State v. Wallace

• Court: New Hampshire Supreme Court
• Writing for the Court: THAYER
• Citation: State v. Wallace, 136 N.H. 267, 615 A.2d 1243 (N.H. 1992)
• Decision Date: 30 October 1992
• Docket Number: No. 91-282,91-282
• Parties: The STATE of New Hampshire v. Michael E. WALLACE.

Page 1243

615 A.2d 1243

136 N.H. 267

The STATE of New Hampshire v. Michael E. WALLACE.

No. 91-282.

Supreme Court of New Hampshire.

Oct. 30, 1992.

John P. Arnold, Atty. Gen. (Ann F. Larney, Asst. Atty. Gen., on the brief and orally), for the State.

Roland R. Tamminga, Belmont, by brief and orally, for defendant.

THAYER, Justice.

The defendant, Michael Wallace, appeals a decision of the Superior Court (Morrill, J.), finding him in contempt of court and incarcerating him in the house of corrections for three successive weekends. The defendant was found in contempt for failure to comply with a Superior Court (Flynn, J.) order that required him to pay child support and provided that failure to comply would result in incarceration in the house of corrections for three successive weekends. On appeal, the defendant argues that the State had to prove beyond a reasonable doubt that he had the ability to comply with the court's order and that the court erred by failing to make a specific finding on this issue. For the reasons stated herein, we vacate and remand for a determination of whether to proceed in civil or criminal contempt and to make the findings required by this opinion along with the appropriate disposition.

On March 12, 1982, the defendant was found liable for child support and ordered to make weekly support payments. In December 1988, the defendant was approximately $4,000 in arrears, and he entered into a court-approved agreement to pay $35 per week. The defendant failed to comply with the agreement, and at a hearing in June 1989 claimed that he was unable to make the payments. The court instructed the defendant to file a petition to modify the support order, to attempt to obtain work through the State unemployment office on a weekly basis and to send proof of these weekly visits to the New Hampshire Division of Human Services, Office of Child Support Enforcement Services (the division). The defendant did not comply with this order, was found in contempt of court, and sentenced to five days in the house of corrections. The defendant filed a motion to modify his support agreement, but the court dismissed the motion after the defendant failed to appear at a hearing regarding his contention that a medical condition affected his ability to work. On April 26, 1990, at a hearing at which the defendant was present, the defendant was found in contempt and ordered to pay $60 to the division immediately, $200 by April 30, 1990, and $45 per week for on-going support and arrearage; failure to comply would result in imprisonment for three successive weekends in the house of corrections. This order forms the basis of the contempt finding that is the subject of this appeal. The defendant paid $60 immediately but did not pay $200 by the specified date, nor did he continue his weekly payments. After a series of letters from the division, a show cause hearing was held on June 13, 1991. At the hearing, the court ordered the defendant to pay $1,000 by July 26, 1991, to pay $45 per week and to maintain regular telephone contact with the division. The court further found the defendant in contempt for failure to comply with its April 26, 1990 order and sentenced him to three successive weekends in the house of corrections.

The defendant argues on appeal that the imposition of a determinate term of imprisonment, as in this case, is indicative of criminal contempt and, therefore, the State was required to prove every element of the offense beyond a reasonable doubt, including that he was able to comply with the court's April 26, 1990 order.

In determining whether a contempt proceeding is civil or criminal we must look to the character and purpose of the punishment. Town of Nottingham v. Cedar Waters, Inc., 118 N.H. 282, 285, 385 A.2d 851, 853 (1978); Hicks v. Feiock, 485 U.S. 624, 631, 108 S.Ct. 1423, 1429, 99 L.Ed.2d 721 (1988). "Civil contempt is a traditional remedy to enforce family support obligations." Mason Furniture Corp. v. George, 116 N.H. 451, 452, 362 A.2d 188, 189 (1976). In civil contempt, punishment is remedial and its purpose is to coerce the defendant into complying with the court's order, which was made to benefit the complainant. Town of Nottingham, 118 N.H. at 285, 385 A.2d at 853. Civil contempt may result in imprisonment of the defendant, but upon compliance with the court's order, the defendant must be released. Thus it is said that the defendant carries the "keys to the jail" in his or her pocket. Id. at [136 N.H. 270] 285, 385 A.2d at 853-54. "The purpose of prosecution for criminal contempt is to protect the authority and vindicate the dignity of the court." Id. at 285, 385 A.2d at 854. The criminal contempt defendant may be imprisoned for a determinate amount of time without the ability to purge the sentence because incarceration is punitive and not for the purpose of compelling the defendant to comply with a court order. Id.

The case at issue has elements indicative of civil contempt. For example, it is based upon an order of child support for the benefit of the defendant's family. As stated above, civil contempt is generally the remedy to enforce family support obligations. The defendant was sentenced, however, to three successive weekends of confinement, without the ability to purge his sentence by complying with the court's previous order. The court's notice of decision stated: "Defendant has failed to comply with this Court's Order of April 26, 1990.... He shall be incarcerated for 3 successive weekends at the Merrimack County House of Corrections commencing June 21, 1991, each weekend to run from 6:00 p.m. Friday to 6 p.m. Sunday."

The United States Supreme Court held in Hicks v. Feiock that if a defendant charged with contempt...