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    Refutation of legal points made in Appellee's Brief.

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    © All Rights Reserved
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    69 views56 pages

    Reply Brief #2594 September Term 2014

    Uploaded by

    Steve Chamberlain
    Refutation of legal points made in Appellee's Brief.

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    INTHE ‘COURT OF SPECIAL APPEALS (OF MARYLAND September Term, 2014 No. 2594 STEPHEN D. CHAMBERLAIN Appellant JUDITH C. CHAMBERLAIN Appellee APPEAL FROM THE CIRCUIT COURT OF ANNE ARUNDEL COUNTY (THE HONORABLE JUDGE PAUL F HARRIS, Jr) APPELLANT'S REPLY BRIEF STEPHEN D. CHAMBERLAIN Pro Se Litigant schamberlaindocs@gmail.com TABLE OF CONTENTS Page ‘TABLE OF CONTENTS. ‘TABLE OF CITATIONS, STATUTES AND RULES COUNTER-ARGUMENT . 1. THIS COURT MUST ONLY CONSIDER EVIDENCE IN THE RECORD AND DISREGARD UNSUPPORTED ALLEGATIONS, I, THE LAW AND THIS COURT'S PRECEDENTS DO NOT ALLOW CONTEMPT TO BE USED TO ENFORCE THIS ‘TYPE OF AGREEMENT Ill, THE TRIAL COURT'S SETTING OF THE PURGE AMOUNT WAS, AN ERROR OF LAW AS WELL AS CLEARLY ERRONEOUS « IV, THE AWARDING OF FEES WAS CLEARLY ERRONEOUS. \. THE TRIAL JUDGE'S PRIOR AND SUBSEQUENT CONDUCT PROVIDES EVIDENCE OF BIAS AND CONFIRMS: RECUSAL WAS REQUIRED CONCLUSION STATEMENT PURSUANT TO MD. RULE 8-504 (a) (9) CERTIFICATE OF SERVICE. APPENDIX 12 B Transcript Excerpt from 01/09/ 2014 Summary Judgment Hearing . . Rep. App. 1 Attorney Billing Statement Showing Pro Bono ‘Trial Work. Rep. App. 3 Original and Supplemental Complaints Filed With Maryland ‘Commission on Judicial Disabilities cee ee Reps App. 5 TABLE OF CITATIONS Cases Black v. Fox Hills N. Cmiy. Ass'n. Inc. 90 Md, App. 75, 83, 599 A.2d 1228 (1992) ‘Campiteli». Johnston (124 Md, App. 689, 761 A.24369 (2000) Chernick v. Chernick, 327 Md, 470, 610 A.24 770 (1992) lzey'.Elzey, 291 Md, 369, 374, 435 A.2d 445, 447-448 (1981) Garcia . Foulger Pratt Development, Inc, 15S Md. App. 634, 845 A.2d 16 (2003) Hawes v Liberty Homes, 100 Md.App. 222, 231, 640 A.24 743, 747 (1994) Johnson v. Johnson, 241 Md, a 420, 216 A.24 at 917 (1966) Jones». State, 342 Md, at 523, 677 A.2d at $91 (1988). . Kirby x Kirby, 129 Md. App. 212, 741 A.2d 528, $30 (1999) Langley v Langley, 88 Md, App. 535, 596 A.2d 89 (1991) Legal Aid Bureau, Inc, »: Bishop's Garth Assocs. Ltd. Pship, 75 Md. App. 214, 221, $40,A.24 1175 (1988) Mendelson v: Mendelson, 75 Md, App. 486, S41 A.2d 1331 (1988) . Panitz x: Pante, 144 Md, App. 627, 799 A.24 452 (2002) . Parler & Wobbler v. Miles & Stockbridge, 389 Md, 671, 706, 756 A.24 526 (2000) Scott State, 379 Md. 170, 840 4.24715 (2004) Seney » Seny, 97 Md. App. 544, 549, 631 A.2d 139 (1993) Shapiro » Shapiro, 346 Md. 648, 662, 697 A.2d 1342 (1997) 10 Statutes & Rules ‘Ma, Family Law Code Ann. § 8-103: Modification of deed, agreement, or settlement (a) Provision concerning children, -- The court may modify any provision of a deed, agreement, or settlement with respect tothe care. custody, education, or support of any minor child of the sponses, if the modification would he in the best interests ofthe child, (b) Exception for provision concerning support of spouse. ~The court may modify any provision of a deed, agreement, or settlement with respect to spousal support executed on or afler January 1, 1976, regardless of how the provision is stated, unless there isa provision that specifically states that the provisions with respect to spousal support are not subject to any court modification, (©) Certain exceptions for provision concerning alimony or support of spouse. -- The court may modify any provision of a deed, agreement, or settlement with respect to alimony or spousal support executed on or after April 13, 1976, regardless of how the provision is stated, unless there is: (2) an express waiver of alimony or spousal support; or (2) a provision that specifically states that the provisions with respect to alimony ‘oF spousal support are not subject to any court modification. (a) Provision concerning children. - The court may modify any provision of a deed, agreement, or settlement with respect to the care, custody, education, oF support of any minor