Greene v. District Court of Polk County, 83-04

• Decision Date: 21 December 1983
• Docket Number: No. 83-04,83-04
• Citation: 342 N.W.2d 818
• Parties: James Leo GREENE, Plaintiff, v. DISTRICT COURT OF POLK COUNTY, Defendant.
• Court: Iowa Supreme Court

Page 818

342 N.W.2d 818

James Leo GREENE, Plaintiff, v. DISTRICT COURT OF POLK COUNTY, Defendant.

No. 83-04.

Supreme Court of Iowa.

Dec. 21, 1983.

Rehearing Denied Jan. 19, 1984.

William H. Michelson, Des Moines, for plaintiff.

Thomas J. Miller, Atty. Gen., Gordon E. Allen, Sp. Asst. Atty. Gen., and Stephen C. Robinson, Asst. Atty. Gen., for defendant.

Considered en banc.

SCHULTZ, Justice.

In this original certiorari action, plaintiff, James Leo Greene, challenges a district court order committing him to jail. This order enforced a previous contempt judgment and jail sentence entered against Greene for failure to pay child support. Confinement upon the sentence was withheld pending Greene's satisfaction of certain conditions, notably payment of a portion of the delinquent child support arrearage. The determinative issue is whether due process required the district court, prior to issuance of commitment, to hold another hearing to determine whether Greene was responsible for his failure to make the conditional payments. We hold that such hearing is required and sustain the writ.

On November 18, 1977, Greene was found in contempt of court for being delinquent in his child support payments. These obligations arose from a 1975 dissolution decree. Commitment was deferred subject to certain conditions which Greene never fully satisfied. In October 1980, the warrant was issued and then withdrawn subject to new conditions. A certiorari action was filed with us. This action was untimely as to the October orders, and we declined to review the propriety of those orders at that time. Greene v. Iowa District Court for Polk County, 312 N.W.2d 915, 919-20 (Iowa 1981) (Greene I ). On February 17, 1982, the district court entered another order that Greene approved as to form. This order again withheld commitment and imposed new conditions that were not fulfilled. After an application by the Friend of Court, the district court on December 8, 1982, in an ex parte proceeding, finally ordered the original commitment carried out. After Greene was jailed, his petition for writ of certiorari was granted and the jail sentence stayed during the pendency of this action.

In this action, Greene challenges the issuance of commitment asserting that (1) imprisonment for failing to comply with the conditional orders without a hearing violated due process; (2) punishment for contempt is unavailable for support arrearages assigned to the State; (3) imprisonment for failure to pay assigned arrearages is imprisonment for a debt in violation of Iowa Constitution Art. I, § 9; and (4) the district court lacked jurisdiction to jail him since he had purged himself by substantially complying with the 1977 conditional order or, alternatively, the delay in enforcing punishment rendered the order stale.

I. Due process. Defendant claims that he was denied due process when he was summarily jailed on December 8, 1982. He complains because the district court did not attempt to determine why he was in default again, nor did it give him any opportunity to be heard on this latest accusation. In anticipation of a claim that he had waived further notice or hearing before commitment could issue, he also contends the February conditional order was a nullity. We will not address the issue of waiver or nullity in view of our decision here.

We agree that Greene was denied due process when he was jailed without notice and an opportunity to explain why he had never satisfied the conditional orders allowing him to purge himself of contempt. Greene's situation is similar to that of the criminal defendant in Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). There, Bearden was charged with two felonies. After he pled guilty to both charges, the trial court deferred proceedings and placed him on probation. As a condition of probation, Bearden was ordered to pay a fine and make restitution. Partial payment was required on the day of sentencing and the following day, with the balance due in the next four months. Although Bearden was able to borrow the money to make the initial payments, he ultimately was laid off from his job and unable to make the additional payments. Id. at ----, 103 S.Ct. at 2067, 76 L.Ed.2d at 226. Notified of his inability to pay, the trial court, after an evidentiary hearing, revoked his probation and sentenced him to prison for the remaining period of his initial probation. Id. at ----, 103 S.Ct. 2067-68, 76 L.Ed.2d at 226-27. The Supreme Court reversed and remanded for further proceedings. It reasoned that the initial decision to place Bearden on probation reflected a determination that the State's penological interest did not require imprisonment. Thus, the State thereafter could not imprison Bearden solely because he lacked the resources to pay the fine and restitution. Id. at ----, 103 S.Ct. at 2070-71, 76 L.Ed.2d at 230. Specifically, the court held that before Georgia can imprison Bearden for his failure to pay, it must determine either that he did not make a bona fide effort to pay or, if he did, that alternative methods of punishment would not adequately meet the State's penalogical interests. Id. at ----, 103 S.Ct. at 2074, 76 L.Ed.2d at 234. In so ruling, the court indicated that the reasons for nonpayment are of critical importance. It stated:

If the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection. Similarly, a probationer's failure to make sufficient bona fide efforts to seek employment or borrow money in order to pay the fine or restitution may reflect an insufficient concern for paying the debt he owes to society for his crimes. In such a situation, the State is likewise justified in revoking probation and using imprisonment as an appropriate penalty for the offense. But if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available.

Id. at ----, 103 S.Ct. at 2070-71, 76 L.Ed.2d at 233 (citations omitted).

We believe the legal procedures invoked and the factual circumstances presented here are analogous to those presented in Bearden. We have recognized that the jail sentence imposed for willful nonpayment of child support under Iowa Code section 598.23 makes this contempt procedure criminal in nature. McNabb v. Osmundson, 315 N.W.2d 9, 11 (Iowa 1982); Lutz v. Darbyshire, 297 N.W.2d 349, 353-54 (Iowa 1980). In 1977, the trial court determined that the interests of the State would be better served if confinement was deferred and Greene was required to make certain specified payments. Although there have been subsequent orders, no subsequent hearings have been held to determine whether reasonable efforts were made to pay the required amount. While Bearden was based on the fundamental fairness required by the Fourteenth Amendment, Greene's case is stronger since he was not given an opportunity for notice and hearing before imprisonment.

We believe notice and hearing in these circumstances is vital. Greene should have been given the opportunity to show either that the prescribed conditions had been fulfilled or that he had made a bona fide effort to pay but through no fault of his own was unable to comply with the conditional orders. In cases of a bona fide effort, the district court also must consider alternative procedures or dispositions other than imprisonment. For instance, the court could have extended the time for making the payments or considered the alternatives provided by Iowa Code section 598.23. Consequently, we hold that whenever the district court withholds commitment on an adjudication of contempt subject to certain conditions, due process requires notice and hearing before commitment can be ordered for failure to comply with these conditions. This holding in no way affects the district court's power to immediately confine an individual upon an adjudication of contempt for failure to make child support payments. We further hold that where commitment is withheld in contempt proceedings under section 598.23, a subsequent issue of commitment is not proper absent findings that the offending person is responsible for his failure to comply or that alternative procedures or dispositions are inadequate to meet the court's interest in punishment and deterrence.

II. Contempt sentence after child support arrearages assigned to the State. Greene next argues that the great weight of authority forbids punishment for contempt after child support payments stop accruing. He further claims that while unpaid arrearages assigned to the State may be...