Case Information
*1 A TTORNEY FOR A PPELLANT A TTORNEYS FOR A PPELLEE Mаrk A. Delgado Curtis T. Hill, Jr.
Monticello, Indiana Attorney General of Indiana
Abigail R. Recker Deputy Attorney General Indianapolis, Indiana I N T H E
COURT OF APPEALS OF INDIANA August 31, 2017 Brandis McCollum (formerly Brandis Adams), Court of Appeals Case No. 08A04-1703-GU-614 Appellant,
Appeal from the Carroll Circuit v. Court The Honorable Benjamin A.
Indiana Family and Social Diener, Judge Services Administration, Trial Court Cause No. 08C01-0509-GU-17 Appellee.
Pyle, Judge.
Statement of the Case Brandis McCollum (“Mother”) appeals the trial court’s finding that she was in
civil contempt of court for failing to pay her child supрort as ordered, as well as the trial court’s sanction of one hundred and fifty (150) weeks incarceration. *2 She argues that there was no evidence that she willfully disobeyed the trial court’s order, as is required for a citation for civil contempt, and that the sanction the trial court imposed was improperly punitive. Because we conclude that there was sufficient evidence that Mother willfully disobeyed the trial cоurt’s order , we affirm in part. However, we also conclude that the trial court’s sanction was improperly punitive. Accordingly, we reverse in part and remand with instructions for the trial court to impose a contempt sanction consistent with this opinion. We affirm, reverse in part, and remand.
Issues
1. Whether the trial court abused its discretion when it found that Mother was in civil contempt of court.
2. Whether the trial court abused its discretion when it imposed a sanction of one hundred and fifty (150) weeks of incarceration for Mother’s contempt of court citation.
Facts The civil contempt citation at issue in this case resulted from Mother’s
longstanding failure to pay her child support obligations, as well as her failure to participate in a drug treatment program as ordered by the trial court. Mother has three children, two of whom are in the custody of their grandmother (“Grandmother”), their legal guardian . As a result of Grandmother’s guardianship, Mother is required to pay weekly child support to Grandmother *3 for the two children in her care. [1] The amount and original date of her child support orders are not clear from the record. In the time between the trial court’s original child support order and June 2011,
it is apparent that Mother accrued a significant support arrearage, although the amount is nоt stated in the record. [2] As a result of this arrearage, on June 30, 2011, the trial court ordered Mother to appear and show cause for why she had not paid her child support. At a hearing on the order to show cause, Mother presented evidence that she had not been fulfilling her child support obligations because she was unemployed. Based on this evidence, the trial court set a review hearing for two weеks later and ordered Mother to bring pay stubs and written proof of job applications to the review hearing. At the hearing two weeks later, Mother advised the court that she had been
offered employment the previous day and had made a $200.00 child support payment. The trial court set a review hearing for two months later and ordered Mother to immediately let the IV-D Office know when she officially began to work. (Appellant’s App. Vol. 2 at 3).
[6] *4 Two more months passed, and Moth er’s child support arrearage grew to
$6,009.00, in spite of her new employment. [3] As a result, at the next review hearing on November 17, 2011, the trial court ordered income to be withheld from Mother’s paychecks. Thereafter, Mother failed to appear at two subsequent review hearings. The trial court issued a body attachment, and Mother was arrested on February 28, 2013. At the hearing after Mother’s arrеst, the trial court found that h er child support
arrearage had grown to $8,996.25. The State requested that the trial court find Mother in contempt of court for failing to pay the child support as ordered, and the trial court appointed an attorney to represent her in the contempt cause of action. The court then se t a review hearing and ordered Mother’s child support obligation to remain at $100 per week — $50 for support and $50 to be applied towards her arrearage — until the hearing. By June 27, 2013, two months later, Mother owed $9,046.25. The trial court
found her in contempt of court for failing to comply with its child support order and sentenced her to ninety (90) days in jail with no good time credit. However, the trial court stayed the sanction and told Mother that she could purge herself of the contempt before the next review hearing by complying with its order and reducing her arrearage.
