MEMORANDUM OPINION
The issue for determination here arises upon a complaint filed in this Court by the debtor, Robert D. Rook, for a permanent injunction staying civil contempt orders issued by the Circuit Court of Fairfax County. An emergency hearing on the debtor’s application for a temporary restraining order was held June 13, 1989, at which time the entire matter was taken under advisement.
The first of two orders from which the debtor seeks relief was issued by the Honorable Thomas J. Middleton of the Circuit
that the complainant, Robert D. Rook is in contempt of this Court’s decree of April 16, 1982 and is hereby sentenced to five and one-half months in the County jail, which such sentence is suspended pending his making all payments pursuant to the parties’ Agreement, and it is FURTHER, ADJUDGED, ORDERED AND DECREED that Robert D. Rook shall have 60 days from the day of the hearing of November 19, 1982, to pay all sums Ordered or, said punishment shall be reviewed by this Court[.] 1
The 1983 order further indicated that the debtor was entitled to a hearing on the issue of “whether the Property Settlement Agreement entered into between the parties [wa]s void and invalid and therefore unenforceable under Section 20-109.1 of the Code of Virginia, 1950, as amended[.]” Va.Code Ann. § 20-109.1.
The Honorable Burch Milsap, also of the Circuit Court for Fairfax County, presided over the hearing on the validity of the property settlement agreement and found that the agreement was “invalid and unenforceable as void against public policy.” Lisbeth Rook appealed Judge Milsap’s decision to the Virginia Supreme Court, and the contempt provision of the original order was held in abeyance. The Virginia Supreme Court ultimately reversed Judge Milsap’s findings on procedural grounds on March 6, 1987, and the case was remanded to the Fairfax circuit court.
See Rook v. Rook,
On remand, Judge Middleton issued an order on April 27, 1989 which addressed the rights of the parties with respect to the Agreement, and the period of incarceration for civil contempt provided for by the February 25, 1983 order. In the 1989 order, Judge Middleton noted the intervening petition in bankruptcy filed by the debtor on March 9, 1989, and the application of the automatic stay. Judge Middleton submitted, however, that since the amount owed by the debtor was not paid by the date specified in the 1983 order that Robert D. Rook was in contempt of court prior to the filing of the bankruptcy petition. Judge Middleton further noted that Robert D. Rook continued to be in contempt and that the stay of the bankruptcy court was not applicable to the circuit court’s 1983 order.
The debtor asserts that the “purpose of the contempt sanction in this instance is to ‘enforce the rights of private parties,' ” and, therefore, constitutes a violation of the automatic stay imposed under § 362 of the Bankruptcy Code (“the Code”). 11 U.S.C. § 362; see 11 U.S.C. § 101 et seq. The defendant, Lisbeth Rook, maintains that the orders issued by Judge Middleton are punitive in nature and as such, fall within exceptions to the automatic stay.
We note preliminarily that although this matter is before the Court upon the debt- or’s motion for a temporary restraining order and complaint for permanent injunction, it will not be necessary for this Court to exercise its equitable powers under 11 U.S.C. § 105 2 , in view of the fact that Judge Middleton suspended further action pending a ruling in this Court, thereby eliminating the need for the injunctive process. 3
[(a)(1)] the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.
11 U.S.C. § 362(a)(1).
While the Fairfax circuit court noted the applicability of the automatic stay under § 362 in its 1989 order, we clarify that the stay does not apply automatically to an act or proceeding that does
not
affect property of the debtor’s estate.
Matter of Holtkamp,
In the instant case, the initial proceedings were instituted to obtain clarification of the parties’ property settlement agreement and financial obligations. Accordingly, the provisions of the order entered in April of 1989 which pertain to funds or property of the debtor’s estate are void,
see In re Stringer,
The 1983 and 1989 orders, however, contained provisions which addressed both the parties’ property settlement agreement and the contempt of a prior decree of the court by Robert D. Rook. The more difficult issue before the court is whether the automatic stay also applies to the citations for contempt.
(1) ... the commencement or continuation of a criminal action or proceeding against the debtor[.]
11 U.S.C. § 362(b)(1). Despite their common focus, however, not all courts are in agreement regarding the applicability of this subsection.
One line of authority has determined that in view of the language of § 362(b)(1), proceedings which are excepted from the automatic stay
must
be criminal in nature. These courts distinguish a criminal action or proceeding (brought to enforce “criminal law”), from a civil contempt order (a judicial act to enforce a judicial directive or preserve the court’s dignity).
See In re Dervaes,
A second line of cases examines the circumstances surrounding the issuance of the order of contempt, to determine whether the intent of the court was to “satisfy a judgment or simply to punish.”
See International Distribution Centers, Inc. v. Walsh Trucking Co., Inc.,
[cjivil contempt is remedial; the penalty serves to enforce compliance with a court order or to compensate an injured party. Criminal contempt is punitive; the penalty serves to vindicate the authority of the court and does not terminate upon compliance with a court order.
