to pаy a certain sum (which may be presumed to have been a reasonable one) in fulfillment thereof should be so discharged. It is true his promise to pay to the mother but on this branch of the contract it is for the purpose of supporting his two minor children, and he simply makes her his agent for that purpose.
[A] decree awarding alimony to the wife or children, or both, is not a debt which has been put in the form of a judgment, but rather a legal means of enforcing the obligation of a husband and father to support and maintain his wife and children. He owes this duty, not because of any contractual obligation, or as a debt due to *637 the wife, but because of the policy of the law which imposes the obligation upon the husband.
Wetmore,
The function of child support is to help a custodial parent maintain an adequate standard оf living for the child---Characterizing arrearages as nothing more than a “debt” owed to the custodial parent ignores the reality that the child is frequently the one who has been harmed by nonpayment and it is the child’s interests which are ultimately sought to be protected. The payment of arrearages compensates for the wrong to the child at least as much as it reimburses the custodial parent for monies spent on the child. Although the extent to which a child presently benefits from the payment of arrearages varies from case to case, past due child support is still more properly characterized as an unfulfilled duty to the child than a “debt” to the custodial parent.
IV.
Crystal R. Middleton, the appellant, and Brian K. Middleton, Sr., the appellee, were married on April 27, 1987, and separated two and one-half years later. They entered into a Consent Order for Custody, Child Support and Visitation, the terms of which, the appellant was awarded temporary custody of the parties minor child and the appellee was to pay weekly child support of $75, payable pursuant to a Consent Earnings Withholding Order. When, after a short time, the appellee ceased making payments pursuant to the order, the appellant filed a motion for contempt and other relief. After a hearing, the trial court found the appellee in civil contempt for failure to make child support payments. Rather than make a disposition at that time, however, the *638 trial court set the matter for a review hearing to permit the appellee to purge the contempt.
The appellee failed to аppear at the review hearing and a body attachment was issued. Subsequently, the appellant was granted a Judgment of Absolute Divorce, in which the prior consent orders were incorporated and the then current child support arrears were reduced to judgment.
Since the appellee has been located, his child support obligation has been met pursuant to a wage withholding order. The appellant, however, has sought to obtain payment of the arrears by invoking the court’s contempt powers. While finding, after a hearing, that the appellee was indeed in contempt, the court concluded that once support arrears are reduced to judgment, the nonpaying parent may not thereafter be held in civil contempt for failure to pay those arrears. It therefore vacated its prior order finding the appellee in contempt and denied, with prejudice, the appellant’s motion for contempt. We issued a writ of certiorari on our own motion.
V.
The appellee does not argue that a parent’s child suрport obligation is a debt, rather than a duty. Nor does he contend that the claim pursued by the appellant and represented by the judgment is for an obligation other than child support. He maintains, rather, only that, because the accrued arrearages were reduced to judgment by the court, the court’s contempt power, because its utilization involves the possibility of imprisonment, may not be used to enforce the judgment. In effect, then, he is maintaining that a parent’s child support obligation can be converted, by the enforcement method chosen, from a duty to a mere debt.
The constitutional provision prohibits imprisonment for debt. Although it does not define “debt”, the exclusions from the prohibition, which it does contain, make clear that it does not include support obligations. Thus, the reach of the constitutional provision is not determined, nor meant to *639 be, by the method chosen to enforce the child support claim. The determination whether a particular obligation constitutes a debt within the contemplation of the constitutional provision depends upon the essential nature of that obligation. Once the nature of the obligation has been determined, the provision’s reach has also been determined. We hold that since a parent’s child support obligation is not a debt within the prohibition of § 38, the obligation of the defaulting parent may be enforced by means of the court’s contempt power, including imprisonment, pending the purging of the default.
This holding is consistent with the result reached by sister courts that have considered the issue. In
Gibson v. Bennett,
To hold that such a judgment can be enforced only by execution at law would amount to depriving a support award of its inherent power of enforcement by contempt. *640 The courts have a duty to provide an effective, realistic means for enforcing a support order, or the parent or former spouse for all practical purposes becomes immune from an order for support. In our view, this duty includes enforcement of a judgment of support by equitable processes of the court bеcause a remedy at law that is ineffective in practice is not an adequate remedy.
Id.
at 569-70 (citation omitted).
3
See also Ex Parte Wilbanks,
Permitting a parent’s child support obligations to bе enforced by contempt and, if necessary, imprisonment, is consistent with this State’s policy of insuring that child support obligations are met and met to the extent necessary for the well-being of the child.
See e.g., Stambaugh v. Child Support Admin.,
It is also in line with the congressional policy to enforce support obligations by parents.
See
42 U.S.C. §§ 651-662 and 681-687 (1983 & 1988 Cum.Suppl.); 45 C.F.R. § 302 (1991).
See also Wehunt v. Ledbetter,
VI.
In ruling on the appellant’s motion for contempt and other relief, the trial court said:
I find as a fact in this case and reiterate the finding that I made back on March 6th, 1991, that Mr. Middleton has the present—had then in March of 1991, the present ability to pay the support and today has the present ability to pay the support.