[9] *5 Thereafter, Mother failed to purge herself of the contempt and also failed to
appear at her next review hearing. Thus, on October 31, 2013, the trial court ordered her to serve her previously stayed contempt sanction of ninety (90) days imprisonment. Nevertheless, the trial court again informed Mother that she could purge her contempt and be released from imprisonment, this time by paying $2,000 towards her arrearage. Mother did not pay $2,000 towards her arrearage and instead served her ninety (90) day sanction in jail. Following Mother’s ninety days of imprisonment, she continued to miss her
*6 child support payments. On May 23, 2016, the State filed another motion for the trial court to order Mother to show cause for why she should not be held in contempt of court for her continued failure to pay сhild support. The trial court set a hearing on the motion for July 7, 2016. However, the hearing did not occur in July as planned because Mother failed to appear. The trial court issued another body attachment, and Mother was arrested on October 26, 2016. After Mother’s arrest, the trial court held a hearing on the State’s rule to show cause. At the hearing, Mother revealed that she had recently finished serving a three-month sentеnce for theft in the Tippecanoe County Jail and was still on probation for that conviction. She had also been charged with using “spice,” but the State had dismissed that charge after she had completed a diversion program. (Tr. 29). Since her release from jail, she had enrolled in a substance abuse treatment program called the “ Through the Gate Program .” (Tr. 20). [12] At the conclusion of the hearing, the trial court found Mother in civil contempt
of court “for willfully failing to pay child support as ordered despite the ability to do so.” (Appellant’s App. Vol. 2 at 36). However, the court deferred imposing a sanction for the contempt citation until a review hearing in February 2017. The court ’s order provided that M other could purge her contempt before that review hearing by paying her court-ordered support. The trial court also conditioned Mother ’s release on her attending and completing the Through the Gate Program. Subsequently, the trial court held a review hearing as planned on February 16,
2017. By then , Mother’s child support arrearage had grown to $15,296. At the hearing, she admitted that she had not made a child support payment since February 11, 2016, over a year earlier. However, she testified that she had been working at a store called Discount Tоbacco for three weeks and had just gotten hired the day before to work a second job at Burger King. Her job at Discount Tobacco paid $7.50 per hour and she worked there thirty-eight hours per week. Her job at Burger King paid $9.00 per hour, and she had been guaranteed fifteen hours of work per week there. She said that she had previously had difficulty getting a job due to her convictions, lack of transportation, and inability to obtain appropriate work clothes. With respect to her substance abuse treatment, Mother admitted that she had
completed only five days of the Through the Gate Program after the previous hearing. She testified that she had quit the program after five days because she had discovered that the program would take sixteen months to complete unless *7 she quit work for the first six months. She said that, since leaving thе Through the Gate Program, she had been attending substance abuse classes at the SURF Center three to four times per week. Also at the hearing, the court questioned Mother about the diversion program
she had previously completed so that the State would dismiss her charge for using spice. Specifically, Mother and the court engaged in the following exchange:
THE COURT: Ok and that was the one that was dismissed? [MOTHER:] Success, yes sir.
THE COURT: Because you paid a fee up front?
[MOTHER :] Because I paid the diversion fee… THE COURT: Because you paid a fee up[] front… [MOTHER :] And I also…
THE COURT: That’s how diversions work[,] right? [MOTHER:] No[,] and you have to be good for three hundred and sixty…
THE COURT: Ma’am.
[MOTHER:] Yes[,] sir.
THE COURT: You paid, we’r e going step by step. You paid a fee up front correct?
[MOTHER:] Yes[,] sir they took my bond, yes sir and then I had to pay the remainder, one hundred and twenty[-]seven dollars. *8 THE COURT: Ok. So how much total did you pay for that case?
[MOTHER:] Three hundred and twenty[-]eight dollars. THE COURT: Three hundred and twenty[-eight] dollars. That did not go to child support did it?
[MOTHER:] No[,] sir.
THE COURT: You had the money to pay three hundred and twenty[-]eight dollars, correct?
[MOTHER :] No[,] sir. I didn’t bond myself out. I was.[..] THE COURT: So was this, was this fake currency or was this U.S. dollars?
[MOTHER:] No[,] sir. It was paid by someone else. THE COURT: Not the question. Was this real currency? [MOTHER:] Yes[,] sir.
THE COURT: And for your benefit?
[MOTHER:] Yes[,] sir.
THE COURT: So it existed, the three hundred and twenty[-] eight dollars?
[MOTHER:] Yes[,] sir.
THE COURT: And that went to avoid conviction for a spice charge?
[MOTHER:] Yes[,] sir.
THE COURT: B ecause that’s important[,] right? That’s most important?
[MOTHER :] It’s important[,] sir, yes.
THE COURT: Morе important tha[n] paying support for your children?
[MOTHER:] No[,] sir[,] but.
THE COURT: Well[,] [it] would have to be because that was the choice that you made, correct?
[MOTHER:] Yes[,] sir.
THE COURT: They were both available options. You could admit guilt to the offense, if you were guilty of it, I don’t know if you were. They filed charges[,] so the State alleged you were guilty. You could have admitted guilt, served a sentence, whatever[,] but instead you chose to raise funds from an alternative source, avoid the conviction[,] and then pay more funds to complete the diversion program, correct? [MOTHER:] Yes[,] sir.
