*1 App 730 730 59 Mich v SWORD SWORD Contempt Non-Support—Factors Considered —Statutes. 1. — contempt proceedings for failure to The statute which authorizes obey child-support requires that before a court a order punish contempt it must find that the defend- defendant for a ability comply with the ant is of sufficient or could be finding take such a must into consideration and ability comply; there- all factors relevant defendant’s fore, inquired a where court court’s action was erroneous and, finding physical ability him to work a defendant’s so, jail contempt for for non- able to sentenced him to do 552.201). (MCLA payment Contempt Non-Support—Imprisonment—Unconditional 2. Terms —
—Statutes. contempt proceedings The for failure statute which authorizes obey child-support provides imprisonment for a order and opportu- contempt requires given that a defendant nity by purging release himself of his secure his thereby prohibited sentencing from a defendant and court is (MCLA552.201). to an term of unconditional confinement Contempt Contempt Contempt 3. —Criminal —Punishment. —Civil remedial, contempt purpose of confinement for civil contempt compliance punitive; to coerce future civil seeks punishment imposing indefinite term of must cease complies, imposes when while criminal past punishment for a of definite duration as offense. Headnotes References Points 2d, [1, Separation Am 867. Jur Divorce § 5] Pleading proof, contempt proceedings, as to burden of payment support. alimony order for or child with ALR2d 591. 2d,
[2, Separation 24 Am Jur Divorce 771. §§ 3] 4, 2d, Separation [3, Divorce and 765. § Am Jur 6] Sword v Sword Contempt Non-Support—Civil Contempt 4. — —Statutes. proceedings authorized statute in nature, purely are authority civil in and the has no *2 change proceedings proceed- civil under the statute to criminal ings; therefore, sentencing of the action a court a defendant provision to an of confinement with no unconditional term for purged release if the defendant himself of was erro- neous, proceedings on and had no effect the nature of the (MCLA552.201). Burns, R. B. J.
Concurrence Contempt Non-Support—Punishment—Factors 5. — Considered—
Statutes. punishment The statute which authorizes for for non- support contemplates the consideration of all relevant factors determining the defendant’s with the (MCLA just physical capabilities his 552.201). Contempt Non-Support—Imprisonment—Opportunity
6. — Purge. authority
A trial court exceeded its when it sentenced a defend- non-support ant for in a case to an unconditional year jail provision term of one without to allow the defend- opportunity purge contempt. ant an himself of the Genesee, Appeal Freeman, from R. Donald J. 16, 1974, Submitted Division 2 October (Docket Lansing. 18466.) 24, No. Decided March 1975. Leave to appeal applied for. J.
Wiley Sword was found be in contempt of court for failure to make child support payments. appeals. Defendant Reversed and remanded. (Delbert Green, Frederick E. Salim F. of coun- sel), plaintiff. Coulter, Legal
Delores Services of Eastern Mich- igan, for defendant. App 730 59 Mich Court of the J., R. B. Holbrook, P. Burns D. E.
