Jerro-Hencken v. Hencken

MELISSA JERRO-HENCKEN v. JOHN HENCKEN

No. 1409-2020

Court of Special Appeals of Maryland

November 23, 2021

Circuit Court for Baltimore County Case No. 03-C-17-005437

Fader C.J., Zic, Salmon, James P. (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

Fader C.J.

We are asked to determine whether the Circuit Court for Baltimore County erred when it held the appellant, Melissa Jerro-Hencken, in constructive civil contempt for failing to make five items of personal property available to the appellee, John Hencken, as ordered by the court's judgment of absolute divorce. Because the circuit court did not satisfy the requirements of Rule 15-206(e) to conduct an on-the-record examination of Ms. Jerro-Hencken and determine whether she had knowingly and voluntarily waived her right to counsel, we must reverse.

BACKGROUND

Ms Jerro-Hencken was granted a divorce from Mr. Hencken by a judgment of absolute divorce entered on March 13, 2020. Two provisions of the judgment that concern five items of personal property are relevant here. First, in dividing the parties' non-marital property, the court provided: "Father shall keep the Civil War era cavalry sabre, two small oil paintings of street scenes, and gold family crest ring." Second, in dividing the parties' marital property, the court provided: "Father shall keep the Gypsy painting within a gold frame." We will refer to these five items collectively as the "Items."

In June 2020, Mr. Hencken filed a petition for contempt in which he asserted that Ms. Jerro-Hencken had willfully disobeyed the divorce judgment by failing to turn over, among other things, the Items. Mr. Hencken asked that the court find Ms. Jerro-Hencken in contempt and "[i]ssue an Order incarcerating [her] until [she] purges herself by disclosing the whereabouts of the missing items and return[s] them to their rightful owner[.]"

The court issued a show cause order, which included the advisements required by Rule 15-206(c)(2)(C) when incarceration is sought, including that Ms. Jerro-Hencken had a right to a lawyer, benefits of having a lawyer, the potential availability of representation by the Public Defender, and a warning that if she were to appear at the hearing without counsel "the judge may find that you have waived your right to a lawyer, and the hearing may be held with you unrepresented by a lawyer." In August 2020, Ms. Jerro-Hencken, who was self-represented at the time, filed a response to Mr. Hencken's petition.

The court held a hearing on Mr. Hencken's petition, along with other matters, in December 2020. Ms. Jerro-Hencken appeared without counsel, which the court referenced only twice. First, at the outset of the hearing, the court asked, "you are representing yourself in this proceeding, correct?" to which Ms. Jerro-Hencken responded, "Yes, sir." Then, after a brief break later in the proceeding, the court again asked, "[y]ou are representing yourself in this, in this matter, correct?" and Ms. Jerro-Hencken responded, "Correct." The court did not make any inquiry into whether Ms. Jerro-Hencken was aware of her right to counsel, whether she intended to waive that right, or whether any such waiver was knowing and voluntary.

At the hearing, Mr. Hencken presented testimony from two witnesses: (1) the trustee appointed to sell the marital home, who testified that the Items were in the home at the time of the divorce and that Ms. Jerro-Hencken was the only person with access to the house; and (2) Mr. Hencken, who testified that he had not received the Items and believed that Ms. Jerro-Hencken still had them. Ms. Jerro-Hencken did not testify or present any other evidence.

Following the hearing, the court held Ms. Jerro-Hencken in contempt. The court concluded that Ms. Jerro-Hencken had possession or control over the Items and that her failure to provide Mr. Hencken with access to them violated the divorce judgment. The court ordered Ms. Jerro-Hencken to turn the Items over to Mr. Hencken or his counsel by January 18, 2021 and provided that if she did not, "the Court will hold further hearings on the issue of damages and/or incarceration of Ms. Jerro-Hencken for Contempt of Court."

On January 11, 2021, Ms. Jerro-Hencken, newly represented by limited purpose counsel, filed a motion to alter or amend pursuant to Rule 2-534. In the motion, Ms. Jerro-Hencken requested that the contempt order be set aside both because she was prejudiced by being self-represented at the hearing and she was unable to comply with the order because she did not have the Items. On February 10, 2021, the court denied Ms. Jerro-Hencken's motion. Ms. Jerro-Hencken filed this timely appeal two days later.