(Tr. 30-31). At the conclusion of the hearing, the trial court determined that Mother was at
least one hundred and fifty weeks behind on her child support payments and, based on that duration, imposed a sanction of one hundred and fifty (150) weeks imprisonment, to be served on work release, for her contempt citаtion. The court stayed her child support obligation and provided that Mother could be released from custody at any point during the one hundred and fifty (150) weeks if she were able to reduce her arrearage to below $7,500. Mother now appeals.
Decision
[17] On appeal, Mother argues that the trial court abused its discretion when it
found that she was in civil contempt of court. She also argues that the trial court’s sanction оf one hundred and fifty (150) weeks imprisonment was improper. We will address each of those issues in turn.
1. Contempt Finding First, Mother argues that the trial court abused its discretion when it found that
she was in civil contempt of court. She contends that there was not sufficient evidence to prove that she “willfully” disobeyed the trial court’s child support order because the evidence demonstrated that she did not have the ability to pay the child support. She notes that she had only recently gained employment and claims that she had “started to make child support payments shortly after said employment, even going so far as to contact the Carroll County IV-D Office to provide them with the employment information so that an income withholding orde r could be implemented.” (Mother’s Br. 10). To hold a party in contempt for violating a court order, the trial court must find
that the party acted with “willful disobedience.”
Himes v. Himes
, 57 N.E.3d
820, 829 (Ind. Ct. App. 2016),
reh’g denied
,
trans. denied
. With rеspect to child
support, “[s]imply establishing the existence and knowledge of an arrearage
may not amount to a ‘willful disregard of a court order.’”
Id.
(quoting
Sutton v.
Sutton
,
we will not do.
See Marks
,
2. Sanction Next, Mother argues that the trial court’s sanction of one hundred and fifty
(150) weeks of imprisonment, to be served on work release, was improper because it was punitive in nature, rather than coercive as civil contempt sanctions are required to be. We agree. The primary distinction between criminal contempt sanctions and сivil
contempt sanctions is that criminal contempt sanctions may be punitive in
nature, whereas civil contempt sanctions must be coercive or remedial rather
than punitive.
See Duemling v. Fort Wayne Cmty. Concerts, Inc.
,
her imprisonment by paying approximately $7,797 of her child support
arrearage. Mother argues that, even though the trial court provided for her
release from imprisonment upon her compliance with its order, the sanсtion
was nevertheless punitive in nature because it was realistically unattainable. In
other words, she contends that the trial court essentially did not give her the
“key” to her prison as required.
See Hunter
,
excessive imprisonment term or purge requirement can be an acceptable
sanction as long as the defendant is given the opportunity to purge the contempt
and obtain release from jail.
See id.
(finding that an indefinite imprisonment
term and a purge requirement of $18,000 was permissible). However, we find
that Mother’ s civil contempt sanction here was punitive. A critical distinction
between criminal contempt, through which a court may “punish” a defendant
for past actions, and civil contempt, through which a court may not do so,
*14
Duemling,
is over fifty percent of her total arrearage. Further, Mothеr testified that, while she has obtained employment, her primary job pays only $7.50 per hour. At that rate, it will take Mother a considerable amount of time in work release to purge her contempt, if she is even able to do so. As we noted above, “incarceration for contempt is legally allowable only where the support order upon which release is conditioned is attainable by the obligor.” Marks , 839 N.E.2d at 707 (emphasis added). Further, our Legislature emphasized in its “rule to show cause” statutory provisions that a person charged with indirect contempt should be given a “ reasonable and just opportunity to be purged of the contempt.” I.C. § 34 -47-3-5 (emphasis added). We conclude that in light of Mother’s demonstrated employment possibilities and the excessive amount the *16 trial court ordered her to pay to purge her contempt, it is not reasonably likely that Mother will be able to attain the conditions necessary for her release. It is axiomatic that no amount of imprisonment can coerce a defendant into completing an action that is not practically possible to complete. Accordingly, we conclude that the tria l court’s conditions for Mother’s imprisonment were punitive in nature rather than coercive and, accordingly, not proper for a civil contempt sanction. As a result, we reverse the trial court’s sanction and remand with instructions for the trial court to impose a sanction that is coercive in nature. Affirmed in part, reversed in part, and remanded.
Riley, J., and Robb, J., concur.
Notes
[1] Mother’s child support orders are not a part of the record; nor are any of the trial court’s orders other than its February 16, 2017 order that is the subject of this appeal. We have drawn the facts concerning Mother’s child support history from the Chronological Case Summary (“CCS”).
[2] Mother’s child support obligation as of June 2011 was $50 per week, plus $50 to be paid towards her arrearage.
[3] It is not clear how long this employment lasted. It is apparent that Mother has gone through multiple periods of unemployment, but there is no evidence in the record as to when each period began and ended, except where we hаve specified in the facts.
[4] Notably, in
Marks
we held that there was no evidence that a father had the ability to pay child support even
though he suggested that “it might be possible to get funds from his family.”
Marks
,