S.T.W. v. T.N., 2120521.

• Decision Date: 13 September 2013
• Docket Number: 2120521.
• Citation: 141 So.3d 1083
• Parties: S.T.W. v. T.N.
• Court: Alabama Court of Civil Appeals

141 So.3d 1083

S.T.W.

v.T.N.

2120521.

Court of Civil Appeals of Alabama.

Sept. 13, 2013.

Page A. Banks, Huntsville, for appellant.

Submitted on appellant's brief only.

THOMPSON, Presiding Judge.

In April 2011, the Madison County Department of Human Resources (“DHR”) filed a petition seeking to have S.W. (“the child”), who was then six years old, declared dependent. DHR alleged that the child's stepfather had abused the child and that the stepfather had stated that the child's mother, T.N. (“the mother”), was aware of the abuse. On April 18, 2011, the juvenile court entered an order finding the child to be dependent and awarding custody of the child to DHR. On August 5, 2011, the juvenile court entered an order adjudicating S.T.W.'s paternity of the child and continuing custody of the child with DHR.

In a February 22, 2012, order, the juvenile court continued its award of legal custody of the child with DHR, but it awarded physical custody to S.T.W. (“the father”). A few months later, on May 24, 2012, the juvenile court awarded the mother and the father joint legal and physical custody of the child, with the father receiving primaryphysical custody. That order also specified, among other things, that the mother and the father each were to submit a Rule 32, Ala. R. Jud. Admin., CS–41 child-support-obligation income statement/affidavit (“CS–41 form”) for the purposes of calculating child support. In July 2012, the mother submitted a CS–41 form to the juvenile court.

On August 17, 2012, the juvenile court entered an order awarding the mother and the father joint legal custody of the child, but awarding primary physical custody to the mother. The juvenile court reserved the issue of child support and ordered the parties to submit CS–41 forms within seven days of the entry of that order. On August 21, 2012, the mother submitted another CS–41 form.

On January 28, 2013, the mother filed a “motion to compel,” seeking an order requiring the father to submit a CS–41 form and seeking the establishment of the father's child-support obligation and an award of retroactive child support. In support of that motion, the mother again submitted a CS–41 form.

On February 19, 2013, the juvenile court entered an order scheduling the matter for a hearing on March 8, 2013, and ordering each party to furnish to the court and to all counsel four separate child-support forms as required by Rule 32.¹ The February 19, 2013, order specified that the parties were to submit those forms at least 10 days before the scheduled hearing.

On February 27, 2013, the father submitted a CS–41 form to the juvenile court. On March 5, the mother submitted the four requested child-support forms to the juvenile court. In that submission, the mother's attorney cited complications from his recent surgery as the reason for not timely submitting those forms. In addition, the mother's attorney stated that he had submitted several forms with only the mother's information because, the mother's attorney alleged, he did not have information from the father with which to complete the forms. At the March 8, 2013, hearing, the juvenile court noted that it had the forms submitted by the mother but that it could not rely on the CS–41 form she had submitted because it was not sworn. The juvenile court then stated that it had received the father's sworn CS–41 form but that the father had not submitted the other three forms referenced in the February 19, 2013, order. The juvenile court also noted that it had entered an order in August 2012 requiring the father to submit a CS–41 form but that the father had failed to comply with that order. The following exchange then occurred:

“THE COURT: At this point, [counsel for the father], I will let you present to the Court any argument that you have as to why the father should not be held in contempt of court.

“[COUNSEL FOR THE FATHER]: I—may I have a moment?

“THE COURT: Sure.

“[COUNSEL FOR THE FATHER]: Judge, my client states that he says he claims he did not receive a copy of the orders that were previously entered by this Court.”

The juvenile court then immediately ordered the father incarcerated. In its March 8, 2013, order finding the father in “contempt of court,” the juvenile court ordered the father to be incarcerated for 72 hours. That same day, the father filed a “motion to reconsider,” arguing that he was not provided notice that the contempt issue would be considered by the juvenile court, and he argued that he “was precluded” from submitting the other three child-support forms because the mother's CS–41 form was unsworn. Also on March 8, 2013, the juvenile court denied the father's postjudgment motion, and the father timely appealed. See Thomas v. Vanhorn, 876 So.2d 488, 491 (Ala.Civ.App.2003) (citing Rule 70A(g), Ala. R. Civ. P., and holding that an order finding a party in contempt is a final, separately appealable judgment).

