concurring in part and dissenting in part:
I fully agree with Part II A of the Court’s opinion that in these civil contempt cases incarceration of the contemnors was patently illegal under Elzey v. Elzey, 291 Md. 369, 435 A.2d 445 (1981), since the evidence plainly disclosed that the defendants lacked the present financial ability to comply with the support orders. As the majority opinion states, Elzey is wholly dispositive of both cases and mandates that the orders of the trial courts directing the confinement of the defendants must be reversed.
Because it is completely unnecessary to go beyond Elzey in disposing of these cases, I dissent from Part II B of the Court’s opinion which advances an alternative constitutional ground for reversal of the trial courts’ orders, namely, that "under the Due Process Clause of the Fourteenth Amendment and Article 24 of the Maryland Declaration of Rights, an indigent defendant in a civil contempt proceeding cannot be incarcerated unless he has been afforded the right to appointed counsel.” While I have no quarrel with a policy that would require the appointment of counsel for an indigent as a prerequisite to actual incarceration for violation of a support order, it is by no means clear-cut that the State and Federal Constitutions compel that result in all such cases, regardless of the circumstances. The due process right of indigents to appointed counsel in civil cases involving an actual loss of liberty is not *366absolute but depends upon a balancing of interests, i.e., the private interests at stake, the government’s interest, and the risk that the procedures used will lead to an erroneous decision. See Lassiter v. Department of Social Services, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981); Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). In other words, since due process is a flexible concept, a case-by-case evaluation is necessary to determine whether fundamental fairness requires the appointment of counsel in a case where an indigent contemnor is incarcerated for failure to satisfy a support order. Some courts have so held. See, e.g., Duval v. Duval, 114 N.H. 422, 322 A.2d 1 (1974); State ex rel. Dept. of Human Services v. Rael, 642 P.2d 1099 (N.M. 1982). In a similar vein, the Supreme Court has held that there is no inflexible constitutional rule granting an absolute right to counsel in cases involving indigents in parole and probation revocation hearings where incarceration actually resulted. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).
A number of the cases relied upon by the majority in support of its unnecessary constitutional analysis involve contempt of court orders, other than civil nonsupport orders, where legal issues of some complexity were involved in defending against the contempt citation. Unlike those cases, the only issue in cases of civil contempt of a nonsupport order is whether the respondent has the present financial ability to make the required payment; if not, Elzey flatly prohibits incarceration, a legal principle now well grounded in the law of this State. In any event, that counsel would be required in all such cases to satisfy the demands of due process under the Lassiter and Eldridge balancing of interests tests is, to me at least, far from clear.
It is, therefore, inexplicable to me that the majority would in this case violate the Court’s "established policy of not deciding constitutional questions unless necessary.” Town of Forest Heights v. Frank, 291 Md. 331, 336, 435 A.2d 425, 428 (1981). Cases in support of this time-honored and fundamental proposition are, of course, legion. See, e.g., *367Avara v. Baltimore News American, 292 Md. 543, 554 n. 7, 440 A.2d 368, 373 n. 7 (1982); Employ. Sec. v. Balto. Lutheran H. S., 291 Md. 750, 754 n. 2, 436 A.2d 481, 484 n. 2 (1981); Temoney v. State, 290 Md. 251, 259 n. 6, 429 A.2d 1018, 1022 n. 6 (1981); Scott v. State, 289 Md. 647, 651, 426 A.2d 923, 926 (1981); Simms v. State, 288 Md. 712, 725, 421 A.2d 957, 964 (1980); Kent v. State, 287 Md. 389, 393, 412 A.2d 1236, 1238 (1980); Hillard v. State, 286 Md. 145, 150 n. 1, 406 A.2d 415, 418 n. 1 (1979); State v. Raithel, 285 Md. 478, 484, 404 A.2d 264, 267 (1979); State v. Friedman, 283 Md. 701, 708 n. 5, 393 A.2d 1356, 1360 n. 5 (1978); Comm’r of Labor & Ind. v. Fitzwater, 280 Md. 14, 19, 371 A.2d 137, 140 (1977); Caplan Bros. v. Village of Cross Keys, 277 Md. 41, 45-46, 353 A.2d 237, 240 (1976); Prince George’s Co. v. Laurel, 262 Md. 171, 187, 277 A.2d 262, 270 (1971); Tyler v. State, 93 Md. 309, 314, 48 A. 840, 842 (1901); State v. Insley, 64 Md. 28, 30, 20 A. 1031 (1885).
As I would rest the reversal in these cases exclusively on the Elzey nonconstitutional ground, I do not join in Part II B of the majority opinion.