In re Allison
| Decision Date | 16 May 1995 |
| Docket Number | Bankruptcy No. 94-05244-BGC-13. |
| Parties | In re Eugene ALLISON, Debtor. |
| Court | United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Alabama |
Richard L. McClendon, for debtor.
Cheryl Wilkinson-Simonetti, Asst. Atty. Gen., Birmingham, AL, for movant.
David Rogers, Trustee.
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO LIFT STAY
This matter came before the Court for a trial on the Motion for Relief From Stay filed by the State of Alabama, Department of Human Resources, ex rel. Ginger Shew. The matter was submitted on the testimony of Ms. Shew and Mr. Allison, the exhibits admitted into evidence, the record in the case and the arguments of counsel.
The Debtor and Ms. Ginger Shew were divorced on January 28, 1987. The divorce decree requires the Debtor to pay $250.00 per month to Ms. Shew for the support and maintenance of his two minor children and to pay the children's medical expenses.1
The Debtor became delinquent in the payment of his monthly child support obligation and failed to reimburse Ms. Shew for certain medical expenses incurred by her as a result of illnesses of the children. The Debtor also became physically disabled, and according to his testimony, receives total disability payments through the Social Security Administration.2
The Debtor's defaults in his support obligations were the subject of numerous petitions for rule nisi filed by Ms. Shew in the state circuit court. On August 6, 1993, the state court ruled that the total child support arrearage owed by the Debtor, including medical expenses reimbursable to Ms. Shew, was, as of that date, $3,611.04. The state court's order required the Debtor to satisfy that arrearage from any lump sum disability award that he might receive from Social Security. At that time, the Debtor was still awaiting word from Social Security on his disability application.
The Debtor was subsequently awarded a lump sum social security disability payment of $7,500.00. According to his testimony in this case, the Debtor spent the money on living and moving expenses; to pay a sizable obligation owed to his brother in law; but did not, as was required by the order of the state court, pay any of the money to Ms. Shew in satisfaction of his child support arrearage. Because of the Debtor's failure to pay the lump sum amount, the state court held, on August 18, 1994, that the Debtor was in contempt of its previous order, and that the Debtor's unfilled obligations had been augmented by $175.07 in interest and $610.00 in medical expenses incurred by Ms. Shew since the 1993 proceeding. The order provided that the Debtor could purge himself of the contempt by paying $4,982.00 to Ms. Shew by September 2, 1994. On September 6, 1994, the Debtor filed a petition for relief under Chapter 13 of the Bankruptcy Code.
Through authority provided in Ala. Code §§ 38-10-1 through 38-10-12, the State of Alabama, Department of Human Resources, ("DHR") filed the present motion on behalf of Ms. Shew seeking relief from the automatic stay in order to continue state court proceedings against the Debtor. DHR contends that by failing to abide by the terms of the divorce decree and by failing to pay the required portion of his lump sum award to Ms. Shew, the Debtor is in "criminal contempt" of both the final judgment of divorce entered on January 28, 1987, and the August 18, 1994, state court order. DHR also contends that 11 U.S.C. § 362(b)(1) exempts an action for criminal contempt from the operation of the automatic stay.3
Section 362(b)(1) provides that the automatic stay does not operate to stay "the commencement or continuation of a criminal action or proceeding against the debtor." Contempt may be criminal or civil.
Civil contempt consists in the refusal of a person to do an act that the court has ordered him or her to do for the benefit or advantage of a party to a suit or action pending before the court. Ex parte Griffith, 278 Ala. 344, 351-352, 178 So.2d 169, 177-178 (1965), cert. denied, Griffith v. Board of Com'r of the Alabama Bar, 382 U.S. 988, 86 S.Ct. 548, 15 L.Ed.2d 475 (1966). The purpose of civil contempt is to compel compliance with a court's order, and to achieve that purpose, the court is empowered to commit the contemnor to imprisonment until he or she complies with the order. Id. Civil contempt looks only to the future and assumes a court order "which by its nature is still capable of being performed or complied with." Rule 33.1(d), A.R.Crim.P. There is no maximum statutory limit on the length of time for which a contemnor may be committed for civil contempt. If the contemnor's failure to comply with the court's order is due to inability to perform, rather than contumacy, imprisonment for civil contempt may not be imposed. Muery v. Muery, 247 So.2d 123, 127-128, 46 Ala.App. 617, 621-622 (Ala.Civ. App.1971), cert. denied, 287 Ala. 737, 247 So.2d 128 (1971). There is no provision of Section 362(b) which excepts the commencement or continuation of an action for civil contempt from the automatic stay.