A third line of authority considers the issue not in terms of civil and criminal distinctions, but simply finds that:
[i]t is within [a] court’s inherent power to take whatever steps necessary to ensure those persons within its power comply with its orders. The court cannot conceive that Congress intended to strip the court of this power, and instead permit a party to blatantly violate direct orders of the court and then seek shelter from a bankruptcy judge. If this were so, the court’s orders could be rendered almost meaningless. The court must retain the ability to compel compliance with its orders; a party seeking relief from his creditors is not free to run rampant in flagrant disregard of the powers of the court. A civil contempt judgment is one effective method of coercing compliance and ‘upholding the dignity of the court.’
US Sprint Communications Co. v. Buscher,
While courts have devised various theories regarding the applicability of the automatic stay to “contempt proceedings,” and while counsel for each party in the instant matter sought to label the state proceedings from which the orders have emanated as “civil” or “criminal,” a bankruptcy court’s interpretation of a contempt order depends first upon the circumstances of the individual case. We note that although an order which issues from a civil proceeding presumably may be civil in nature, a court may determine upon closer scrutiny that the proceeding and thus the order were in fact punitive. Consequently, we adopt the analysis of the courts which examine all aspects surrounding the issuance of a contempt order, due to the fact that the application of labels alone to the proceedings in question may result in a finding that does not comport with the intent of the Code.
Cf. In re Clowser,
Reviewing the circumstances before this Court, we note that the unique aspect of the instant case is the request by the defendant to consider contempt provisions incorporated in two orders. While assuming without deciding the validity of the provisions in the order issued post-petition, we review each order below. The first order issued in 1983 found Robert D. Rook to be in contempt of a prior decree of the circuit court, prescribed the applicable term in the County jail, expressly provided that such sentence was
suspended
pending the payment of all sums due, and that the debtor had 60 days to comply with the order or the punishment would be reviewed by the circuit court. It is clear from the order first that the defendant was found to be in contempt but that the debtor had the opportunity to purge himself of the contempt citation. As such, the contempt provision of the 1983 order must be construed as an attempt to exact certain behavior from the debtor, specifically the payment of sums due his former spouse, to which the stay would have applied to prevent the coerced dilution of the estate.
See Holtkamp,
In the April 1989 order, however, Judge Middleton found Robert D. Rook to have been in contempt of court from November 19, 1983, the date until which the debtor had the opportunity to purge himself, until the present time:
AND IT APPEARING to the Court that an order dated February 25, 1983 wherein this Court decreed that Robert D. Rook was in contempt of this Court and in that order this Court ordered that he be incarcerated in the County jail for a period of 5V2 months unless all sums due were paid in full by November 19, 1983, that such sums were not paid by Robert D. Rook by November 19, 1983, that the appeal to the Supreme Court of Virginia stayed all proceedings in this cause; that the February 25, 1983 order has been in abeyance since the appeal, that this Court previously ordered Robert D. Rook to be incarcerated on February 25, 1983 when this Court held him in contempt, that Robert D. Rook was in contempt of this Court prior to the filing of his Bankruptcy petition, that he continues to be in contempt of this Court, that Robert D. Rook had the power to comply with this Court’s order of February 25, 1983 and the Property Settlement Agreement, and that he failed to do so and should be punished accordingly.
As the object of punishment in contempt cases is to compel obedience to the violated order, and to vindicate the dignity of the court, the court may forego the latter and use its power to effectuate the former. A conditional judgment is very well calculated to produce such a result. If the condition is not performed, the judgment necessarily becomes absolute.
4A Michies’s Jurisprudence of Virginia and West Virginia, Contempt § 30 at 580 (1983) (emphasis supplied).
Based upon the foregoing, we conclude that the automatic stay does not apply to the contempt provisions of the 1989 order.
Smith-St. John Mfg. Co. v. Lenard Price,
Civ. Action No. 88-2018, slip op. (D.Kan. January 9, 1989) (determining “section 362(a)(1) does not apply to contempt proceedings aimed at punishing a bankrupt for flouting court orders”);
see Guariglia v. Community Nat’l Bank & Trust Co.,
Even if we were to determine that the automatic stay applied, we would find that the contempt provisions of the 1989 order were exempt from the application of the automatic stay under § 362(b)(1). It *is clear from the terms of the 1989 order that the provision whereby the debtor could purge himself had long since ended and that the debtor no longer had the opportunity to do so, thus converting a contempt citation, civil and remedial in nature, into a citation criminal and punitive in nature.
See Local 333B, United Marine Div. of Int’l Longshoremen’s Ass’n v. Commonwealth ex rel. Virginia Ferry Corp.,
While mindful of the sensitive posture of a contempt order upon the eontemnor’s filing of a petition in bankruptcy, and hesitant to restrict the applicability of the automatic stay unnecessarily, we note that the importance which attaches under circumstances wherein a court of competent jurisdiction seeks to enforce an order of that court must be carefully considered.
See In re Thayer,
An appropriate order will enter.
Notes
. Rook v. Rook, Chancery No. 74825 (Order of February 25, 1983).
. Section 105 of the Bankruptcy Code provides that a bankruptcy court "may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title.” 11 U.S.C. § 105.
.Generally, federal courts are precluded by the Anti-Injunction Act from enjoining state court proceedings absent express authorization by Congress. 28 U.S.C. § 2283. Bankruptcy courts Have cited various statutes as evidence of an express authorization by Congress to enjoin state court proceedings.
See e.g., In re Baptist Medical Center of N.Y.,