Sword v. Sword

• Decision Date: 24 March 1975
• Docket Number: Docket No. 18466,No. 2,2
• Citation: 229 N.W.2d 907,59 Mich.App. 730
• Parties: Mary J. SWORD, Plaintiff-Appellee, v. Wiley J. SWORD, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 907

229 N.W.2d 907

59 Mich.App. 730

Mary J. SWORD, Plaintiff-Appellee, v. Wiley J. SWORD, Defendant-Appellant.

Docket No. 18466.

Court of Appeals of Michigan, Division No. 2.

March 24, 1975.

Released for Publication June 11, 1975.

Legal Services of Eastern Michigan by Lawrence F. Gambino, Dolores Coulter, Flint, for defendant-appellant.

Delbert F. Green, Flint, for plaintiff-appellee.

Before D. E. HOLBROOK, P.J., and R. B. BURNS and BEBEAU, ^* JJ.

BEBEAU, Judge.

This case arose from the defendant's failure to make support payments due under an order of the Circuit Court of Genesee County entered July 24, 1961. The order obligated the defendant to pay $16 per week for the support of his minor children by a former wife, Mary Sword. On April 12, 1972, the Friend of the Court executed an affidavit stating that according to his records, the defendant, Wiley J. Sword, was in arrears in the payment of support due in the amount of $8,471. The court thereafter entered an order directing that an attachment for the arrest of the defendant be issued forthwith. The arrest occurred over one year later on April 1, 1973. At the time of his arrest, the defendant was receiving 'ADC for unemployed fathers, through the grant to his new wife, Juanita Sword'. Defendant had made no support payments in about five years for the children of his prior marriage and the Friend of the Court had much difficulty in finding his whereabouts.

On April 4, 1973, after spending three days in the county jail, Mr. Sword was brought before the court. The judge informed him that if he wanted to hire a lawyer at his own expense, the proceedings would be adjourned for that purpose. Mr. Sword responded affirmatively and the hearing was adjourned for 12 days. Bond was set in the amount of $1,500. The defendant was unable to post bond and was thus returned to the county jail.

On April 16, 1973, the contempt hearing was held. The defendant stated that he had been unable to hire counsel and was informed by the judge that he was not entitled to appointment of counsel, since this was a civil contempt proceeding. He was further informed that he had no right to a jury trial. The defendant then attempted his own defense. He read from a memo prepared by the Department of Social Services that he was presently receiving ADC for unemployed fathers and was enrolled in a work program, of some nature, but had been unable to find work. He then began to explain that the department was trying to find him work, but he was interrupted by the judge and informed that this was not the issue but that '(t)he issue is arrearage and physical ability to comply', which by definition 'means such things as being in reasonably good health, not being hospitalized, not being required by doctor's directive or order to be unemployed because of physical hazard or physical danger to * * * health'. Upon further questioning by the court, the defendant admitted that the arrearages alleged by the Friend of the Court were reasonably correct and that he had had the physical ability to work, although he continued to claim inability to find employment and this could imply this inability was also during the years he had incurred the arrearage. Finally, defendant admitted that he was in contempt. The court sentenced the defendant to one year in the county jail.

I

The statute which authorizes contempt proceedings for failure to obey a support order, M.C.L.A. § 552.201; M.S.A. § 25.161, reads in pertinent part:

'Whenever the court shall be satisfied that the party is of sufficient ability to comply with said order, or by the exercise of diligence could be of sufficient ability, and has neglected or refused to do so, said court may forthwith punish such person for contempt of said court by making an order placing such person on probation or may commit him to the county jail * * * or to any state prison or any penal institution in the state of Michigan for such period as said party shall Continue to be in contempt, not to exceed 1 year, however.' (Emphasis supplied.)

The statute requires that before the court may punish for contempt for non-support, it must find that the defendant is or could be of 'sufficient ability' to comply with the support order. At the hearing below, however, the trial court inquired only to discover whether the defendant had the physical ability to comply. It excluded from consideration other factors which might have affected defendant's ability to provide support such as the availability of employment throughout the years during the creation of the arrearage. Because our statute contemplates consideration of all factors relevant to the defendant's ability to comply, and not merely the element of physical capacity to work, the action of the lower court must be reversed. ¹ Any future determination of defendant's ability to support his children must take into account more than his apparent physical ability to work and must consider whether, under all the circumstances, he has 'sufficient present ability' to obey the support order, or neglected, or refused to obey the order.

