Watters v. Watters

• Decision Date: 28 January 1982
• Docket Number: 56408,Docket Nos. 55598
• Parties: Linda Darlene WATTERS, Plaintiff-Appellee, v. Dennis Ross WATTERS, Defendant-Appellant. 112 Mich.App. 1, 314 N.W.2d 778
• Court: Court of Appeal of Michigan — District of US

Page 778

314 N.W.2d 778

Linda Darlene WATTERS, Plaintiff-Appellee, v. Dennis Ross WATTERS, Defendant-Appellant.

Docket Nos. 55598, 56408.

112 Mich.App. 1, 314 N.W.2d 778

Court of Appeals of Michigan.

Submitted June 17, 1981.

Decided Dec. 16, 1981.

Released for Publication Jan. 28, 1982.

[112 MICHAPP 5] Parker & Hayes, P. C. by Michael E. Menkes, Hillsdale, for plaintiff-appellee.

Stross & Marks, P. C., Jonesville, for defendant-appellant.

Before T. M. BURNS, P. J., and HOLBROOK and GLASER, ^* JJ.

[112 MICHAPP 6] T. M. BURNS, Presiding Judge.

The parties to this appeal were divorced on September 30, 1975. The original divorce decree awarded custody of the parties' one minor child to plaintiff but on September 18, 1980, custody was changed to defendant.

The order granting defendant custody of the child contained an extensive and detailed visitation schedule. According to the schedule, plaintiff was entitled to custody of the child from December 28, 1980, through January 4, 1981. Defendant, however, took the child to Florida and wrongfully thwarted plaintiff's visitation rights.

On December 31, 1980, plaintiff petitioned the court to find defendant in contempt for violating the visitation order. On January 13, 1981, a show cause hearing was held on plaintiff's petition. At its conclusion, defendant was found to be in criminal contempt and was sentenced to seven days in the Hillsdale County Jail and ordered to pay $100 court costs. The court further ordered that plaintiff have visitation with the minor child during the 1981 Spring vacation in lieu of the Christmas-New Year's week visitation that was denied by defendant.

Just prior to the hearing on plaintiff's petition, on January 8, 1981, defendant filed a motion to modify the divorce decree to provide for a change in the domicile of the minor child from Michigan to Florida. At the hearing on defendant's motion, which was held on February 9 and 24, 1981, defendant testified that he was currently unemployed and that his unemployment compensation had terminated on November 10, 1980. He further stated that he had been offered a job in Florida where he would earn a minimum of $5 per hour. Defendant indicated that suitable housing was available in Florida and that he had made arrangements[112 MICHAPP 7] to enroll the child in a private school located approximately three miles from the home that he and his present wife hoped to occupy.

Plaintiff contested defendant's request for a change of domicile. She stated that it was her belief that a change of domicile would interfere with her visitation rights and would cause a deterioration of her relationship with the minor child. Defendant responded that he would give plaintiff four weeks of visitation in the summer as well as a week of visitation over the Christmas holidays if permitted to move the child to Florida. He agreed to pay any transportation costs involved in providing visitation and offered to post a bond to show his good faith regarding visitation.

At the conclusion of the hearing, the judge rendered an oral opinion denying defendant's petition. The judge found that defendant had not established by clear and convincing evidence that a change of domicile was in the best interests of the child. The judge noted that defendant had not shown that the move was economically necessary or beneficial and further found that the evidence which tended to show that the move was for defendant's benefit was not compelling enough to justify removal.

Defendant now appeals as of right, having been granted permission by this Court to consolidate the appeal from the contempt order and the appeal from the order denying change of domicile.

A trial judge's statutory authority to find a party in contempt for wilful violation of a court-ordered visitation schedule is grounded in M.C.L. § 600.1701(5); M.S.A. § 27A.1701(5). That statute provides that circuit courts have the power to punish by fine or imprisonment, or both, persons guilty of any negligence or violation of duty or misconduct [112 MICHAPP 8] in cases of "disobedience of or refusal to comply with any order of the court for the payment of temporary or permanent alimony or support money or costs made in any action for divorce or separate maintenance, or any other disobedience to any lawful order, decree or process of the court."