Before: Bebeau,* JJ. the defendant’s from Bebeau, arose J. This case due under an payments failure to make County Genesee Court order of the Circuit obligated order 1961. July entered for the week per pay $16 wife, Mary Sword. former aby minor children Court exe- of the 12, 1972, Friend April On according to his stating an affidavit cuted Sword, was in defendant, J. records, Wiley in the support due payment arrears thereafter entered $8,471. amount arrest attachment directing that an order The arrest forthwith. issued the defendant be 1, 1973. At April later over one occurred *3 receiving arrest, defendant was the the time of his fathers, grant the through unemployed "ADC for had wife, Defendant Juanita Sword”. his new five years in about support payments made no the Friend marriage and prior of his the children finding his difficulty had much of the Court whereabouts. 4, 1973, spending days three after April
On before the brought Mr. was Sword county jail, the him that if he wanted informed judge court. the expense, proceed- at his own lawyer to hire a purpose. Mr. for that adjourned ings would hearing the affirmatively responded Sword in the Bond was set days. for 12 adjourned was $1,500. unable The defendant was amount county thus returned and was bond post jail. hearing was 16, 1973, the April
On un- that he had been stated The defendant held. * assignment. sitting Appeals by judge, on the Court of Circuit Sword v Sword Opinion of the Court judge able to hire counsel and was informed appointment he counsel, that was not entitled to contempt proceeding. since this was a civil He was further informed that he had no to a attempted trial. The defendant then own de- prepared by fense. He memo read from a Department pres- he of Social Services that was ently receiving unemployed ADC for fathers and program, nature, was enrolled in work of some began but had been to find work. He then unable explain department trying that the was to find interrupted by judge work, him but he was and informed this not issue that was but that arrearage physical "[t]he issue is comply”, things definition "means such being reasonably good being health, not hospitalized, being required by doctor’s direc- unemployed physical tive or order to be because of * * * physical danger Upon hazard or health”. questioning by court, further the defendant arrearages alleged by admitted the Friend reasonably of the Court were correct that he physical ability although work, had had the he inability employment continued to claim to find imply inability during and this could this was also years arrearage. Finally, he had incurred the contempt. defendant admitted that he was in court county jail. sentenced to one in the I *4 contempt proceed- The statute which authorizes ings support obey order, failure to MCLA for pertinent part: 25.161, 552.201; MSA reads shall party "Whenever the court be satisfied that the order, ability comply is of to sufficient with said or App 730 59 ability, sufficient be of diligence could exercise of the so, may said court to do neglected or refused contempt of said court punish person for forthwith by person probation making placing such an order * * * county jail any or to or commit him in the state of prison penal institution state Michigan or continue party shall to as said period for such (Em- year, however.” exceed not to phasis supplied.) the court that before requires
The statute it must find non-support, punish of "sufficient could be is or the defendant At order. to with ability” however, inquired below, the trial hearing the defendant had the to whether discover from consid- It excluded comply. to physical ability might have affected other factors eration such as the provide ability defendant’s throughout years employment availability Because our arrearage. during creation of all factors consideration contemplates statute ability comply, to the defendant’s relevant capacity of physical element merely must be re- work, the lower court the action of of defendant’s future determination Any versed.1 take into children must support his ability to apparent physical more than account whether, all under consider and must work circumstances, present ability” he has "sufficient or refused neglected, obey the order. obey author- addition, exceeded its the trial court to an uncondi- the defendant it sentenced when ity statute, MCLA jail. of one term tional 25.161, provides for 552.201; MSA Hendrick, 225; Super A2d 722 220 Pa v Cf. Commonwealth (1971). *5 735 Sword v Sword Opinion of the Court the defendant "for such as said only period party contempt, shall continue to to be exceed 1 long read year”. prohibit statute been from sentencing courts defendants uncondi- tional terms to require of confinement that defendants given opportunity to secure their release of their by purging themselves con- OAG, 1935-1936, 104, tempt. p See No (Sep- 279 1935). tember Because the court sentenced the provision allowing defendant with no for him to time, purge his at contempt any court ex- authority, judgment ceeded its and its must be vacated. The court had in mind past have non-performance obligations and de- status, present fendant’s by classified De- partment Services, being Social an ADC Thus, unemployed father. the court have "allergic” concluded the simply defendant was process. However, the work the record indicates the confinement from his physical resulted plus arrearage. work
II The assertion that by defendant this action is is not criminal tenable. The validity defendant’s depends claim upon holding pro- ceedings non-support involve criminal con- tempt and not civil Sixth terms, applies only Amendment its to "criminal prosecutions”.2 appeal Defendant’s brief states: one-year imposed
