Sword v. Sword

• Citation: 399 Mich. 367,249 N.W.2d 88
• Decision Date: 01 October 1976
• Docket Number: No. 1,1
• Parties: Mary J. SWORD, Plaintiff-Appellee, v. Wiley J. SWORD, Defendant-Appellant. ,
• Court: Supreme Court of Michigan

Page 88

249 N.W.2d 88

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

No. 1, Oct. Term, 1976.

399 Mich. 367, 249 N.W.2d 88

Supreme Court of Michigan.

Dec. 31, 1976.

Frederick E. Salim, Richard P. Banas, Flint, for plaintiff-appellee; Martin F. Palus, Flint, of counsel.

Dolores Coulter, Legal Services of Eastern Michigan, Flint, William Burnham, Michigan Legal Services, Detroit, for defendant-appellant.

COLEMAN, Justice.

On April 16, 1973, Wiley Sword was found in contempt of circuit court (Genesee County) for failing to pay child support and was sentenced to one year in jail. The Court of Appeals reversed because the trial court had not applied a proper standard for determining contempt and because the order failed to provide for release upon purge of the contempt. Defendant appealed to this Court because the Court of Appeals refused to provide for appointment of an attorney and for trial by jury upon remand.

We agree with the Court of Appeals that the judge employed incorrect criteria in his finding of contempt and that the circuit court exceeded its authority in sentencing defendant to a year in jail without provision for his right to purge himself of the contempt. We also agree with the Court of Appeals that the circuit judge was under no constitutional mandate to appoint an attorney for defendant. Although there is no prohibition against such an appointment, court appointed counsel is not required. Neither is a jury trial required in non-support civil contempt hearings.

I

Since Mary Sword filed for a divorce from Wiley Sword on December 30, 1960, defendant has been in jail four times for non-payment of child support. During one of the times in jail, he was on a work-release program and worked at a potato chip factory. From those earnings, he made some payments, but departed from the job when released from jail. He claimed that he had been returned to federal prison in Ohio on August 15, 1961 where he remained until paroled 'in the latter part of '63' to Milwaukee, Wisconsin, where he was ordered to pay $15 per week under the 'reciprocal code'. He claimed to have made some payments until he became sick and was unable to work 'for awhile'. He apparently owed $405 under the Wisconsin order. He also was in jail for awhile in that state. Defendant has moved about the country and his whereabouts during the balance of this period remain unclear. However, he married again and had another family which was receiving public assistance (and had been for about four years). Defendant testified that he was enrolled in a work program but that the State Department of Social Services had been unable to find work for him.

Of the 5 children born during defendant's first marriage, Mary Sword Hunter and her second husband adopted the two younger children, ¹ leaving three children for whom defendant was to pay $8 per week each. At the time of the adoption, defendant was released from all arrearage ($5,000) excepting $405 arrearage from the Wisconsin order.

At the time of the subject contempt hearing, one child was over 18, leaving defendant liable for payments of $8 per week for each of two children. He was $8,471.50 in arrears.

Mr. Sword appeared in circuit court on April 4, 1973 where he asked for and was granted time to obtain counsel. Bond was set at $1500 and defendant was returned to jail. At a hearing on April 16, 1973, defendant said he could not retain counsel. There is no indication that he asked or tried to ask for publicly funded legal assistance from Legal Services of Eastern Michigan, which now represents him, or from any other agency providing legal services free to indigents.

The court stated counsel would not be appointed because the matter was one of civil contempt. Defendant was sentenced to one year in jail by virtue of an order which failed to provide for release upon defendant's purging himself of the contempt. The sentence was imposed upon the finding that the arrearage existed as alleged and that defendant had 'the physical ability to comply with the order'.

On August 1, 1973, defendant filed a pro per motion to dismiss the contempt charge claiming that he was entitled to appointment of counsel and a jury trial. This was denied September 6, 1973. Through an attorney from Legal Services of Eastern Michigan, defendant appealed. On December 13, 1973, the Court of Appeals granted the application and, on its own motion, ordered defendant released pending a decision.