Contempt proceedings may be either civil or criminal in nature. The distinction between criminal and civil contempt was discussed by this Court in Harvey v. Lewis, 10 Mich.App. 709, 715-716, 160 N.W.2d 391 (1968). Quoting from the case of In re Nevitt, 117 F. 448, 458-459, 461 (CA 8, 1902), the Harvey Court described the difference between criminal and civil contempt in the following terms:

" 'Proceedings for contempt are of two classes,-those prosecuted to preserve the power and vindicate the dignity of the courts, and to punish for disobedience of their orders, and those instituted to preserve and enforce the rights of private parties to suits, and to compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the court has found them to be entitled. The former are criminal and punitive in their nature, and the government the courts, and the people are interested in their prosecution. The latter are civil, remedial, and coercive in their nature, and the parties chiefly in interest in their conduct and prosecution are the individuals whose private rights and remedies they were instituted to protect or enforce. * * * A criminal contempt involves no element of personal injury. It is directed against the power and dignity of the court, and private parties have little if any interest in the proceedings for its punishment. But if the contempt consists in the refusal of a party or a person to do an act which the court has ordered him to do for the benefit or the advantage of a party to a suit or action pending before it, and he is committed until he complies with the order, the commitment is in the nature of an execution to enforce the [112 MICHAPP 9] judgment of the court, and the party in whose favor that judgment was rendered is the real party in interest in the proceedings. This is the nature of the case under consideration. These petitioners * * * are imprisoned only until they comply with the orders of the court, and this they may do at any time. They carry the keys of their prison in their own pockets.'

"Another test of whether the contempt is civil or criminal involves consideration of subsequent conduct-an 'after the fact' determination. It may be summarized: Where the contemnor's conduct of noncompliance with the court order has altered the status quo so that it cannot be restored or the relief intended becomes impossible, there is criminal contempt; however, where the contemnor's conduct of noncompliance with the court order is such that the status quo can be restored and it is still possible to grant the relief originally sought, there is civil contempt." (Footnotes omitted.)

Relying upon this distinction between civil and criminal contempt, defendant argues that the present proceedings were in the nature of civil contempt because their purpose was to vindicate a private right and because it was possible to restore the status quo by granting plaintiff additional visitation. Defendant contends, therefore, that the trial judge should have afforded him an opportunity to purge himself of the contempt.

On only one prior occasion has this Court reviewed contempt proceedings as applicable to a violation of a visitation order. In that case, Jaikins v. Jaikins, 12 Mich.App. 115, 162 N.W.2d 325 (1968), the defendant-husband had been found guilty of contempt by a trial judge and sentenced to 30 days in the county jail, fined $250, and assessed costs and attorney fees. On appeal, the defendant argued that the contempt order could not be sustained because the proceeding was civil in nature and he had not been given an opportunity to purge himself. This Court agreed, noting that the trial [112 MICHAPP 10] judge had used the preponderance of the evidence standard of proof, rather than the beyond a reasonable doubt standard, and that the defendant had never been informed of the constitutional protection against self-incrimination and had been required to testify.

Similar defects are present in the case before us. In this case, defendant was not given notice of the criminal nature of the proceedings. The hearing was instituted by a show cause order and placed on the civil docket and the proceedings lacked any semblance of a criminal trial. There is no indication in the record that the standard applied in finding defendant guilty of contempt was that of proof beyond a reasonable doubt. Further, the trial judge questioned defendant about his behavior in this case and never advised him of the privilege against self-incrimination or otherwise indicated to him that he did not have to answer. Finally, defendant was never informed of his right to produce witnesses in his own behalf. We conclude, therefore, that the contempt proceedings in this matter were civil in nature.

As was noted by this Court in Jaikins, in civil contempt proceedings a defendant must be afforded an opportunity to purge himself of the contempt by complying with such conditions as are set by the judge to remedy the situation. Defendant was never given such an opportunity in this case. Therefore, the January 13, 1981, lower court order holding defendant in contempt of court is vacated.

With respect to defendant's argument that the trial judge erred in denying his January 8, 1981, motion to modify the divorce decree to permit him to change the domicile of the minor child to Florida, we find that in order to review this question we must remand for further fact finding.

[112 MICHAPP 11] The trial judge's decision to grant a motion to remove a minor child from this State should be based upon the best interests of the child. Hutchins...