State v. Mertz

• Decision Date: 30 March 1994
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Lonnie MERTZ, Defendant and Appellant. o. 930210.
• Court: North Dakota Supreme Court

Page 662

514 N.W.2d 662

STATE of North Dakota, Plaintiff and Appellee, v. Lonnie MERTZ, Defendant and Appellant.

Cr. No. 930210.

Supreme Court of North Dakota.

March 30, 1994.

Richard J. Riha, Asst. State's Atty., Bismarck, for plaintiff and appellee.

Ralph A. Vinje, Bismarck, for defendant and appellant.

VANDE WALLE, Chief Justice.

Lonnie Mertz appealed from a judgment entered on a jury verdict finding him guilty of class C felony abandonment or nonsupport of a child in violation of Sec. 14-07-15, N.D.C.C. We affirm.

Lonnie and Jessie Mertz were divorced in Burleigh County in 1981. Jessie was awarded custody of their three minor children, Marty, Kristy, and Mindy, and Mertz was ordered to pay $450 child support per month. In 1982, the court lowered the amount of child support to $300 per month. Mertz was behind in his child support payments for much of the time and the total arrearages were approximately $1,000 by summer 1988. The court increased Mertz's child support obligation to $600 per month in July 1988.

In September 1988, Mertz married his present spouse and began working with Hall Construction Company in South Dakota. In December 1988, Mertz was fired from this job. He later filed a claim against Hall Construction Company with the National Labor Relations Board, asserting that he was fired for engaging in union activities. During this period, Mertz received unemployment benefits and worked sporadically. In April 1990, Mertz obtained an interim order from a South Dakota court reducing his child support obligation to $150 per month, but the arrearages continued to accrue on the remainder of the $600 monthly obligation under the North Dakota order. See Sec. 14-12.1-31, N.D.C.C.; Coogan v. Fennell, 379 N.W.2d 791 (N.D.1985) [prior support order not nullified by subsequent URESA order unless otherwise specifically provided by the court]. According to Mertz, during the time he was unemployed he borrowed more than $50,000 from relatives and others to meet his daily living expenses, to pay child support, and to invest in a business which subsequently failed.

In the meantime, Jessie married Terry Heck. At all pertinent times during their marriage, Terry has helped support Mertz's children. The children also received medical assistance benefits for a period of time. In November 1991, Mertz was granted custody of Marty through a North Dakota court order and his monthly child support obligation was reduced to $450. In an affidavit filed with the court, Mertz stated that he would apply the proceeds he expected to receive from a settlement agreement reached with Hall Construction Company in the National Labor Relations Board action to his child support arrearages.

In 1992, Mertz received a settlement from Hall Construction Company in the principal amount of $61,000. By May 1, 1992, Mertz's child support arrearages totaled $22,736.12. In May 1992, Mertz received checks totaling $27,705.05 from Hall Construction Company. Learning of these disbursements, Jessie obtained an order to show cause why Mertz should not be held in contempt of court for failing to pay his child support arrearages. The court ordered Mertz to deposit the checks from Hall Construction Company with the court before the hearing date.

Although Mertz had been served with the order to show cause, he failed to appear at the hearing and failed to deposit the checks with the court. On May 20, 1992, the court found that Mertz "has sufficient funds to pay this back child support with the settlement with Hall Construction Company through the National Labor Relations Board action" and held him "in civil contempt of court" for his failure to apply the proceeds to the child support arrearages and for his failure to appear at the show cause hearing. The court ordered that Mertz be imprisoned for six months "or until such time as Mertz clears himself of the contempt by paying the child support arrearage, with interest, ..." A bench warrant was issued for his arrest.

In July 1992, Mertz received another check from Hall Construction Company for $24,324.25. This money also was not applied toward the child support arrearages. In September 1992, when the arrearages totaled $23,986.12, the State brought this criminal action for abandonment or nonsupport of a child under Sec. 14-07-15, N.D.C.C., asserting that the crime occurred from May through September 1992. Mertz was arrested in Wyoming. He was then incarcerated in North Dakota for six months pursuant to the contempt order. According to Mertz, he did not apply the proceeds from the settlement to pay his child support arrearages because he used the funds to repay his brothers, parents, current mother-in-law, and others who had lent him money when he was unemployed.

After serving the six month jail sentence, Mertz was tried on the criminal charge. ¹ The jury returned a guilty verdict and Mertz was sentenced to two years in the State Penitentiary with credit for the six months he had previously served for contempt of court. See Sec. 27-10-17, N.D.C.C. ² This appeal followed.