DISCUSSION

"[T]his Court will not disturb a contempt order absent an abuse of discretion or a clearly erroneous finding of fact upon which the contempt was imposed." Kowalczyk v Bresler, 231 Md.App. 203, 209 (2016). A trial court abuses its discretion when its decision encompasses an error of law, Schlotzhauer v. Morton, 224 Md.App. 72, 84-85 (2015), which this Court reviews without deference, Walter v. Gunter, 367 Md. 386, 392 (2002).

Ms. Jerro-Hencken raises three issues on appeal. First, she argues that she was denied the right to counsel when the court did not make the required inquiries into whether she (1) received notice of that right and (2) knowingly and voluntarily waived that right. Second, she contends that the contempt order was deficient. Third, she argues that the judgment of absolute divorce was too vague to form the basis for a finding of contempt. Because the circuit court did not satisfy the requirements of Rule 15-206(e) concerning waiver of counsel and because the order of contempt does not include a sanction and proper purge provision, we will reverse.

I. The Circuit Court Did Not Comply with the Requirements of Rule 15-206(e).

As an initial matter, we must confront Mr. Hencken's contention that Ms. Jerro-Hencken failed to preserve her right-to-counsel argument by not raising it before the circuit court. "Ordinarily, the appellate court will not decide any . . . issue [other than jurisdiction] unless it plainly appears by the record to have been raised in or decided by the trial court[.]" Johnson v. State, 457 Md. 513, 527 (2018) (quoting Md. Rule 8-131(a)) (alteration in original). However, where the issue is waiver of a litigant's fundamental right to counsel, a court is "required to ensure that any waiver of the right is knowing and voluntary," regardless of whether the litigant raises that issue. Smallwood v. State, 237 Md.App. 389, 397 (2018). That is because "the right to counsel is 'absolute and can only be foregone by the defendant's affirmative intelligent and knowing waiver.'" Id. (quoting Robinson v. State, 410 Md. 91, 107 (2009)) (internal quotation marks omitted). In other words, in contrast with most other issues that arise in litigation, a litigant with a right to counsel loses that right only by an express, knowing, and voluntary waiver of it, not just by failing to make an affirmative demand for it. As we will discuss, the record does not reflect any such waiver by Ms. Jerro-Hencken and, accordingly, we do not think she has failed to preserve her right to raise the issue on appeal. Moreover, "even if not preserved, we would choose to exercise our discretion under Rule 8-131(a) to consider [Ms. Jerro-Hencken's] claim." Smallwood, 237 Md.App. at 398.

Rule 15-206(e) provides a procedure that courts must follow when an alleged contemnor who faces the possibility of incarceration appears at a contempt proceeding without counsel. First, as applicable here, the court must "make certain" that the alleged contemnor received a notice that incarceration was being sought and of the attendant right to counsel, complete with the language provided in 15-206(c)(2)(C). Md. Rule 15-206(e)(2)(A). Second, "if the alleged contemnor indicates a desire to waive counsel, the court shall determine, after an examination of the alleged contemnor on the record, that the waiver is knowing and voluntary." Md. Rule 15-206(e)(2)(B). Third, "[i]f the alleged contemnor indicates a desire to have counsel" and the court verifies that the required notice was received, the court must "permit the alleged contemnor to explain the appearance without counsel," and determine whether "there is a meritorious reason for the alleged contemnor's appearance without counsel." Md. Rule 15-206(e)(2)(C). If so, the court must continue the action and advise the litigant of the need to obtain counsel. Id. If not, "the court may determine that the alleged contemnor has waived counsel by failing or refusing to obtain counsel and may proceed with the hearing." Id.

Here the court did not make any express inquiry into whether Ms. Jerro-Hencken received the required notice or desired to waive her right to counsel. Nonetheless, solely for the sake of argument, we will assume that: (1) the court implicitly ascertained that Ms. Jerro-Hencken had received the required notice; (2) the court implicitly ascertained that Ms. Jerro-Hencken desired to waive counsel; and (3) the court was permitted to make both of those findings implicitly. Even so, the court did not comply with the requirements of Rule 15-206(e)(2)(B) that it conduct an examination of Ms. Jerro-Hencken on the record and, based on that examination, determine that her waiver of counsel was knowing and voluntary. The sole discussion of Ms. Jerro-Hencken's self-represented status at the hearing was the two occasions on which the court confirmed that Ms. Jerro-Hencken was representing herself that day. The court did not inquire as to whether Ms. Jerro-Hencken desired to represent herself, did not ask any questions designed to elicit whether her self-representation was a knowing...