The Court's opinion was entered March 24, 1975, 59 Mich.App. 730, 229 N.W.2d 907 and reversed the trial court for two reasons. First:

'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. Any further 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.'

Second, the trial court 'exceeded its authority' by imposing a sentence 'with no provision for allowing him to purge his contempt at any time'. Compare Roblyer v. Roblyer, 354 Mich. 226, 92 N.W.2d 330 (1958).

Because the proceedings were civil, the Court of Appeals declined to extend the right to appointed counsel and jury trials, saying:

'The defendant in a true civil contempt proceeding has no need of the ritual of a full-scale criminal trial, for he may end his imprisonment at any moment by merely complying with the court's order, or may convince the court after a short period of confinement that he will comply. His ability to secure his freedom at any time eliminates the necessity for the elaborate and costly proceedings involved in a criminal jury trial. Furthermore, the state, representing the people, has a substantial interest in the efficiency of proceedings designed to secure support for minor children. To require a pitched battle over the relatively simple issue of disobedience of a support order could lead to a further breakdown of the administration of justice in our courts as expenses and delays increase.'

Judge R. B. Burns concurred in the result but said that the Court did not have to discuss the constitutional issue.

II

1913 P.A. 239 (M.C.L.A. §§ 552.201--552.203) provides 'a penalty for failure to pay money for the support and maintenance of minor children'. M.C.L.A. § 552.201 reads in 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 fefused 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 . . . For such period as said party shall continue to be in contempt, not to exceed 1 year, however.' (Emphasis added.)

The Court of Appeals correctly concluded that 'our statute contemplates consideration of all factors relevant to the defendant's ability to comply'. Justice Campbell in Haines v. Haines, 35 Mich. 138 (1876), said 'the question of punishment . . . will depend on whether the conduct . . . is intentionally and willfully contumacious or . . . is qualified by circumstances which should fairly exempt him from serious blame'. He said that 'the process of contempt to enforce civil remedies is one of those extreme resorts which cannot be justified if there is any other adequate remedy'.

The question in Brown v. Brown, 135 Mich. 141, 97 N.W. 396 (1903), was whether a support order 'may be lawfully enforced through imprisonment for contempt'. The Court found there was 'as much necessity for stringent measures to compel the support of helpless children as there can be for that of the divorced wife'. ²

The Court in VanDommelen v. VanDommelen, 218 Mich. 149, 187 N.W. 324 (1922), discussed an alimony award:

'As a recognized incident of divorce it is founded on the continuing obligation assumed by the husband under his contract of marriage to support his wife and children, not based exclusively on his property or estate but also on his earnings or ability to earn, and their necessities. In making the award, and later in enforcing it, the court is expected and required to have due regard to the ability of the husband, the character and circumstances of the parties, and all other circumstances of the case. Though based on existing facts it is largely anticipatory.'

The 'issuance of an order of contempt rests in the sound discretion of the court'. Barnaby v. Barnaby, 290 Mich. 335, 287 N.W. 535 (1939). ³

The Court of Appeals decision is consistent with VanDommelen in its finding that the trial court 'must consider whether, under all the circumstances (defendant) has 'sufficient present ability' to obey the support order'. Also see Wellman v. Wellman, 305 Mich. 365, 9 N.W.2d 579 (1943).

Defendant, however, requests more specific criteria by which the judge may determine present ability to pay. The plethora of possible circumstances surrounding a multitude of alleged contemnors precludes the realization of our ambition to be helpful by precision.

Therefore, we only suggest some possible lines of inquiry of defendant in addition to the accuracy of the alleged arrearage.

1. Employment history, including reasons for any termination of employment.

2. Education and skills.

3. Work opportunities available.

4. Diligence employed in trying to find work.

5. Defendant's personal history, including present marital status and present means of support.

6. Assets, real and personal, and any transfer of assets to another.

7. Efforts made to modify the decree if it is considered excessive under the circumstances.

8. Health and physical ability to obtain gainful employment.

9. Availability...