I

Mertz asserts that this criminal prosecution, following the prior adjudication and sentence for contempt of court, violates the double jeopardy clause of the fifth amendment. We disagree.

The double jeopardy clause applies to nonsummary criminal contempt proceedings in the same manner as it does to any other criminal prosecution. United States v. Dixon, --- U.S. ----, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). See also Hernandez v. State, 624 So.2d 782 (Fla.Ct.App.1993). However, because both a civil and criminal sanction may be constitutionally imposed with respect to the same act or omission, see United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984), a criminal prosecution based on the same conduct that served as the basis for a prior civil contempt proceeding does not offend double jeopardy principles. See Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957); United States v. Ryan, 810 F.2d 650 (7th Cir.1987); In re Grand Jury Proceedings, Horak, 625 F.2d 767 (8th Cir.), cert. denied, 449 U.S. 840, 101 S.Ct. 117, 66 L.Ed.2d 47 (1980); United States v. Anderson, 577 F.Supp. 223 (D.Wyo.1983), reversed on other grounds, 778 F.2d 602 (10th Cir.1985); Baggett v. State, 15 Ark.App. 113, 690 S.W.2d 362 (1985); People v. Batey, 183 Cal.App.3d 1281, 228 Cal.Rptr. 787 (1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1569, 94 L.Ed.2d 761 (1987); People v. Doherty, 165 Ill.App.3d 630, 116 Ill.Dec. 323, 518 N.E.2d 1303 (1988); Annot., Contempt Finding as Precluding Substantive Criminal Charges Relating to Same Transaction, 26 A.L.R.4th 950, at Sec. 4 (1983). Compare United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) [sufficiently disproportionate civil penalty constitutes second punishment under double jeopardy clause]; In re Kurth Ranch, 986 F.2d 1308 (9th Cir.), cert. granted sub nom. Department of Revenue of Montana v. Kurth Ranch, --- U.S. ----, 114 S.Ct. 38, 125 L.Ed.2d 788 (1993) [imposition of $100-an-ounce marijuana tax violated convicted drug offenders' double jeopardy rights]. Accepting for purposes of argument Mertz's assertion that both proceedings involved the same conduct, the dispositive inquiry is whether the prior contempt proceedings were civil or criminal.

In Baier v. Hampton, 417 N.W.2d 801, 804-805 (N.D.1987), we discussed the distinction between civil and criminal contempt:

"Generally, in distinguishing civil from criminal contempt, we look at the sanction and its nature and purpose, rather than the conduct. Shillitani v. United States 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); State v. Stokes, 240 N.W.2d 867 (N.D.1976). If the sanction's purpose is coercive, that is, to induce performance of an act primarily for another's benefit, the contempt is civil. State v. Stokes, supra. If the contemptuous conduct has been concluded and the purpose of the sanction is to punish the offender and vindicate the authority of the court, the contempt is criminal. Id. Merely because a coercive sanction incidentally benefits another person does not change the contempt from civil to criminal. Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911). So too, a punitive sanction that incidentally coerces does not transform criminal contempt into civil contempt. Id.

"Usually, in civil contempt, the sanction is conditional in nature so that contemnors carry ' "the keys of their prison in their own pockets" ' and stand committed unless and until they perform an affirmative act. Shillitani, supra, 384 U.S. at 368, 86 S.Ct. at 1534, 16 L.Ed.2d at 626, quoting In re Nevitt, 117 F. 448, 461 (8th Cir.1902). Conversely, because the purpose of the sanction for criminal contempt is to punish the offender and vindicate the authority of the court, the sanction for criminal contempt is, ordinarily, unconditional. Gompers, supra."

Although the underlying purposes of the sanction are germane, they are not controlling in determining whether the sanction is punitive and the proceeding therefore criminal in nature, or remedial and the proceeding therefore civil in nature. Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988). The paramount factor is whether the contemnor can be purged of the contempt by performing an affirmative act required by the trial court's order. Id. ³

In this case, although the conduct for which Mertz was found in contempt of court encompassed both the failure to apply the settlement proceeds to the child support arrearages and the failure to appear at the show cause hearing, the sanction of six months imprisonment could be avoided if "Mertz clears himself of the contempt by paying the child support arrearage, with interest, ..." The sanction was therefore remedial rather than punitive because Mertz held the prison keys in his own pocket. Feiock, supra; Baier, supra....