Murray v. Murray

• Decision Date: 19 December 1978
• Docket Number: No. 5788,5788
• Citation: Murray v. Murray, 60 Haw. 160, 587 P.2d 1220 (Haw. 1978)
• Parties: Edmund Stiles MURRAY, Plaintiff-Appellant, v. Lorraine MURRAY, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 1220

587 P.2d 1220

60 Haw. 160

Edmund Stiles MURRAY, Plaintiff-Appellant, v.Lorraine MURRAY, Defendant-Appellee.

No. 5788.

Supreme Court of Hawai'i.

Dec. 19, 1978.

Syllabus by the Court

1.A sanction imposed for civil contempt must be capable of avoidance by compliance with the court order; such ability must exist when the sentence is imposed.

2.Refusal to perform an act which the contemnor is without ability to perform must be punished as criminal rather than civil contempt.HRS § 710-1077.

3.Failure to comply with alimony order must be punished as criminal contempt where contemnor lacks present ability to comply, notwithstanding that prior noncompliance may have been contumacious and wilful.

Helen B. Ryan, Honolulu (Ryan & Ryan, Honolulu, of counsel), for plaintiff-appellant.

Philip D. Bogetto, Honolulu, for defendant-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

KIDWELL, Justice.

This appeal is from an order of the family court finding appellant in contempt and ordering his confinement for failure to pay alimony.There was no finding that appellant was able to pay the sum required to avoid confinement.We vacate the order and remand.

By a decree of absolute divorce, appellant was ordered to pay appellee, his former wife, alimony of $300 per month.Subsequently, appellant obtained an order to show cause why the alimony order should not be modified, and thereafter appellee obtained an order to show cause why, Inter alia, appellant should not be held in contempt for failure to make the alimony payments required under the existing decree.

The orders to show cause were consolidated for purpose of hearing.The parties stipulated and the court found that, as of the date of the hearing, appellant was $9,700 in arrears in alimony payments.The family court made additional findings relating to appellant's financial situation.¹These led to the ultimate finding that appellant's default was contumacious conduct and the adjudication that appellant was in contempt of court.The contempt order fixed fifteen days in Halawa jail as punishment for the contempt, but provided that mittimus would be stayed if appellant paid $5,450 to appellee.Appellant did not comply and mittimus issued.This appeal followed and we granted appellant's motion for a stay pending appeal.

In our view of the case, whether the family court properly ordered appellant confined depends upon whether the order was for civil or criminal contempt.Since we conclude that the order punished appellant for a criminal contempt and appellant was not charged and tried as required by HRS § 710-1077, we set aside the order of confinement.

The critical question is whether appellant was ordered confined for the purpose of coercing him to pay the delinquent alimony or to punish him for his delinquency.Hawaii Public Employment Relations Board (HPERB) v. Hawaii State Teachers Association, 55 Haw. 386, 520 P.2d 422(1974);Gompers v. Buck's Stove and Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797(1911).Civil contempt is remedial whereas criminal contempt is punitive in purpose.The significant and essential characteristic of a sanction imposed for civil contempt is that the penalty can be avoided by compliance with the court order.Gompers, supra.See alsoNote, The Coercive Function of Civil Contempt, 33 U.Chi.L.Rev. 120(1965).Ability to comply must exist as a matter of substance as well as form.As was said in Maggio v. Zeitz, 333 U.S. 56, 72, 68 S.Ct. 401, 409, 92 L.Ed. 476(1948), "to jail one for a contempt for omitting an act he is powerless to perform would . . . . make the proceeding purely punitive, to describe it charitably."In that case it was held that wilful disobedience of a turnover order in a bankruptcy proceeding would not support a civil contempt sanction where the bankrupt no longer was in possession of the goods and able to comply with the order at the time he was ordered imprisoned for noncompliance.²Thus an order which is in form coercive must be read as punitive, and as punishment for a criminal contempt, if the defendant lacks the ability to avoid the penalty when the sanction is imposed.³

This rule is clearly applicable to civil contempt commitment orders which are premised on failure to pay alimony or child support.Lundregan v. Lundregan, 102 U.S.App.D.C. 259, 252 F.2d 823(1958), Truslow v. Truslow, 212 A.2d 763, 764-65(D.C.Ct. of App.1965), Spabile v. Hunt, 134 Vt. 332, 360 A.2d 51(1976), In re SLT, 180 So.2d 374(Fla.Dist.Ct. of App.1965), Noorthoek v. Superior Court of San Luis Obispo County, 269 Cal.App.2d 600, 75 Cal.Rptr. 61(1969).