Criminal contempt consists of "willful disobedience or resistance of any person to a court's lawful writ, subpoena, process, order, rule, decree, or command, where the dominant purpose of the contempt is to punish the contemnor." Rule 33.1(c)(2), A.R.Crim.P. Its purpose is to impose punishment for disobedience of an order of the court. Ex parte Griffith, 278 Ala. at 351-352, 178 So.2d at 177-178. Unlike civil contempt, criminal contempt presupposes accomplished conduct, rather than contemplated or ongoing conduct. "It is a criminal offense for which a specific punishment is meted out, over which the defendant has no control." Committee Comments to Rule 33.1, A.R.Crim.P. The penalty which may be imposed for criminal contempt is limited by Ala.Code § 12-11-30(5) which provides that: "A circuit court may punish contempts by fines not exceeding $100.00 and by imprisonment not exceeding five days." By virtue of 11 U.S.C. § 362(b)(1), the commencement or continuation of an action for criminal contempt is not stayed by the filing of a petition in bankruptcy. In re Kearns, 168 B.R. 423, 426 (D.Kan.1994); In re Roussin, 97 B.R. 130, 132 (D.N.H.1989); In re Anoai, 61 B.R. 918, 921 (Bankr.D.Conn.1986); Dept. of Human Resources v. Chambers, 211 Ga.App. 763, 441 S.E.2d 77, 80 (1994).
Under Alabama case law, the Debtor's failure to pay the required portion of the lump sum disability payment to Ms. Shew may have constituted criminal contempt because the Debtor's actions may have been a contemporaneous violation of the state court's August 18, 1994 order.4 This, of course differs from a simple failure to pay his child support. A state court may find that even if the Debtor does not have the ability to comply with the state court's order now, that the Debtor had the ability to comply with the order at the time he received the money, and as a result of his failure to pay, that he disobeyed the court's order and may be punished for it now, within the limitations supplied by Ala.Code § 12-11-30(5).5
Criminal contempt, as a rule, cannot be purged by the payment of a money obligation to the opposing party, but may only be satisfied by the contemnor serving the sentence imposed. Hardy v. Hardy, 240 So.2d 598, 601, 46 Ala.App. 249, 252 (Ala.Civ. App.1970). The Debtor's testimony in this proceeding is that he spent the lump sum money received from Social Security, and is unable to comply with the state court order; a fact that would ordinarily preclude him from being subject to punishment for civil contempt, but not from prosecution for criminal contempt.
This Court should not speculate as to the state court's intentions, but should instead allow the state court to interpret its own order. If, upon continuation of the state court proceeding, the state court determines that the Debtor's pre-petition actions, consisting of his failure to pay the required portion of the lump sum disability payment to Ms. Shew at the time he received the payment, constituted civil contempt, the state court is of course precluded by the automatic stay from imposing on the Debtor a sentence that would require him to remain in confinement until his contempt is purged by the performance of an obligation to Ms. Shew. The Debtor is performing his obligation in a manner allowed by the Bankruptcy Code. He has proposed to pay the pre-petition debt through his bankruptcy plan.6 However, if, upon continuation of the state court proceeding, the state court determines that the Debtor's same pre-petition actions constituted criminal contempt, the state court is not precluded by the automatic stay from imposing on the Debtor a sentence which would require him to be incarcerated for a period not to exceed five (5) days and/or the payment of a fine not to exceed $100.00. The state court may punish the Debtor for failure to comply with its order, subject to the statutory limitations specified in Ala.Code § 12-11-30(5).
Based on the above, it is ORDERED that:
1. To the extent that the Department of Human Resources's request for relief from the automatic stay concerns the prosecution of the Debtor for criminal contempt, the Bankruptcy Code allows the Department to proceed against the Debtor in state court without the permission of this Court; however, to the extent required by the Bankruptcy Code, the Department's Motion for Relief from Stay is GRANTED as to the continuation of its criminal prosecution against the Debtor; and,
2. To the extent that the Department of Human Resources's request for relief from the automatic stay concerns the prosecution of the Debtor for civil contempt because of the Debtor's failure to pay support obligations which arose prior to the filing of the petition in this...
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