I further find that Mr. Middleton contemptuously, without excuse or justification, and in wilful disregard of the court’s order requiring that he pay child support, both the original child support order, which for the record, was by consent signed by Judge Kaplan of this court on June 4, 1990, as well as my order, which is now vacated, of March *642 6, 1991, which required that he pay, I believe it was four hundred dollars within two weeks.
That Mr. Middleton wilfully refused to make those payments. And but for the October 15, 1991 Judgment of Divorce in this case, which among other things, reduced the three thousand, nine hundred sixty-nine dollars as of that time in child support payments to a money judgment, but for that money judgment, this court would prоceed to consider an appropriate sanction of Mr. Middleton for the contempt he has otherwise committed.
So that my ruling is clear, I am not ruling whatsoever that Mr. Middleton is not in contempt of court. I am ruling just the contrary. He is indeed in contempt of court, but on account of the money judgment that has come into existence, I am satisfied that Maryland law does not permit this plaintiff to take advantage of the contempt sanction.[ 4 ]
The appellee argues that even if a child support obligation which has been reduced to judgment may be enforced by contempt, that may occur only when it is shown by clear and convincing evidence that no adequate legal remedy is available and that all other remedies have been exhausted. He relies upon
D.D. v. M.T.,
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It is well settled in this state that civil contempt, as opposed to criminal contempt, is remedial rather than punitive.
McDaniel v. McDaniel,
A civil contempt proceeding is intended to preserve and enforce the rights of private parties to a suit and to compel obedience to orders and decrees primarily made to benefit such parties. These proceedings are generally remedial in nature and are intended to coerce future compliance. Thus, a penalty in a civil contempt must provide for purging. On the other hand, the penalty imposed in a criminal contempt is punishment for past misconduct which may not necessarily be capable of remedy. Therefore, such a penalty does not require a purging provision but may be purely punitive.
We have also addressed the respective burdens of proof they require: civil contempt is proven by the preponderance of the evidence; criminal contempt must be established beyond a reasonable doubt.
Giant of Md., Inc. v. State’s Attorney,
Despite its comments, for purposes of these proceedings, the court did not hold the appellee in contempt of court. Therefore, whether it applied the proper standard of proof in a civil contempt proceeding was not and, indeed, could not have been presented to the trial court for decision. Moreover, there is a difference between what must be proven to justify a civil contempt finding and what must be shown as a prerequisite to pursuing that remedy. The respondent proposes that we hold that what must be shown clearly and convincingly is that there are no adequate remedies at law. We have already held that the form of remedy or claim is not determinative of whether the con *644 tempt powers may be used; rather it is the nature of the obligation sought to be enforced. In any event, whether one has, and can prove that he or she has, an adequate remedy at law is not part of the proof for civil contempt.
JUDGMENT REVERSED; CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.
COSTS TO BE PAID BY THE APPELLEE.
Notes
. Maryland Constitution, Article III, § 38, provides:
No person shall be imprisoned for debt, but a valid decree of a court of competent jurisdiction or agreement approved by decree of said court for the support of a spouse or dependent children, or for the support of an illegitimate child or children, or for alimony, (either common law or аs defined by statute), shall not constitute a debt within the meaning of this section.
This provision was originally enacted as § 44, Article III of the Constitution of 1864. It was last amended in 1982. That amendment expressly made the provision gender neutral and clarified what is meant by alimony.
. This principle is somewhat analogous to that applicable in other family law contexts. In valuing marital property,
see
Maryland Code (1991) § 8-201 of the Family Law Article, although it may have been
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used for marital purposes, property acquired by one spouse before the marriage, by inheritance or gift, excluded by valid agreement or directly traceable to any of those sources retains its character as non-marital property. See
e.g. Pope v. Pope,
. To be sure, Florida, like many other states,
e.g.
Neb.Rev.Stat. § 42-369 (1988, 1991 Cum.Supp.); Or.Rev.Stat. § 107.095(2) (1991); Tex. Fam.Code Ann. § 14.41 (West 1986, 1991 Supp.), consistent with federal pоlicy, has a statute which requires child support arrears automatically to be reduced to judgment.
See
Fl.Stat. § 61.17(3). The
Gibson
court did not, however, rest its decision on that ground. It specifically noted that the statute merely embodied preexisting public policy that equitable remedies, including contempt, are available to enforce a judgment for support arrearages.
Gibson v. Bennett,
. The trial court’s ruling appears to have been premised upon the constitutional provision providing protection against imprisonment for debt being "based on the equitablе nature of the order. The equitable nature of the order to pay spousal support or child support rests on the theory that it really is not an order to pay money, it is an order to perform a duty, moral and legal, which is recognized in the law.” The trial court’s experience, and that of other experienced lawyers in the domestic relations area convinced him that the election of remedies doctrine applies and, therefore, contempt cannot be used to enforce a money judgment. The trial judge, then, viewed the enforcement mechanism, rather than the nature of the obligation, as being dispositive.