McCarron v. McCarron, 2130912.

• Decision Date: 09 January 2015
• Docket Number: 2130912.
• Court: Alabama Court of Civil Appeals
• Parties: Joseph Edward McCARRON III v. Jerry Ann MCCARRON.

171 So.3d 22

Joseph Edward McCARRON III

v.Jerry Ann MCCARRON.

2130912.

Court of Civil Appeals of Alabama.

Jan. 9, 2015.

James E. Robertson, Jr., of Stewart Howard, P.C., Mobile, for appellant.

W. Lee Webb and Kenneth R. Raines of Raines Law Firm, Fairhope, for appellee.

Opinion

MOORE, Judge.

Joseph Edward McCarron III (“the former husband”) appeals from a judgment finding him in contempt of court for his failure to pay periodic alimony to Jerry Ann McCarron (“the former wife”) and his failure to pay certain monetary property-settlement amounts imposed on him by the parties' divorce judgment. We reverse.

Background

This is the second time these parties have been before this court. See McCarron v. McCarron, 168 So.3d 68, 75 (Ala.Civ.App.2014). The Baldwin Circuit Court (“the trial court”) entered a judgment divorcing the parties on November 25, 2013, which it amended on February 6, 2014. The former husband appealed that judgment, and, on appeal, this court determined that the former husband did not have the ability to pay the monetary amounts awarded in the property settlement in the time and in the manner ordered. We instructed the trial court to clarify its determination of the former husband's net monthly income, and we “reverse[d] that portion of the judgment awarding the [former] wife $10,000 per month in periodic alimony so that the trial court [could] reconsider its award in light of any modification of the judgment it makes to enable the [former] husband to pay the property settlement.” 168 So.3d at 75.

Meanwhile, on February 14, 2014, the former wife filed a petition for a rule nisi, alleging that the former husband had failed to pay the monthly periodic alimony awarded to her and had failed to pay all the monetary property-settlement amounts he was ordered to pay in the divorce judgment. The former husband answered the petition on April 25, 2014, amended his answer on that same date, and amended his answer again on April 29, 2014. After conducting a hearing on the petition, at which it received testimony from the former husband, the former wife, the former husband's brother, who was the former husband's business partner, the former husband's banker, and the former husband's real-estate broker, the trial court entered an order on July 31, 2014, stating:

“This matter having come before this Court on a Petition for Rule Nisi filed by the [former wife] and the Court having taken testimony and reviewed evidence; it is hereby

“ORDERED that the [former husband] is in contempt of this Court for willful failure to comply with the Final Decree as previously ordered. Although the case is on appeal, [the former husband] has not filed a supersedeas bond, therefore, the decree is in force and effect.

“In order to purge himself from contempt, the [former husband] shall do 2 things:

“1. Within 60 days, present to the Court a plan for complying with the outstanding obligations as the property division as set out in the Final Decree. Once the Court receives the [former husband's] proposal, the Court will enter a Final Order as to the Rule Nisi/Contempt action.

“2. In order to immediately stay any contempt order, the [former husband] shall immediately begin paying the $10,000.00 monthly alimony obligation beginning August 1, 2014. So long as [the former husband] complies with this obligation, the contempt shall be stayed until the Court determines if the [former husband's] plan is sufficient to purge the [former husband] from this Contempt finding.

“Attorneys have 30 days to submit to the Court a determination of the alimony arrearage amount.”

A week later, on August 6, 2014, the trial court entered an order stating:

“[The former husband] having been previously found in contempt for willful refusal to comply with the order of the Court and having failed to purge himself of the contempt. The Court ORDERS

“that a warrant for his arrest be issued and that he be held in the Baldwin County jail until further order of this Court. Upon arrest, [the former husband] may post a cash bond in the amount of $6500.00.”

On August 7, 2014, the former husband filed his notice of appeal.

Discussion

Initially, we note that the former wife has argued that the contempt judgment appealed from is not a final appealable judgment. First, we agree with the former wife that the former husband's appeal arises out the July 31, 2014, order. The former husband argues that the trial court erred in finding him in contempt despite his asserted inability to pay the moneys awarded to the former wife in the divorce judgment. The trial court made its contempt finding, and rejected the former husband's defense of inability to pay, in the July 31, 2014, order. In its August 6, 2014, order, the trial court only executed on the July 31, 2014, order upon finding that the former husband had not immediately paid the former wife the periodic alimony he owed. Thus, the appeal relates solely to the matters adjudicated in the July 31, 2014, order.

Second, we conclude that the July 31, 2014, order is sufficiently final to support an appeal. Rule 70A(g), Ala. R. Civ. P., allows for review of civil-contempt adjudications by appeal. An “adjudication” is defined as “[t]he legal process of resolving a dispute; the process of judicially deciding a case.” Black's Law Dictionary 50 (10th ed. 2014). We have not located any Alabama caselaw explicitly discussing the conditions under which a civil-contempt order may be considered final for the purposes of appeal under Rule 70A(g).