child of the spouses, ifthe modification would be in the best interests of the child. (b) Exception for provision concerning support of spouse. ~The court may modify any provision of a decd, agrcement, or settlement with respect to spousal ‘support executed on or after January 1, 1976, regardless of how the provision is stated, unless there is a provision that specifically states thatthe provisions with respect to spousal support are not subject to any court modification. (©) Certain exceptions for provision concerning alimony or support of spouse. - ‘The court may modify any provision of a deed, agreement, or settlement with ‘respect to alimony or spousal support executed on or after April 13, 1976, regardless of how the provision is stated, unless there is: (1) an express waiver of alimony or spousal support; or (2) a provision that specifically states thatthe provisions with respect to alimony ‘oF spousal support are not subject to any court modification Md, Family Law Code Ann, § 8-105: Power of court to enforce or modify provisions (a) Enforcement by power of contempt. (1) The court may enforce by power of contempt the provisions of a deed, ‘agreement, or settlement that are merged into a divorce decree. (2) The court may enforce by power of contempt or as an independent contract not superseded by the divorce decree the provisions ofa deed, agreement, ot settlement that contain language that the deed, agreement, or settlement is, incorporated but not merged into a divorce decree. (b) Modification. -- The court may modify any provision of a deed, agreement, or settlement that is: 1) incorporated, whether or not merged, into a divorce decree; and (2) subject to modification under § 8-103 of this subtitle. MA. Rule 16-813 Rule 2.11: Disqualification (a) A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including the following circumstances: (1) The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding, (2) The judge knows that the judge, the judge's spouse or domestic partner, ora person within the third degree of relationship to either of them, or the spouse or domestic pariner of such a person: (A) isa party to the proceeding, or an officer, director, general partner, managing member, or trustee of @ party; (B) is acting as a lawyer inthe proceeding; (C) isa person who has more than a de minimis interest that could be substantially affected by the proceeding; or (0) is cly to be a material witness in the proceeding. (3) The judge knows that he or she, individually or as a fiduciary, ot any of the following persons has a significant financial interest in the subject matter in controversy or in a party to the proceeding: (A) the judge's spouse or domestic partner; (B) a person within the third degree of relationship to the judge; or (C) any other member of the judge's family residing in the judge's household, (4) The judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, ot opinion, that commits or appears to commit the judge to reach a particular result or rule ina particular way in the proceeding or controversy (5) The judge: for was associated with a the matter during such (A) served as a lawyer in the matter in controversy lawyer who participated substantially as a lawyer association; (B) served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy; (C) previously presided as a judge over the matter in another court; or (D) isa retired judge who is subject to recusal under Rule 3.9. (b) A judge shall keep informed about the judge's personal and fiduciary economic interests and make a reasonable effort to keep informed about the personal economic interests of the judge's spouse and minor children residing in the judge's household. (6) Ajjudge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (a) (1), may disclose on the record the basis of the Judge's disqualification and may ask the partis and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive ‘disqualification. If following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, thatthe judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding. [1] Under this Rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specifi provisions of paragraphs (a) (1) through (5) apply. In this Rule, “disqualification” has