Butler v. Butler

• Decision Date: 23 January 1978
• Docket Number: Docket No. 28389
• Parties: Leroy BUTLER, Plaintiff-Appellant, v. Joan A. BUTLER (Hill), Defendant-Appellee. 80 Mich.App. 696, 265 N.W.2d 17
• Court: Court of Appeal of Michigan — District of US

Page 17

265 N.W.2d 17

Leroy BUTLER, Plaintiff-Appellant, v. Joan A. BUTLER (Hill), Defendant-Appellee.

Docket No. 28389.

80 Mich.App. 696, 265 N.W.2d 17

Court of Appeals of Michigan.

Jan. 23, 1978.

Released for Publication April 26, 1978.

[80 MICHAPP 697] Nelson & Bird, Associates by David A. Nelson, Davison, for plaintiff-appellant.

John Butler Hill, pro se.

Before GILLIS, P. J., and BASHARA and HEADING, ^* JJ.

BASHARA, Judge.

This is an appeal by plaintiff from a trial court order finding him in contempt of court for failure to make child support payments pursuant to a previously issued divorce judgment. The amount of the arrearage was established at $9,025.

Plaintiff appeared at the contempt proceedings without the assistance of counsel. It was disclosed, upon inquiry of the trial court, that plaintiff's only source of income was from public assistance payments under the aid to dependent children with an incapacitated parent program. Plaintiff also stated that he was appealing an adverse determination of disability in an effort to obtain social security benefits.

Since the litigants' divorce, plaintiff has remarried and has three children by that marriage. At the contempt hearing, plaintiff indicated that it had been four or five years since he had last engaged in gainful employment. Plaintiff stated that he had arthritis. In response to the trial court's statements that it appeared that plaintiff had not even made a reasonable attempt to find [80 MICHAPP 698] employment, the plaintiff stated only that he does go to a doctor for his arthritic condition. ¹

The trial court found the plaintiff to be in contempt of court, but did not order his incarceration. Instead, the court instructed the plaintiff to seek employment and set a sentencing date for approximately three weeks hence, at which time plaintiff was to advise the court as to whether he was able to find employment. Plaintiff was admonished that he would be sent to jail unless he found a job.

At the sentencing proceeding, plaintiff appeared with counsel and without a job. A motion was made to set aside the judgment of contempt, which was denied, the trial court stating that it would not relitigate the issue of plaintiff's contempt. Plaintiff's counsel then proceeded to present medical reports as to the extent of plaintiff's arthritic condition. The trial court acknowledged the existence of plaintiff's arthritis, but found after an examination of the medical evidence that plaintiff was not precluded by the disease from engaging in all forms of employment. Further, as the trial court noted, there was no explanation or offer of any statements as to the efforts plaintiff made to find employment or why he was unable to secure a [80 MICHAPP 699] job. Plaintiff was sentenced to 30 days in the county jail, to be suspended upon payment of $300, which would be applied to the past due child support.

It is plaintiff's contention that the trial court's judgment of contempt rests upon an impermissibly narrow scope of factual findings and, therefore, cannot be sustained. This argument is based exclusively upon the recent case of Sword v. Sword, 399 Mich. 367, 249 N.W.2d 88 (1976), which affirmed this Court's decision reported at 59 Mich.App. 730, 229 N.W.2d 907 (1975). Viewed in light of Sword, plaintiff maintains essentially that the trial court's judgment is based only upon a finding that there was a child support arrearage and that plaintiff was physically able to work.

If plaintiff's characterization of the foundation for the trial court's judgment were accurate, we would reverse that judgment and remand this case without hesitation. However, there is a determinative distinction between the circumstances in this case and those in Sword.

In Sword the alleged contemnor explained to the trial court the considerable efforts that were made unsuccessfully to find employment. Sword v. Sword, 59 Mich.App. at 733, 229 N.W.2d at 908. Notwithstanding the apparent inability to secure employment after a good faith effort, the trial court held the defendant in contempt and sentenced him to jail. Thus, the defendant was incarcerated for disobedience of an order with which it was impossible for him to comply. Only the defendant's physical ability to work was considered by the trial court. Id. at 734, 229 N.W.2d at 908.

Both this Court and the Supreme Court concluded that physical ability to work is not a sufficient basis alone to sustain a judgment of contempt[80 MICHAPP 700] for failure to make child support payments. Sword, supra. Civil contempt is a coercive remedy, designed to induce compliance with a court order by imposing the threat of incarceration until the contemnor renders that compliance. 399 Mich. at 380, 249 N.W.2d at 92-93. However, if the alleged contemnor has made a diligent effort to obey the court's order, but is unable to acquire the requisite means for compliance, no amount of coercive force applied in a civil contempt proceeding will alter that state of circumstances. Accordingly, Sword mandates that an inquiry be made beyond ascertaining only that the alleged contemnor has the physical ability to work.

A number of areas into which the trial...