In The Docks Venture, L.L.C. v. Dashing Pacific Group, Ltd., 141 Ohio St.3d 107, 22 N.E.3d 1035 (2014), the Ohio Supreme Court set out an excellent discussion on the topic:

“The contempt sanctions imposed in this case are civil in nature, because the trial court conditioned imposition of the fine on the failure to purge the contempt. Our research reveals that there is a split of authority regarding whether a civil contempt order is a final order for purposes of appellate review.

“Federal courts view civil contempt orders as interlocutory and hold ‘except in connection with an appeal from a final judgment or decree, a party to a suit may not review upon appeal an order fining or imprisoning him for the commission of a civil contempt.’ Fox v. Capital Co., 299 U.S. 105, 107, 57 S.Ct. 57, 81 L.Ed. 67 (1936) ; see also Cent. States, Southeast & Southwest Areas Health & Welfare Fund v. Lewis, 745 F.3d 283, 285 (7th Cir.2014) ; United States v. Myers, 593 F.3d 338, 344 (4th Cir.2010) ; United States v. Conces, 507 F.3d 1028, 1037 (6th Cir.2007), fn. 7. Even if the underlying action has proceeded to a final judgment, an adjudication of civil contempt is not appealable when the contemnor retains the opportunity to purge. Sec. & Exchange Comm. v. Hickey, 322 F.3d 1123, 1127–1128 (9th Cir.2003).

“Some states follow this federal view that a civil contempt order is not immediately appealable, although some permit review through extraordinary writ actions. See, e.g., In re Moroun, 295 Mich.App. 312, 329, 814 N.W.2d 319 (2012) ; In re Marriage of Crow & Gilmore, 103 S.W.3d 778, 780–781 (Mo.2003) ; Von Hake [v. Thomas ], 759 P.2d [1162] at 1167 [ (Utah 1988) ]; Fitch v. Fitch, 298 Minn. 529, 530, 213 N.W.2d 925 (1974) ; Wagner v. Warnasch, 156 Tex. 334, 339, 295 S.W.2d 890 (1956) ; Brinkley v. Brinkley, 47 N.Y. 40, 46–47 (1871) ; see also State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998) (permitting review only by way of a petition for writ of certiorari); Berry v. Maricopa Cty. Superior Court, 163 Ariz. 507, 508, 788 P.2d 1258 (App.1989), citing In re Wright, 36 Ariz. 8, 281 P. 944 (1929) ( ‘Review of a contempt citation is ... only possible by special action’).... The rationale, as the Supreme Court of Minnesota explained in Semrow v. Semrow, 26 Minn. 9, 10, 46 N.W. 446 (1879), is that if there is an opportunity to purge, the contempt order is conditional; punishment cannot be inflicted without proof that the contemnor failed to comply, and even then the court might not order the sanction into execution.

“Other jurisdictions, however, hold that a civil contempt order is a final appealable order, even if the court conditions the sanction on the failure to purge. See, e.g., McCoy v. McCoy, 55 Va.App. 524, 528, 687 S.E.2d 82 (2010), fn. 2; Anderson Dundee 53, L.L.C. v. Terzakis, 363 Ill.App.3d 145, 154–155, 298 Ill.Dec. 863, 841 N.E.2d 6 (2005) ; Bryant v. Howard Cty. Dept. of Social Servs. ex rel. Costley, 387 Md. 30, 45, 874 A.2d 457 (2005) ; Rhoades v. Pryce, 2005 PA Super 162, 874 A.2d 148, ¶ 9 ; Hamilton Capital Group, Inc. v. Equifax Credit Information Servs., Inc., 266 Ga.App. 1, 2–3, 596 S.E.2d 656 (2004) ; Hooper v. Rockwell, 334 S.C. 281, 291, 513 S.E.2d 358 (1999) ; Internatl. Paper Co. v. United Paperworkers Internatl. Union, 551 A.2d 1356, 1359 (Me.1988) ; Di Nofrio v. Di Nofrio, 85 R.I. 21, 26, 125 A.2d 194 (1956) ; In re Day, 34 Wis. 638, 642 (1874). Courts recognize that once a party is found in contempt and the court chooses a sanction, all that remains is the execution of the sanction, and thus conditions allowing the contemnor to avoid the sanction do not render the order interlocutory. Rhoades at ¶ 9 ; Peet v. Peet, 16 Va.App. 323, 326, 429 S.E.2d 487 (1993).

“This is a matter of first impression for this court. In Liming v. Damos, 133 Ohio St.3d 509, 2012–Ohio–4783, 979 N.E.2d 297, we addressed whether an indigent contemnor subjected to civil contempt for failure to comply with child support obligations had a right to counsel at the purge hearing. In concluding that the contemnor had no right to counsel, we relied on the differences between a contempt hearing and a purge hearing. We explained that the question of contempt is decided at a contempt hearing, where an alleged contemnor ‘will have had the opportunity to defend against the contempt charges and otherwise object to or appeal from a finding of contempt and any purge conditions. ’ (Emphasis added.) Id. at ¶ 30[, 133 Ohio St.3d at 518, 979 N.E.2d at 306 ]. But at a purge

...