The March 8, 2013, order does not specify whether the juvenile court found the father to be in civil contempt or criminal contempt. Rule 70A(a)(2)(C), Ala. R. Civ. P., specifies that “criminal contempt” is either:

“(i) Misconduct of any person that obstructs the administration of justice and that is committed either in the court's presence or so near thereto as to interrupt, disturb, or hinder its proceedings, or

“(ii) Willful disobedience or resistance of any person to a court's lawful writ, subpoena, process, order, rule, or command, where the dominant purpose of the finding of contempt is to punish the contemnor.”

The rule further explains that “civil contempt” is a “willful, continuing failure or refusal of any person to comply with a court's lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.” Rule 70A(a)(2)(D), Ala. R. Civ. P. A finding of civil contempt seeks to compel compliance with a court's order; a criminal-contempt determination is designed to punish a contemnor for disobedience of a court's order. State v. Thomas, 550 So.2d 1067, 1072 (Ala.1989).

“ ‘The question of whether [an action involves] civil contempt or criminal contempt becomes important ... because a contemnor must be in a position to purge himself from the contempt. Mims v. Mims, 472 So.2d 1063 (Ala.Civ.App.1985). In order to purge himself in a criminal contempt case, the contemnor must pay the fine imposed, serve the authorized time, or do both. Kalupa v. Kalupa, 527 So.2d 1313 (Ala.Civ.App.1988). In order to purge himself in a civil contempt case, the contemnor must comply with the court's order. Rule 33.4(b), A[la]. R.Crim. P.’ ” ²

Davenport v. Hood, 814 So.2d 268, 272–73 (Ala.Civ.App.2000) (quoting Hill v. Hill, 637 So.2d 1368, 1370 (Ala.Civ.App.1994)).

In this case, the juvenile court did not order the father to be incarcerated only until he complied with its orders to complete the child-support forms; in other words, the juvenile court was not seeking to obtain the father's compliance with its orders requiring him to submit information so that his child-support obligation could be determined. Rather, the juvenile court ordered the father to serve 72 hours in jail for his failure to comply with its orders. Thus, the contempt finding in the March 8, 2013, order is not one of civil contempt. Rather, the record indicates that the juvenile court's contempt finding was a punishment for the father's failure to complete the child-support forms as required by the February 19, 2013, order and perhaps for the father's failure to comply with the earlier orders requiring that he submit a CS–41 form. We, therefore, conclude that the record demonstrates that the juvenile court found the father to be in criminal contempt. See Ex parte Sheffield, 120 So.3d 1091, 1094 (Ala.Civ.App.2013).

That determination, however, does not end the inquiry regarding the nature of the contempt finding. The juvenile court's March 8, 2013, order does not specifically state whether the court found the father in direct contempt or indirect, i.e., constructive, contempt under Rule 70A. “Direct contempts are those committed in the judge's presence, where all of the essential elements of the contempt are under the eye of the court, and are actually observed by the court.” State v. Thomas, 550 So.2d at 1072. “An indirect contempt is committed outside the presence of the court and is characterized by the act of disobeying the court's orders.” Id. Recently, this court has explained:

“ ‘Such a determination is important because the procedure for finding a party in direct contempt is different from the procedure required before a party can be found guilty of constructive contempt.’ Dreading v. Dreading, 84 So.3d 935, 937 (Ala.Civ.App.2011). Rule 70A(a)(2), Ala. R. Civ. P., defines ‘direct contempt’ and ‘constructive contempt’ as follows:

“ ‘(A) “Direct contempt” means disorderly or insolent behavior or other misconduct committed in open court, in the presence of the judge, that disturbs the court's business, where all of the essential elements of the misconduct occur in the presence of the court and are actually observed by the court, and where immediate action is essential to prevent diminution of the court's dignity and authority before the public.

“ ‘(B) “Constructive contempt” means any criminal or civil contempt other than a direct contempt.’

“Rule 70A(b) and (c), Ala. R. Civ. P., provide the procedure for finding a party guilty of either direct contempt or constructive contempt:

“ ‘(b) Summary Disposition of Direct Contempt Proceedings.

“ ‘(1) Finding. The court may summarily find in contempt any person who commits a direct contempt, immediately notifying the person of its finding. The judge shall cause to be prepared a written order reciting the grounds for...