the same meaning as "recusal." [2] A judge's obligation not to hear or decide matters in which disqualification is, required applies regardless of whether a motion to disqualify is filed. [3] By decisional law, the rule of necessity may override the rule of recusal. For ‘example, a judge might be required to participate in judicial review of a judicial salary statute or might be the only judge available in a matter requiring. immediate judicial action, such as a hearing on probable cause or a temporary restraining ‘order. When the rule of necessity does override the rule of recusal, the judge must disclose on the record the basis for possible disqualification and, if practicable, use reasonable efforts to transfer the matter to another judge. [4] A judge should disclose on the record information thatthe judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification [5] This procedure gives the parties an opportunity to waive the recusal ifthe {judge agrees. The judge may comment on possible waiver but must ensure that consideration of the question of waiver is made independently of the judge. A party may act through counsel if counsel represents on the record that the party has ‘been consulted and consents. As a practical matter, a judge may request that all parties and their lawyers sign a waiver agreement. INTHE COURT OF SPECIAL APPEALS OF MARYLAND September Term, 2014 No. 2594 STEPHEN D. CHAMBERLA\ Appellant JUDITH C. CHAMBERLAIN Appellee APPEAL FROM THE CIRCUIT COURT OF ANNE ARUNDEL COUNTY (THE HONORABLE JUDGE PAUL F. HARRIS, Jr) APPELLANT'S REPLY BRIEF sPHEN D, CHAMBERLAIN Litigant| Pro Se schamberlaindoes@gmail.com COUNTER-ARGUMENTS. ‘THIS COURT MUST ONLY CONSIDER EVIDENCE IN THE RECORD AND DISREGARD UNSUPPORTED ALLEGATIONS. Any assertion or allegation made by Ms. Chamberlain that is not corroborated or supported by evidence in the record must be disregarded. The preponderance of Ms, ‘Chamberlain’s assertions are not supported by evidence because the statements are either demonstrably false, or at best, misleading. For example: ‘Assertion: “The Mother was secking to enforce @ provision of the parties’ Marital Settlement Agreement and a later Consent Order regarding payment for the parties’ child’s college education.” (Appellee’s Brief Pe. 1) Fact: This is demonstrably false. Appellee only sought judicial intervention to re-write clear and unambiguous contractual language. (Rep. App. 1-2, E-15, E-134, E-142-143) No provision of the contract needed to be enforced, and no breach of contract was identified. The only relief requested concerned college applications. not callege payment. (6-15, E-25, £-142-143, and particularly E-206 and B-227) Assertion: “The Father objected to the withdrawal of the request for dismissal, but the Trial Court decided to proceed with the merits hearing. (Appellee’s Brief Pe. 2) Fact: This is intentionally misleading. Granting withdrawal of the motion did not “un- moot” the moot issue nor eliminate Mr. Chamberlain's request for dismissal. All objections were related {0 the Court's insistence it could proceed when both parties had declared the only issue before the Court to be moot, and the issue was proven to be moot. (E-130-145) Assertion: “Rather than helping his son with his college education as he agreed to do originally as part ofthe divorce decree and later modified in the Consent Order of June 5, 2014, he has chosen to inundate the Mother and the Courts with repeated meritless filings.” (Appellee’s Brief Pg. 3) Fact: This is egregiously misleading. Mr. Chamberlain authorized his son to attend ‘Aubum University, one of only to schools where the son asked permission to apply. (E-17 Mot, for Summary Judgment Affidavit and Exhibits B and C) He also authorized his son to send applications to an additional 6 schools, including the University of ‘Alabama, (E-17 Mot. for Suminiry Judginent Exhibit B) He aubdionally offered to provide the same funding he would have provided had the son attended the school all three partes had agreed upon, as required by the Marital Settlement Agreement (MSA), to be used toward expenses at any’ schoo! the son wanted t attend ‘his offer was rejected, After the son had applied to Auburn and then tamed down 4 