Deadbeat parents jailed wrongfully, lawyer says

February 20, 1994|By Darren M. Allen | Darren M. Allen,Sun Staff Writer

Dozens of Carroll County child-support scofflaws are being placed in jail without hearings or trials, a county public defender has charged.

"It is patently unlawful to incarcerate someone in a civil case on a mere finding that he failed to make child support payments without a finding by the court that such failure amounted to contempt," Assistant Public Defender Judson K. Larrimore wrote a legal memorandum filed in Carroll Circuit Court.

Mr. Larrimore used the memo Thursday to win the release of David A. Zepp of Westminster, who had been in the Carroll

County Detention Center since Nov. 12 for failing to pay court-ordered child support.

Mr. Zepp, his lawyer contends, is not alone. He and many others are finding themselves locked in jail after a court-appointed master determines they have failed to keep their child-support payments current.

"By labeling the master's hearing as a missed payment hearing rather than contempt hearing, the state sought to . . . circumvent the protection afforded the defendant under Maryland Law," Mr. Larrimore wrote in the memo.

"A closer examination of the facts in this case reveals the subterfuge perpetrated on the defendant," he wrote.

County child support prosecutors called Mr. Larrimore's assertions groundless.

"The attempts to label our use of the law 'subterfuge' to try and take advantage of civil remedies is unfair," said Robert N. Smith III, the assistant state's attorney who argued against letting Mr. Zepp out of jail.

"We hold our heads high," Mr. Smith said. "We think what we're doing is fair and just."

Mr. Zepp was more than $2,700 behind in child-support payments to his former wife for his two children when he was arrested in November, court records show.

But, Mr. Larrimore said, county prosecutors never brought him in front of a circuit judge for a contempt hearing. Thus, Mr. Zepp's 179-day jail sentence -- and $1,500 nonreturnable bond -- is illegal, the defender said.

Carroll Circuit Judge Luke K. Burns Jr. lowered to $300 the amount Mr. Zepp had to pay to win his release. He was freed Thursday night.

As in all cases involving missed child support payments, Mr. Zepp was given numerous hearings before a court master, who told him each time about his obligation to pay and what would happen if he didn't, Mr. Smith said.

Prosecutors said they use incarceration only as a last resort, and only after a child-support scofflaw has been given the opportunity to sign a document promising to pay what he owes or to argue his case in front of a master.

"The system gives these people ample notice and opportunity to be heard," said James F. Brewer, the assistant state's attorney who heads the county's child support office.

Notice is irrelevant, Mr. Larrimore argued. To sentence someone to jail without a contempt hearing in front of a county judge, he said, is unconstitutional.

"What they're doing is circumventing due process of law," Mr. Larrimore said Friday.

"It denies individuals the opportunity to have a contempt charge heard in front of a judge," he said.

Master William T. Fitzgerald asked a circuit judge to issue an arrest warrant for Mr. Zepp because he failed to make his $375-a-month support payments.

In September, Mr. Zepp signed an agreement that said he would make the payments regularly. The agreement Mr. Zepp signed contained a paragraph that said if he failed "to make two $H regularly scheduled payments" he would be subject to arrest.

Prosecutors said his signature on the document meant that he agreed to and acknowledged the terms of the agreement. Mr. Larrimore said that paragraph didn't end the need for a contempt hearing before a judge.

"That's not enough," he said.

Prosecutors couldn't say how many people are jailed every year for failing to make child support payments in Carroll. But Mr. Larrimore says there are probably more than a dozen cases each year.

Civil cases such as Mr. Zepp's are different from criminal nonsupport cases, where formal criminal charges are issued and the defendant is arrested, allowed to post bail and have a court trial.

While there are hundreds of civil child-support cases annually in the county, Mr. Brewer said only 20 or 30 ever become criminal cases.

Mr. Brewer and Mr. Smith said criminal cases are the absolute last resort, while civil cases continue to hold out hope for payment of the child support.

"Our idea is to get the money out of" the traditional deadbeat parent, Mr. Brewer said.

"When we charge someone criminally, we're looking primarily for punishment," he said.

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