Maddux v. Maddux

• Decision Date: 11 October 1991
• Docket Number: No. 89-403,89-403
• Citation: 475 N.W.2d 524,239 Neb. 239
• Parties: Tanya C. MADDUX, Appellee and Cross-Appellant, v. Thomas C. MADDUX, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 524

475 N.W.2d 524

239 Neb. 239

Tanya C. MADDUX, Appellee and Cross-Appellant, v. Thomas C. MADDUX, Appellant and Cross-Appellee.

No. 89-403.

Supreme Court of Nebraska.

Oct. 11, 1991.

Syllabus by the Court

1. Appeal and Error. The Supreme Court always reserves the right to correct error unassigned or uncomplained of but which is plainly evident from the record and prejudicially affects a litigant's substantial right, and which if left uncorrected would result in a miscarriage of justice or damage the integrity, reputation, and fairness of the judicial process, regardless of whether the error was raised at trial or on appeal.

2. Contempt. This court has made a distinction between civil, or coercive, and punitive contempt sanctions. When a coercive sanction is imposed, the contemner holds the keys to his jail cell, in that the sentence is conditioned upon his continued noncompliance. A punitive sanction is akin to a criminal sentence, in that it is not subject to mitigation should the contemner comply with the court order.

3. Contempt: Collateral Attack: Appeal and Error. In contempt cases punitive sanctions are reviewable by appeal, whereas coercive sanctions can only be attacked collaterally by habeas corpus.

4. Contempt. A criminal or punitive sanction is invalid if imposed in a proceeding that is instituted and tried as a civil contempt.

5. Contempt. In contempt proceedings, an unconditional penalty is criminal in nature because it is solely and exclusively punitive in character.

6. Contempt: Judgments: Child Support. A punitive contempt sanction imposed by a trial court in a child support 7. Judgments: Final Orders. A conditional judgment is, as a general rule, wholly void because the judgment does not perform in praesenti and the final effect is left to speculation and conjecture.

case must be set aside when the commitment to jail is to take effect in futuro, because such a commitment is a conditional judgment.

8. Contempt: Child Support. When a commitment to jail is utilized as a coercive sanction in a civil contempt proceeding involving willful and contumacious failure to pay child support, a court may sentence the contemner to jail for a specified period, provided the court order permits the contemner to purge himself or herself of contempt and be released from jail upon payment of a reasonable amount of money toward the back child support.

9. Contempt: Proof. To be reasonable, the amount of money required to be paid for a contemner to purge himself or herself of contempt of court must be within the contemner's ability to pay. In that regard, the trial court may take into consideration not only the assets and financial condition of the contemner and the contemner's ability to raise money, but also the contemner's ability to earn money through a work release program while the contemner serves the coercive sanction in jail. If a contemner complains that he or she does not have the ability to comply with the purge order, the burden is upon the contemner to prove that inability.

10. Modification of Decree: Child Support. The general rule in Nebraska has been to allow a modification of a child support order prospectively from the time of the modification order itself.

11. Modification of Decree: Child Support. When a divorce decree provides for the payment of stipulated sums monthly for the support of a minor child or children, contingent only upon a subsequent order of the court, such payments become vested in the payee as they accrue. Generally, the courts are without authority to reduce the amounts of such accrued payments.

12. Modification of Decree: Child Support. Depending upon the equities involved, retroactive modification of a child support order to the filing date of the application for modification may be ordered.

13. Divorce: Equity. In Nebraska, dissolution of marriage cases are equitable in nature.

Philip P. Lyons, of Colfer, Lyons, Wood, Malcom & Goodwin, McCook, for appellant.

Michelle J. Oldham, of Mousel Law Firm, P.C., McCook, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

FAHRNBRUCH, Justice.

Thomas C. Maddux appeals a civil contempt holding wherein the district court for Red Willow County found him in contempt of court for failure to pay child support as ordered.

In its order of February 16, 1989, the trial court found that Maddux "has remained in continued contempt of this Court, that unless he pays the amounts due he is sentenced to thirty (30) days in jail commencing April 1, 1989."

We find that the trial court committed plain error when it imposed a punitive sanction rather than a coercive sanction as required in a civil contempt proceeding. We therefore vacate the trial court's punitive sanction and remand the contempt proceeding with direction to the trial court to impose a coercive sanction.

Maddux's ex-wife, Tanya, has cross-appealed the trial court's retroactive reduction in child support Maddux was ordered to pay. We also reverse the trial court on this issue.