four year academie scholarship, the Mother sued in an effort to force Mr. Chamberlain to agree to Virginia Tech. The record clearly shows Mr. Chamberlain could not afford t0 pay for this school (which would cost $100,000.00 more than Auburn). This assertion shows a willful effort to deceive and mislead this Court as to the truth of Mr Chamberlain's efforts to meet his obligations. (B-355-386, F359, E-362-362, E-365, E369, [-372-373, E376, E386) Furthermore, every filing by Mr. Chamberlain has been necessitated by the facially meritless action initiated and maintained by Ms. Chamberlain. Judicial notice must be taken of Appellee filings to date: A Complaint to Enforce without identifying ; a Motion to Modify Child any provision whatsoever that needed enforcement (E Support for an adult (the son was emancipated by age when Appellee attempted to seek court intervention to increase the amount already stipulated by contract for the adult son until age 23!) (E-21); a Petition for Contempt when this agreement ean only be enforced through a breach of contract cause of action in a Colorado court (E-31); a second Petition for Contempt filed in a court whose jurisdiction to proceed had been superseded by this ‘Court's exclusive jurisdition over the issue (filed on 8/10/15 though Mr. Chamberlain thas yet to receive a copy). A fair and de novo review of each and every one of Mr. Chamber! n's filings show a necessary and vigorous defense to overtly meritless legal action and unscrupulous legal tactics consistently employed by Ms. Chamberlain without any relief being provided by the Court. (Mr. Chamberlain's then attorney, the widely respected Mr. Kevin Schaeffer of Council, Baradel, Kosmerl & Nolan, PA., elected not to bill him forthe tial afler expressing incredulousness with the proceedings. (Rep. App. 4)). The evidence ed ‘makes clear this allegation is simply the cast iron skillet attempting to call the poli stainless steel kettle black. All motions filed in this litigation will stand under the weight of any fair judicial scrutiny. Assertion: “He did not bring any financial records or documents to the hearing in response 0 atrial subpoena.” (Appellee’s Brief Pe. 3) Fact: Intentional deception and misrepresentation to this Court is sanetionable conduct. ‘Ms. Chamberlain references £-324 where Mr. Chamberlain confirms he was not served any subpoena, The record shows he li bring financial documents, albeit notin response to any subpoena, It should not surprise this Court that Ms. Chamberlain does not, and ‘cannot, provide proof of service to support her insinuations that Mr. Chamberlain received and ignored «subpoena. Yet she intentionally attempts to mislead this Court into believing Mr. Chamberlain not only ignored a subpoena, which is patently false, but also that he did not have financial docoments available for the tial cour’s review. This deception is as stark as itis disturbing. See clear evidence showing financial documents ‘were made available to the court by Mr. Chamberlain. (373, E-376, F-386) Assertion: The Mother testified that her total earnings with alimony and imcome trom her job as $88,000.00 per year.” (Appellee’s Brief Pg. 4) Fact: Referencing perjurious testimony is misleading. The record clearly shows a total support payment to Ms. Chamberlain of $78,000.00 per year from Appellant, (E-4 and E-13), Testimony shows Ms, Chamberlain claimed to eam $28,000.00 working 30 hours per week. (E-336). Ms, Chamberlain then admitted to increasing her work hours by 25%. (E-346) Without this increase, Appellee actually received $106,000.00 prior to inereasing her hours, and is now receives $113,000.00 per year by her own testimony. Assertion: “The Father was unable to produce any evidence whatsoever to contradict the Court's statements.” (Appellee’s Brief Pg. 5) Fact: This is a demonstrably misleading and false statement. In context, Ms. ‘Chamberlain states: “The Trial Court stated he did not know either of the parties and had no interest in the outcome.” Mr. Chamberlain did not need to address whether the Court was familiar with the parties, and he produced si ficant evidence proving the Court's interest in the outcome of the matter. This evidence directly contradicted the Court's