Jessen v. Jessen

Decision Date29 July 1997
Docket NumberNo. A-96-1997,A-96-1997
Citation5 Neb.App. 914,567 N.W.2d 612
PartiesKathryn Joan JESSEN, Appellee, v. Terry Lynn JESSEN, Appellant.
CourtNebraska Court of Appeals

Syllabus by the Court

1. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken.

2. Jurisdiction: Final Orders: Appeal and Error. In the absence of a final order from which an appeal may be taken, the appeal must be dismissed for lack of jurisdiction.

3. Contempt: Final Orders: Appeal and Error. A contempt order imposing a civil, or coercive, sanction is not a final, appealable order.

4. Contempt: Appeal and Error. A contempt order imposing a punitive sanction is reviewable by appeal.

5. Contempt. The character, nature, or purpose of a contempt proceeding is determined by the procedure used in a trial to determine whether there is contempt and the sanction imposed.

6. Contempt. A civil contempt order has the purpose of compelling one party to act for the benefit of another.

7. Contempt. A civil contempt order puts the contemnor in a position to mitigate the sentence by complying with the court's order.

8. Criminal Law: Contempt. A criminal contempt order has the purpose of punishing a contemnor's past conduct in order to preserve the power and dignity of the court.

9. Criminal Law: Contempt: Final Orders. A criminal contempt order is not subject to modification.

10. Contempt. A punitive sanction imposed in a civil contempt proceeding is invalid.

11. Contempt. A fine is an appropriate sanction in a civil contempt proceeding so long as the contemnor may avoid the fine by complying with the court's order.

12. Contempt. Fixed fines may be proper coercive, civil sanctions when imposed and suspended pending future compliance with the court's order.

13. Divorce: Accounting. An accounting is not the sole remedy available for a violation of an order entered pursuant to Neb.Rev.Stat. § 42-357 (Reissue 1993).

14. Appeal and Error. Cases are heard in the state appellate courts on the theory upon which they were tried.

James L. Zimmerman and Kristen D. Mickey, of Sorensen & Zimmerman, P.C., Scottsbluff, for appellant.

Jeffrey L. Hansen, of Simmons, Olsen, Ediger, Selzer, Ferguson & Carney, P.C., Scottsbluff, for appellee.

SIEVERS, MUES, and INBODY, JJ.

MUES, Judge.

INTRODUCTION

Terry Lynn Jessen appeals from an order of the district court finding him in contempt of a hypothecation order and ordering him to pay a fine of $25,000 by February 28, 1996, but also providing that Terry may purge himself of said fine by returning $235,911.04 to the marital estate before this same date. Because we find that this is a civil contempt proceeding, the order presented for our review is not a final, appealable order and we must dismiss the appeal for lack of jurisdiction.

STATEMENT OF CASE

In a divorce proceeding between Terry and Kathryn Joan Jessen, an order was entered on June 27, 1994, providing: " 'Both parties shall be mutually restrained from transferring, encumbering, concealing, hypothecating, or in any [way] disposing of any property contrary to § 42-857[sic] R.R.S.1943.' " On October 23, 1995, Kathryn filed a motion for citation in which she asserted that Terry was in violation of this order. An order to show cause was entered, and a hearing was held on December 8.

Several exhibits were introduced, and Terry testified at this hearing. Terry's answers and supplemental answers to interrogatories established that the balance of several accounts, including pension accounts, stock ownership accounts, and brokerage accounts, had decreased substantially since entry of the June 1994 order. Also admitted at this trial were relevant portions of Terry's deposition taken in October 1995, in which Terry stated that the money from these accounts had been spent gambling. Terry first estimated that he had lost in excess of $100,000 by gambling and later stated that his gambling losses were in the neighborhood of $200,000. Terry, however, adduced evidence at the hearing that $235,911.04 had been spent by him in part as follows: monthly living expenses from April through December 1995, child support, attorney fees, real estate taxes, and repayment of a $90,000 loan taken in December 1994 to a corporation belonging to Terry's father. Terry further testified that he had lost only approximately $45,000 gambling.

By order dated December 15, 1995, the district court found that Terry was in willful contempt of the court's June 1994 order and that Terry had expended $235,911.04 in violation thereof. The order provided that "[t]he respondent [Terry] is ORDERED to pay a fine of $25,000.00 herein by the date of February 28, 1996. Respondent may purge himself of said contempt by restitution of $235,911.04 back into identifiable martial [sic] property before February 28, 1996." The order further provided that such restitution was to be made from nonmarital property and required Terry to identify the source of such restitution funds. Terry timely appeals.