In addition, the trial court exceeded its authority when it sentenced the defendant to an unconditional term of one year in jail. The statute, M.C.L.A. § 552.201; M.S.A. § 25.161, provides for imprisonment of the defendant only 'for such period as said party shall continue to be in contempt, not to exceed one year'. The statute has long been read to prohibit courts from sentencing defendants to unconditional terms of confinement and to require that defendants be given the opportunity to secure their release by purging themselves of their contempt. See OAG, 1935--1936, No. 104, p. 279 (September 26, 1935). Because the court sentenced the defendant with no provision for allowing him to purge his contempt at any time, the court exceeded its authority, and its judgment must be vacated. The court may have had in mind past non-performance of support obligations and defendant's present status, as classified by the Department of Social Services, of being an ADC unemployed father. Thus, the court may have concluded the defendant was simply 'allergic' to the work process. However, the record indicates the confinement resulted from his physical ability to work plus his arrearage.

II

The assertion by defendant that this action is criminal is not tenable. The validity of defendant's claim depends upon holding that contempt proceedings for nonsupport involve criminal contempt and not civil contempt, for the Sixth Amendment by its terms, applies only to 'criminal prosecutions'. ² Defendant's brief on appeal states:

'The one-year sentence imposed on the defendant in this case was unconditional and punitive and therefore appropriate only in a criminal contempt proceeding. The sentence did not contain a provision permitting the defendant to purge himself at any time.'

The distinction between civil and criminal contempt is well established in certain specific cases, though not without some judicial confusion. Confinement may be imposed in either type of contempt case, but its purpose in civil contempt is remedial and not punitive.

'Imprisonment in such cases is not inflicted as a punishment, but is intended to be remedial by coercing the defendant to do what he had refused to do. The decree in such cases is that the defendant stand committed unless and until he performs the affirmative act required by the court's order.' Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 442, 31 S.Ct. 492, 498, 55 L.Ed. 797, 806 (1911).

In a case of civil contempt, therefore, the defendant carries the key to his prison door in his pocket and may at any time secure his release by complying with the court's order or demonstrating to the court that he will, upon release, comply. On the other hand, criminal contempt proceedings seek to punish past action rather than to secure future compliance.

'If the sentence is limited to imprisonment for a definite period, the defendant is furnished no key, and he cannot shorten the term by promising not to repeat the offense. Such imprisonment operates not as a remedy coercive in its nature, but solely as punishment for the completed act of disobedience.' Id. at 442--443, 31 S.Ct. at 498, 55 L.Ed. at 806.

Civil contempt seeks to coerce future compliance by imposing an indefinite term of punishment which must cease when defendant complies; criminal contempt imposes imprisonment of definite duration as punishment for a past offense.

The statute governing contempt in support cases clearly authorizes judgments of civil contempt if the defendant is actually able to comply with the support order but refuses to do so. If at any time the defendant elects to comply with the court's support order, his punishment must cease. See OAG, No. 104, Supra. The defendant may end his imprisonment at any time by choosing to support his children. The object of his imprisonment is, therefore, not to punish him, but to coerce his compliance with the support order. Because the object of the statute is coercive and the defendant retains the keys to his prison door in his pocket, the contempt proceedings authorized by the statute are purely civil in nature.

The court below sought to punish the defendant by imprisonment for one year, with no provision for release if the defendant purged himself of contempt. As explained above, however, the court has no power under the statute to impose what is branded as a criminal sanction, nor does not court have any authority to change civil proceedings under the statute to criminal proceedings. Thus, action of the court in excess of its authority had no effect upon the nature of the proceedings before it, and the defendant's case below remained a civil action as prescribed by the statute.

Some jurisdictions, it is true, have extended the right to appointed counsel and jury trials to indigent defendants in nonsupport or other civil contempt cases. ³ Such an extension,...