statement. The totality of the record, especially the transcripts of the recusal and contempt hearings (E-230-311) show Mr. Chamberlain did provide substantial and unrefuted evidence which directly challenged the truthfulness of numerous statements made by the ‘Trial Court, highlighted the settled law the Court refused to comply with, and showed 83) ‘Appellee’s reliance on unsupported assertions and allegations throughout this how this overt bias demonstrated the Courts interest in the outcome of the case. (F litigation has become the norm when no legal ability to support her claims is available. This unethical and unprofessional legal tactic has evolved because litigators are rarely sanctioned by the Court, and are often rewarded with favorable rulings based on their "unsupported allegations instead of what they prove, what is true, or what is in the record. This Court should strike from consideration all assertions or allegations not supported by evidence. This should apply not only to Appellee’s Brief, but to the voluminous record of this case. ‘THE LAW AND THIS COURT'S PRECEDENTS DO NOT ALLOW CONTEMPT TO BE USED TO ENFORCE THIS TYPE OF AGREEMENT. Ms, Chamberlain's assertion that Mr. Chamberlain cited “abrogated case law” in support of his arguments (Appellee’s Brief Pg. 6) and “ramble{d] on citing law that was no longer valid andior relevant” (Appellee’s Brief Pg. 7) is factually incorrect. Importantly, notwithstanding this Court's unreported opinion in #719 September ‘Term 2014 (Apx. 3-4) which affirmed the lower cours jurisdiction inthis ease! afler Mr. Chamberlain had been tied and found in contempt, the June 5, 2014 Consent Order is facially void for lack of subject matter jurisdiction and Mr. Chamberlain cannot be held in contempt for disobedience to an unlawful order ‘This Court is authorized to review previous appellate decisions which are clearly erroneous and would result in a “manifest injustice”. (Decisions rendered by a prior appellate panel will generally govern the second appeal unless the previous decision is incorrect because is out of keeping with controlling principles announced by a higher court and following the dex jon would result in manifest injustice. Seow ». State, 379 Md. 170, 840 A.2d 715 (2004); The appellate court that rendered the decision is not precluded from considering an issue it previously decided, even in the same case, when exceptional circumstances so warrant and the previous decision is patently inconsistent ‘with controlling principles announced by a higher court and is therefore clearly incorrect, Hawes v. Liberty Homes, 100 Md.App. 222, 231, 640 A.24 743, 747 (1994)) Contrary to this Court’ previous opinion, the only issue before the lower Court ‘was proven {o be moot, the issue of payment for college was proven not to be ripe, and. the lower Court unquestionably acted without subject matter jurisdiction. During the recusal and contempt hearings, Mr. Chamberlain could not have provided more evidence ‘of these facts, more case law providing an unshakable legal foundation for his contention he cannot be held in contempt for disobedience to the June 5, 2014 Consent Order which is void by law, and the record could not be more replete with unjustifiable excuses by the + Certiorari (E-206) and Motion to Reconsider (E-207) denied by Court of Appeals; Pet. for Writ of Certiorari being drafted for United States Supreme Court consideration. 5 ‘Trial Court, all unreconcilable with clear law, for proceeding with a hearing on April 18, 2014 in the clear absence of jurisdiction, (See Appellant’s Brief Pes. 19-23, E-44, B-73, E-88, F-130, E-146, E-186, E-206, £227, £230, E404) Additionally, the law is settled that this type of agreement between partes cannot bbe enforced through contempt proceedings. The controlling ease regarding agreements between partis that may oF may not be enforced through the cour’s power of contempt Mendelson »: Mendelson, 75 Md. App. 486, $41 A.2d 1331 (1988). In that case, this Court determined there is a distint difference between agreements which could have deen imposed by the Court, and agreements which could not have been imposed by the Court but exist only because of an agreement between the parties. Mendelson makes