THE CONTEMPT PROCEEDINGS

The Supreme Court always reserves the right to correct error unassigned or uncomplained of but which is plainly evident from the record and prejudicially affects a litigant's substantial right, and which if left uncorrected would result in a The contempt proceeding in this case was instituted by Maddux's ex-wife and was tried as civil, not criminal, contempt. See State ex rel. Collins v. Beister, 227 Neb. 829, 420 N.W.2d 309 (1988). This court has made a distinction between civil, or coercive, and punitive sanctions. See, e.g., McFarland v. State, 165 Neb. 487, 86 N.W.2d 182 (1957); In re Contempt of Liles, 216 Neb. 531, 344 N.W.2d 626 (1984). When a coercive sanction is imposed, "the contemner holds the keys to his jail cell, in that the sentence is conditioned upon his continued noncompliance." Id. at 534, 344 N.W.2d at 628. A punitive sanction is akin to a criminal sentence, in that it is not subject to mitigation should the contemner comply with the court order. Such a sanction is a final order and is reviewable on appeal. "The coercive sanction, on the other hand, is always subject to modification by the contemner's conduct; that sanction is not final in any sense. Therefore, punitive sanctions are reviewable by appeal; whereas coercive sanctions can only be attacked collaterally by habeas corpus." Id. at 534, 344 N.W.2d at 629.

miscarriage of justice or damage the integrity, reputation, and fairness of the judicial process, regardless of whether the error was raised at trial or on appeal. State v. Nowicki, 239 Neb. 130, 474 N.W.2d 478 (1991). Here, it is plainly evident from the record that the trial court committed error when it improperly imposed a punitive sanction in a civil contempt proceeding.

Citing Liles, this court has dismissed, for lack of an appealable order, appeals based upon lower court findings of contempt for failure to pay child support in civil proceedings. Since the contemner in child support cases is given an opportunity to purge himself or herself of the contempt by paying what the court finds to be a reasonable amount under the circumstances toward the child support arrearages, the contemner "holds the keys to his jail cell" because the sentence is conditioned upon the contemner's continued noncompliance. See, Rol v. Rol, 218 Neb. 305, 353 N.W.2d 19 (1984); Frandsen v. Frandsen, 216 Neb. 828, 346 N.W.2d 398 (1984).

The issues here are whether Maddux did indeed "hold the keys to his jail cell" and whether the trial court's order fixed a reasonable sum of money under the circumstances for Maddux to pay toward his child support arrearage to purge himself of contempt. The order of the district court in this case provided that "unless [Maddux] pays the amounts due he is sentenced to thirty (30) days in jail commencing April 1, 1989." A criminal or punitive sanction is invalid if imposed in a proceeding that is instituted and tried as a civil contempt. See In re Contempt of Sileven, 219 Neb. 34, 361 N.W.2d 189 (1985). The order ceased to be coercive on April 1, 1989, because the jail sentence was no longer subject to mitigation. If the child support amounts due were not paid by April 1, 1989, Maddux was required to serve a punitive 30-day sentence, regardless of whether the amounts were paid subsequent to that date. Maddux no longer would be "holding the keys to his jail cell" after April 1. An unconditional penalty is criminal in nature because it is " 'solely and exclusively punitive in character.' " Hicks v. Feiock, 485 U.S. 624, 633, 108 S.Ct. 1423, 1430, 99 L.Ed.2d 721 (1988). The contempt order, as it related to the jail commitment of Maddux, as of April 1, 1989, was a punitive sanction and constituted a final order which is reviewable on appeal.

A punitive contempt sanction imposed by a trial court in a child support case must be set aside when the commitment to jail is to take effect in futuro, because such a commitment is a conditional judgment. See, Romshek v. Osantowski, 237 Neb. 426, 466 N.W.2d 482 (1991); State v. Wessels and Cheek, 232 Neb. 56, 439 N.W.2d 484 (1989); Federal Land Bank of Omaha v. Johnson, 226 Neb. 877, 415 N.W.2d 478 (1987). A conditional judgment is, as a general rule, wholly void because the judgment does not perform in praesenti and the final effect is left to speculation and conjecture. Romshek v. Osantowski, supra. Furthermore, because conditional orders are wholly void, such orders do not mature into a judgment when the conditions specified therein are When a commitment to jail is utilized as a coercive sanction in a civil contempt proceeding involving willful and contumacious failure to pay child support, a court may sentence the contemner to jail for a specified period, provided the court order permits the contemner to purge himself or herself of contempt and be released from jail upon payment of a reasonable amount of money toward the back...