B.L. v. A.D., 17-0003

• Decision Date: 05 January 2018
• Docket Number: No. 17-0003,17-0003
• Parties: B.L., Defendant Below, Petitioner v. A.D., Plaintiff Below, Respondent
• Court: Supreme Court of West Virginia

B.L., Defendant Below, Petitioner v. A.D., Plaintiff Below, Respondent¹

No. 17-0003

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

January 5, 2018

(Monongalia County 05-C-429)

MEMORANDUM DECISION

Petitioner B.L., by counsel Edmund J. Rollo, appeals the order of the Circuit Court of Monongalia County, entered on December 6, 2016, denying his fifth motion to dissolve a civil contempt order. Respondent A.D. appears by counsel Ward D. Stone Jr. and Joseph V. Schaeffer.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

In 2005, respondent obtained a judgment of $500,000 against petitioner as compensation for petitioner's having infected respondent with the human immunodeficiency virus. Though petitioner received a distribution of nearly $375,000 from his mother's estate later that same year, he did not disclose the receipt of that money and failed to make any payment on the judgment. Petitioner has maintained (despite the dearth of corroborating evidence) that he donated the entirety of his inheritance in small, anonymous gifts to thousands of charities. The circuit court entered an order of civil contempt in July of 2010, upon petitioner's failure to offer evidence supporting his assertion that he made these charitable donations. Though petitioner was ordered to incarceration for his contempt, the circuit court later modified its order to provide forhome confinement. The contempt order specified that petitioner would remain confined until he paid $363,000 toward the judgment.²

In the years since he was found in contempt, petitioner has sought dissolution of the contempt order in five separate motions. In his most recent attempt, filed in September of 2016, petitioner asserted that the passage of time has rendered him unable to prove the charitable donations, that the contempt order has lost any coercive effect, and that home confinement detrimentally affects his health. The circuit court conducted a hearing, then denied the fifth motion to dissolve the contempt order on December 6, 2016. The appeal of that denial is before us on petitioner's single assignment of error: that the circuit court abused its discretion in denying his motion, because the contempt order is no longer coercive.³ Our review is established as follows:

"In reviewing the findings of fact and conclusions of law of a circuit court supporting a civil contempt order, we apply a three-pronged standard of review. We review the contempt order under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review." Syl. Pt. 1, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996).

Syl. Pt. 3, State ex rel. Zirkle v. Fox, 203 W. Va. 668, 669, 510 S.E.2d 502, 503 (1998).

As we explained on the last occasion that petitioner came before us seeking dissolution of his contempt order:

[c]ivil contempt proceedings are not meant to punish the defendant but rather to benefit the [p]laintiff. Floyd v. Watson, 163 W.Va. 65, 70, 254 S.E.2d 687, 691 (1979). "[C]oercive measures influence the defendant to act in a way that will ultimately benefit the moving party." Id. at 71, 254 S.E.2d at 691. "The appropriate sanction in a civil contempt case is an order that incarcerates a contemner for an indefinite term and that also specifies a reasonable manner inwhich the contempt may be purged thereby securing the immediate release of the contemner[.]" State ex rel. Robinson v. Michael, 166 W.Va. 660, 670, 276 S.E.2d 812, 818 (1981). However, a civil contempt order is inappropriate when the condemner has no ability to purge himself or the contempt order has lost its coercive effect. In re Yoho, 171 W.Va. 625, 631, 301 S.E.2d 581, 587 (1983); Shillitani v. U.S., 384 U.S. 364, 371, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). Petitioner bears the burden of proof in showing that he cannot comply with the court order or that the order has lost its coercive effect. State ex rel. Zirkle v. Fox, 203 W.Va. 668, 673, 510 S.E.2d 502, 507 (1998); In re Dickinson, 763 F.2d 84, 87 (2d Cir.1985); In re Crededio, 759 F.2d 589, 590-591 (7th Cir.1985). "Ordinarily, it is for the district judge to determine when and if the borderline between coercion and punishment has been reached." Soobzokov v. CBS, Inc., 642 F.2d 28, 31 (2d Cir.1981). A district court judge will have virtually unreviewable discretion in determining whether the contempt order still has a coercive effect. Simkin v. U.S., 715 F.2d 34, 38 (2d Cir.1983).

B.L. v. A.D., No. 12-0809, 2013 WL 6604448, at *3 (W.Va. Dec. 16, 2013)(memorandum decision).

We complement these earlier-stated principles with common-sense notions explained by our sister court:

The credibility of the contemnor's avowed refusal to comply with the order is one circumstance that a court may consider in determining whether a sanction for civil contempt remains coercive. ([In re] Crededio, 759 F.2d [589] at 593 [(7^th Cir. 1985)].) There is no requirement, however, that a court accept a contemnor's declaration as dispositive. (In re Parrish (2d Cir.1986), 782 F.2d 325, 327; Simkin [v. United States], 715 F.2d [34] at 37 [(2^nd Cir. 1983)]; United States v. Dien (2d Cir. 1979), 598 F.2d 743, 745.) "Obviously, the civil contempt power would be completely eviscerated were a defiant witness able to secure his release merely by boldly asserting that he will never comply with the court's order." In re Grand Jury Investigation, 600 F.2d [420] at 425 [(3^rd Cir. 1979)].

. . . The unique nature of the finding required in these circumstances has been expressed as follows:

"The determination to be made by the . . . judge is far removed from traditional fact[-]finding. What is called for is obviously not a retrospective determination of a historical fact, nor even a prospective determination of a future fact, such as the amount of medical expenses a tort victim will incur. The determination is not even akin to fact-finding as to a future hypothetical matter, such as the profits a plaintiff would have made but for a defendant's actionable wrongdoing. Instead, the . . . judge is obliged to look into the future and gauge, not what will happen, but the prospectthat something will happen." (Emphasis omitted.) In re Parrish (2d Cir. 1986), 782 F.2d 325, 327.

In view of the nature of this finding, and the trial judge's obvious advantage in seeing and hearing the witnesses firsthand, review of the decision is highly deferential. Crededio, 759 F.2d at 591; Simkin, 715 F.2d at 38.

Sanders v. Shephard, 163 Ill. 2d 534, 541-42, 645 N.E.2d 900, 904 (1994).

In light of these principles, we find that the circuit court did not abuse its discretion is denying petitioner's fifth motion to...