clear that in the first circumstance the agreement may be enforced by contempt and in the second circumstance it eannot be enforeed by contempt. No ease law or statute abrogates, that devsion ‘Ms. Chamberlain misleads this Court by et Kirby, wo cases that clearly involve agreements the Court could have inposed. Chernick ‘was solely related to alimony and Kirby involved a Consent Agreement executed by a 1g Chernick v. Chernick and Kirby w. Cireuit Court to end litigation concerning “child support and visitation matters.” Chernick », Chernick, 327 Md, 470, 610 A.2d 770 (1992) and Kirby v. Kirby, 129 Md. App. 212, 741 A.2d $28, $30 (1999)) Ms. Chamberlain’s claim that *. . . a Consent ‘See Order, while maintaining attributes of a contract, is also an enforceable Court Order”, completely ignores the issue before this Court: dhe June 5. 2015 “Consent Order" was not.nor could be, an agreement the Court could have imposed upon. the parties. This was nt not a judicial deeree or order. Ms, Chamberlain has consistently argued and the tial hhas consistently held that the June 5, 2015 “Consent Order” was a mutually agreed upon contract between the partes presented to the Court, (Judge Harris: “You eame to me to sign off on a consent agreement ..." (E-432); Judge Harris: “... the parties reached an ‘agreement resolving all issues in this action . . .” (E-65); “The parties reached an agreement that included all outstanding issues . .." (Appellee's Brief #719 September ‘Term 2014 Pg. 2)'The Court also clearly understood this litigation did not involve spousal or child support when it declared “... this is a straight contract action” (E-235), “I need to ask you why did -- why is this @ contempt case? I can’t do much under the law. it's not child support or alimony. ..." (E-234); Ms, Warren: * child support issue..." (F-237) Its inarguable this “agreement” (where Mr. Chamberlain was to pro isis a-- not a-- directly certain amount of monetary assistance for his adult son to attend a college despite that college being a school he did not approve of as required by the parties Marital Settlement Agreement) to end a frivolous declaratory judgment action could nor be imposed by a ‘Court. Is settled law in Maryland that this kind of agreement, one bore only through ‘an agreement between the parties and whi h could not be judicially imposed, cannot be enforced through the contempt powers ofthe court, as was done here. Chernick and Kirby are inapplicable to the circumstance of this case and are intended to cloud the true issue before this Court. The judicial precepts outlined in Mendelson are instructive, controlling, and are not superseded by the Family Law Code or her cited ease law. Ms. Chamberlain's assertion that Family Law § 8-105 is controlling is flat wrong, While itis true that § 8-105 of the Family Law Code superseded part of Mendelson, it did so only with respect to providing courts with authority to modify spousal or child support agreements whether or not they were merged with the divoree decree. (See Shapiro v. Shapiro, 346 Md. 648, 662, 697 A.2d 1342 (1997) stating this purpose as the basis of § 8-105(b) which changed one part ofthe rule enunciated in Mendelson). Furthermore, modification af an agreement as stinuaed in § 8-105(b)2) only apples to provisions that are “subject to modification under § 8-103 of the same subtitle. ‘This section, § 8-105, is completely inapplicable tothe agreement in question as it clearly does not involve minor children, alimony, oF spousal support. (There is no dispute that the youngest “child” was emancipated by age in 2013.) Lastly, even ifthe Court were to disregard the clear and unambiguous wording of § 8-103(a) which restricts modification of support provisions to any “minor child”, the “Non-Modification” provision of the MSA clearly falls within the exception to the Cour’s broad authority in § 8-103(6)(2) to modify support agreements. Provision 27 of the Parties “Non-Moditication” provision states Except forthe terms and provisions of the paragraphs regarding child custody dad. regarding the monthly child support payments itis expressly understood and agreed by the partes that no term or provision in the Agreement shall be subject to any Court