"The rule is equally well established that the original underlying order for payment of support and the commitment order itself for failure to comply must rest upon the indispensable finding that, at the dates of issuance of these orders, the husband had failed or refused to maintain his wife and minor children Although able to do so."Truslow v. Truslow, supra at 764-65.

These distinctions are incorporated into HRS § 710-1077, which defines criminal contempt of court as including intentional disobedience of any mandate of a court and which provides in part as follows:

"(6) Nothing in this section shall be construed to alter the court's power to punish civil contempt.When the contempt consists of the refusal to perform an act which the contemnor has the power to perform, he may be imprisoned until he has performed it. . . ."

It was pointed out in Shillitani v. United States, 384 U.S. 364, 371, 86 S.Ct. 1531, 16 L.Ed.2d 622(1966), that it is the conditional nature of the imprisonment which justifies the omission in civil contempt proceedings of the constitutional safeguards applicable to criminal proceedings, and that such justification depends upon the ability of the contemnor to comply with the court's order.We do not reach the constitutional question in view of the clear mandate, which we read in HRS § 710-1077, that refusal to perform an act which the contemnor is without ability to perform must be punished as criminal rather than civil contempt.⁴

We recognize that, in many jurisdictions, financial inability to comply with an alimony or support order has not been recognized as a defense against imposition of civil contempt sanctions where the court saw an earlier willful and contumacious refusal to comply with the order.The rationale of this departure from the principle enunciated in Maggio is not clearly expressed.See, E. g., Hembree v. Hembree, 208 Ky. 658, 271 S.W. 1100(1925), Bradshaw v. Bradshaw, 23 Tenn.App. 359, 133 S.W.2d 617(1939), Orr v. Orr, 141 Fla. 112, 192 So. 466(1939), reiteration In dicta, Faircloth v. Faircloth, 339 So.2d 650(Fla.1976), Stanhope v. Pratt (dicta)533 S.W.2d 567(Mo.Sup. En banc ), In re the Marriage of Vanet, 544 S.W.2d 236(Mo.App.1976), Nelson v. Nelson, 225 Or. 257, 357 P.2d 536(1960), Sorrell v. Superior Court, 248 Cal.App.2d 157, 56 Cal.Rptr. 222(1967), Spabile v. Hunt, 134 Vt. 332, 360 A.2d 51(Sup.Ct. of Vt.1976), Fambrough v. Cannon, 221 Ga. 289, 144 S.E.2d 335(1965).This court has indicated its concurrence in the view that present inability is a good defense only where contumacious noncompliance was not present, but this was well before the enactment of HRS § 710-1077.Tugaeff v. Tugaeff, 42 Haw. 455(1958);Chong v. Chong, 35 Haw. 69(1939), 35 Haw. 541(1940);Ando v. Ando, 30 Haw. 80(1927).

In determining whether an alleged contemnor was properly imprisoned for civil contempt, the focus of inquiry is more accurately described in Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616(1977).

"(T)he crucial question is not whether he willfully and contemptuously violated the original orders, but whether he had the present ability to comply with the conditions set by the court for purging himself of his contempt."368 A.2d at 620.

In Barrett, the Pennsylvania Supreme Court went on to hold that where the court in civil proceedings finds there has been willful noncompliance with its earlier support orders but the contemnor presents evidence of his present inability to comply and make up the arrears, the court in imposing coercive imprisonment should set conditions for purging the contempt and effecting the release from imprisonment with which it is convinced, from the totality of evidence before it, the contemnor has the present ability to comply.⁵

We interpret the order of the family court as providing for appellant's release from confinement upon his payment at any time of the sum of $5450.The family court made no finding of appellant's financial ability to pay this sum.It stated only that "the court finds the plaintiff's being in arrears in alimony payments ordered by the Court is contumacious conduct and adjudges the plaintiff in contempt of court"⁶ and at the time that the fifteen day imprisonment was imposed simply that app...