ASSIGNMENTS OF ERROR

Restated, Terry asserts that the district court erred in (1) finding him in willful contempt of the hypothecation order and (2) imposing a punitive sanction in a civil contempt proceeding.

STANDARD OF REVIEW

For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken. State ex rel. Fick v. Miller, 252 Neb. 164, 560 N.W.2d 793 (1997); Richardson v. Griffiths, 251 Neb. 825, 560 N.W.2d 430 (1997). In the absence of a final order from which an appeal may be taken, the appeal must be dismissed for lack of jurisdiction. State ex rel. Keener v. Graff, 251 Neb. 571, 558 N.W.2d 538 (1997).

DISCUSSION

At the outset, we must determine whether this court has jurisdiction to decide this appeal. There are two types of contempt proceedings, civil and criminal. Whereas the former give rise to coercive sanctions, the latter give rise to punitive sanctions. An order imposing civil, or coercive, sanctions is not a final, appealable order. Maddux v. Maddux, 239 Neb. 239, 475 N.W.2d 524 (1991); In re Contempt of Liles, 216 Neb. 531, 344 N.W.2d 626 (1984). In the absence of a final order from which an appeal may be taken, the appeal must be dismissed for lack of jurisdiction. Graff, supra. On the other hand, punitive sanctions are reviewable by appeal. Maddux, supra; In re Contempt of Liles, supra. Thus, in order to determine whether this court has jurisdiction, we must determine the character of this contempt proceeding.

The character, nature, or purpose of a contempt proceeding is determined by the procedure used in a trial to determine whether there is contempt and the sanction imposed. State ex rel. Reitz v. Ringer, 244 Neb. 976, 510 N.W.2d 294 (1994); Dunning v. Tallman, 244 Neb. 1, 504 N.W.2d 85 (1993). Although the district court characterized this proceeding as "criminal," the district court's characterization in this regard is not determinative. See, e.g., Dunning, supra.

Some general distinctions between civil and criminal contempt are necessary. A civil contempt order has the purpose of compelling one party to act for the benefit of another. State ex rel. Collins v. Beister, 227 Neb. 829, 420 N.W.2d 309 (1988); In re Contempt of Liles, supra. Such an order puts the contemnor in a position to mitigate the sentence by complying with the court's order. Id. In contrast, a criminal contempt order has the purpose of punishing a contemnor's past conduct in order to preserve the power and dignity of the court. Id. It is not subject to modification. Id. As stated in In re Contempt of Liles, 216 Neb. at 534, 344 N.W.2d at 628-29:

In the coercive sanction ... the contemner holds the keys to his jail cell, in that the sentence is conditioned upon his continued noncompliance. The punitive sanction is much like the sentence in a criminal case, in that it is absolute and not subject to mitigation if the contemner alters his future conduct toward the court.... The coercive sanction, on the other hand, is always subject to modification by the contemner's conduct....

Despite the district court's characterization of these proceedings as "criminal," both parties contend that this case was brought and tried as a civil contempt proceeding, and we agree.

This action was instituted by Kathryn and filed as a part of the underlying civil action. It is evident that the primary purpose of the court's order was to benefit Kathryn by requiring Terry to return property to the marital estate equivalent to the amount which the court determined that Terry had removed in violation of the court's June 1994 order. " 'Where a party to an action fails to obey an order of the court, made for the benefit of the opposing party, the rule is well recognized that such act is, ordinarily, a mere civil contempt....' " McFarland v. State, 165 Neb. 487, 491-92, 86 N.W.2d 182, 185 (1957). Although this action was brought and tried as a civil contempt action, the nature of the sanction imposed requires additional discussion.

Kathryn maintains that the $25,000 fine, as imposed, is a coercive sanction because Terry could avoid the fine by meeting the conditions set by the court. Thus, according to Kathryn, this is not a final order and this court lacks jurisdiction to decide this appeal. On the other hand, Terry argues that after February 28, 1996, the fine became punitive, as it was no longer subject to modification after said date. Terry correctly points out that a punitive sanction imposed in a civil contempt proceeding is invalid. See, e.g., In re Contempt of Sileven, 219 Neb. 34, 361 N.W.2d 189 (1985). This is so because " 'criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings.' " United Mine Workers v. Bagwell, 512 U.S. 821, 826, 114...

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