modification.” (italies and underline added) (E-4) ‘Whether this Court focuses on Shapiro, Langley » Langley (88 Md. App. 535, 596 ‘A.2d 89 (1991), Campitelli w Johnston (124 Md. App. 689, 761 A.24 369 (2000), Panitz ». Panitz (144 Md. App. 627, 199 A.2d 452 (2002)), or other case law after Mendelson which points to the Court's general authority over spousal and child support agreements regardless of whether the agreements are merged into the divorce decree or not, none abrogate the prot ‘agreement between partes that absent an agreement between the parties, the Court could ‘nol impose. ‘The trial court here had no authority to order Mr. Chamberlain to pay a certain jon of using the Court's contempt powers to enforce an amount of money toward the college expenses of a son, who had been emancipated by age and is an adult as defined by Maryland law, to end a declaratory judgment action ffivolously brought forth by Ms. Chamberlain, The June 5, 2014 Consent Order was not judicial decree of order, and could not have been imposed by the Court “absent an agreement by the parties." As such, it was clear error of law for the trial court 0 use its contempt powers 10 help one ply eifores the agreement as there is no foundation ‘whatsoever in the law to support such action. I, THE TRIAL COURT'S SETTING OF THE PURGE AMOUNT WAS AN ERROR OF LAW AS WELL AS CLEARLY ERRONEOUS. It was an error of law for the trial court to deny Mr. Chamberlain an “opportunity 10 show a present inability to purge the contempt.” Jones v: State, 342 Md, at 523, 677 A, 2d at 591 (1988). The Appellee provided just two sentences to convit ce this Court the trial court did not err: “Further, as a sanction for contempt, there was substantial evidence to support the ‘Cour’s finding that the Father hud the ability tw pay both de tition and the fees. The Court had evidence that the Father earned approximately $300,000.00 a year ‘and did not have to believe his testimony that he could not afford it, espe since the Father failed to produce subpoenaed documents.” ‘The evidence shows the first ofthese sentences tobe patently false, and the second to be wholly irelevant and misleading. The evidence shows the exact opposite of what Ms, Chamberlain contends. There are no fewer than 15 direct statements made to the Court testifying to an inability to comply withthe terms of the June 5, 2015 Consent (Order, or asking for the Court to consider financial documents which would corroborate P-355-356, F-359, E-362-362, E-365, E-369, E-372-373, E-376, his testimony. (See E386), ‘And while the Court “did not have to believe” Mr. Chamberlain's swom testimony, it did have a legal obligation to accept and consider the financial documents Mr. Chamberlain attempted to provide prior to making a determination as to what purge ‘amount he had the financially ability to comply with. (E373, B-376, E-386) (Where the order calls for the payment of money, the defendant is entitled to an “opportunity to show that he [or she] had neither the estate nor the ability to pay his (or her} obligation. Johnson ¥. Johnson, 241 Md, at 420, 216 A.24 at 917 (1966). ‘The trial judge's reliance on evidence Mr. Chamberlain had an income over {$100,000.00 (F-458) while disregarding substantial testimony concerning mandatory obligations and expenses, and the consistent claims of an inabili to comply, coupled with rejecting efforts to provide financial documents was clearly erroneous. (See references above) Its settled law the Court cannot set a purge amount with which the contemnor cannot comply. (In all eivil contempt proceedings, any order imposing a penalty upon the defendant must contain a purging provision with which the defendant has the ability 10 comply. Elzey w: Elzey, 291 Md, 369, 374, 435 A.2d 445, 447-448 (1981)). The Court ‘cannot make a legal determination a contemnor has the ability to comply with a purge amount based on income alone, Yet that 1S what the trial court did here. Whether the neome relied upon was $100,000.00 as stated by the trial court or $300,000.00 made by Mr. Chamberlain two years ago in 2013 as pointed to by Appellee, an ability to comply. ‘can only be legally determined by evaluating income offset by legitimate and obligatory expenses, Had Mr. Chamberlain's testimony been accepted, or had the trial court accepted the financial documents offered, it would have been clear Mr. Chamberlain was financially incapable of complying with either the June 5, 2014 Consent Order or the purge amount set by the trial court. Failure to determine expenses and subtract those from income when determining Mr. Chamberlain's financial ability to comply with the set purge amount, and arbitrarily setting the purge amount based solely on Mr. Chamberlain's apparent socioeconomic status, was clear error of law. IV, THE AWARDING OF FEES WAS CLEARLY ERRONEOUS Ms. Chamberlain points to Marquis ». Marquis in support of her contention the trial court did not abuse its discretion in awarding attorney's fees, ‘That case, however, is markedly different from this one. In Marguis, a eourt had ordered the Wife would receive 50 percent ofthe marital portion of the Husband’ military retirement benefits, This ease directly involved spousal support. The Husband was subsequently being charged with contempt for disobeying that court order. Inthe present cas, there is no disobedience to a “court order", rather, the dispute revolves around the validity of @ mutually agreed upon contract to end litigation which the Court had no power to impose on its own. The ‘defense presented to the contempt charges focused on whether the trial court had subject ‘matter jurisdiction to even proceed in the matter prior to the agreement being reached 10 (coerced), as well as whether the Court had the authority to use its contempt powers to enforce such an agreement, Awarding legal {ees as a sanction for presenting a vigorous and legally supported defense tothe contempt charges inthis case hardly qualifies as “an extraordinary remedy” which should be exercised only in rare and exceptional cases. (See Legal Aid Bureau, Inc, ». Bishop * Garth Assocs. Ltd. Pship, 75 Md Md. App. 214, 221, 540 A.2d 1175 (1988), Black »: Fax Hills N. Cm, Ass'n. Inc, 90 Md. App. 75, 83, $99 ‘A.2d 1228 (1992), Seney’». Seny, 97 Md. App. S44, $49, 631 A.2d 139 (1993), Parler & Wobbler . Miles & Stockbridge, 359 Md. 671, 706, 756 A.2d 526 (2000), and Garcia v Foulger Pratt Development, Ine, 155 Md. App. 634, 845 A.2d 16 (2003)). Ms. Chamberlain’s reliance on the trial court's findings. and her own unsupported assertions conceming the validity of the arguments presented during the contempt hearing, are misplaced. Even a cursory review of the arguments presented by Mr. Chamberlain demonstrate substantial evidence, law, and supporting case law was presented to prove the June 5, 2015 Consent Order was void by law and disobedience to that “order” was not punishable by contempt. Furthermore, substantial law was provided proving the trial court had no legal authority to use its contempt powers to help one party in their efforts to enforce this type of agreement. ‘The tril court pointed to no authori nor has Ms. Chamberlain provided a single citation, which refutes these arguments. This court cannot disregard the clear facts in the record proving the award of fees was an egregious abuse of discretion. Mr. Chamberlain sought more time to present his defense to the contempt charges than the 30 minutes first scheduled. (E-33) ‘The trial judge himself denied this request (E-34), whereupon the Master for the court subsequently tasked with presiding over the hearing never commenced it hecause there ‘was not enough time alloted (B35). The Court itself then determined the appropriate time needed to be 3 hours, as stated in its Order of November 24, 2014. (F-35) The trial judge himself then scheduled a recusal hearing contemporancously with the contempt hearing, substantially limiting the time to defend against the contempt charges (F-35). ” ‘The tral judge then failed to rule on Mr. Chamberlain’s motion to bifureate the hearings. (E- 36) This resulted in there being sufficient time remaining forthe contempt hearing ‘on January 16, 2015 and a third hearing being necessary on February 5, 2015 for closing, arguments on the contempt issue (E-37). It is simply ludicrous to suggest that Mr ‘Chamberlain is responsible for legal fees incurred to attend 3 hearings which were

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