"The sentence on the defendant punitive this case was unconditional and and therefore prosecutions, enjoy "In shall all accused * * * trial, public speedy impartial and to have the Const, (Emphasis of Counsel for his defense.” Assistance added.) US Am VI App Court appropriate proceeding. in a criminal provision permitting The sentence did not contain a purge time.” himself civil and distinction between criminal con- *6 tempt is in specific cases, well certain established though judicial not without some confusion. Con- finement imposed in either may type con- case, tempt its in civil purpose contempt but is remedial and punitive. not "Imprisonment in such cases is not inflicted as a punishment, by coercing but is intended be remedial the defendant decree in such cases is that mitted unless and until he required by to do what he had refused to do. The
the defendant stand com- performs the affirmative act Gompers the court’s order.” v Buck’s Stove Co, Range 418, 442; 492, 498; & 31 S Ct US 55 L Ed (1911). 797, 806 therefore, a case of civil contempt, the defend- ant prison carries the to his key pocket door his at any time secure his release by comply- ing with the court’s demonstrating order or will, release, upon that he comply. On the hand, other contempt proceedings seek to punish past action rather than to secure future complaince. "If imprisonment the sentence is limited to for a period,
definite
key,
the defendant
is furnished no
he cannot
by promising
repeat
shorten the term
not to
imprisonment operates
the offense. Such
edy
as
rem-
nature,
solely
punishment
coercive
its
but
as
completed
442-443;
act of disobedience.” Id. at
31 S
498;
Ct at
The court below the defendant year, provision for one with no *7 purged for release if the defendant himself of contempt. explained above, however, As the court power impose has no under the statute to what is sanction, branded as a criminal nor does the court change any authority proceedings have civil proceedings. Thus, under the statute to criminal authority of action the court excess of its had upon proceedings no effect of nature before it, the defendant’s case below remained a civil prescribed action as the statute. jurisdictions, true,
Some
it is
have extended the
appointed
jury
counsel and
trials to indi-
non-support
gent
defendants
or other
con-
civil
tempt
extension, however,
Such an
un-
cases.3
is
necessary. The defendant
in a true civil
proceeding
no need of the
ritual of a full-scale
may
trial,
at
for he
end his
1974).
Zaborac,
(Alas,
Otton v
any complying merely moment with the court’s order, the court after a convince short period comply. that he will confinement His at secure his freedom time elimi- necessity costly nates the for the elaborate and proceedings in a criminal involved trial. Fur- representing people, thermore, state, has a efficiency proceedings substantial designed interest in the support to secure for minor children. To require pitched relatively simple over the battle issue of disobedience of a order could lead ato further breakdown the administration of justice expenses delays in our courts in- Already crease. the circuit courts handle thou- year; sands of cases each some circuits weekly Day” most of them are on a "Fathers’ exclusively devoted to domestic relations cases. If each of these cases were handled like a trial, criminal staggering, the burden on the courts would be many persons of concern involved trials. problems making which would arise from
support cases criminal cases would be of both a legal practical nature. In order to determine appointed whether defendants are entitled to coun- example, sel, for a trial court must hold an indi- gency hearing. procedure This in itself will cause delay, confusion, addition, and inconvenience. In it place will courts and defendants in an awkward legal subject situation. This is so because the inquiry indigency hearing an mat- involve subject inquiry ters which are the at the con- tempt hearing proper, viz., the financial resources *8 proce- of the defendant. In order to establish the indigency, dural fact of the court must address of the case merits and the defendant must risk 739 Sword v Sword op the Court compromise privilege against his self-incrimina in tion order to appointed to establish counsel. The whole would process certainly be confusing, and it succeeded in already causing See Schutz v difficulties for at one court. least 1973). Helm, (ED Wis, F Supp 423 the case of Argersinger v claims that Defendant Hamlin, 2006; L 25; 407 US 96 S Ct Ed 2d 530 (1972), person is for the claim that a authority alleged be in for the payment arrears for his minor children ordered in a divorce judg- ment attorney brought entitled to an when before a court should why show cause he not be cited may lead to confinement any period year. not to exceed time one
That criminal prosecution case involved a comments in the case the Court which do not relate criminal not prosecutions would be to precise issue involved this case. The issue there involved related to a criminal prosecution or defendant, held proceeding that a such, lawyer is entitled to a if there is likelihood that incarceration result from a conviction of a felony or a misdemeanor. appear It does not that (a case) Argersinger, supra, is an appro- priate guideline for proceedings nature of payment support. efforts to coerce always Courts be of the impact aware consequences resulting of decisions from and, changes interpretations of constitutions matter, this we must mindful this problem is not confined resulting from divorce, also but the matter of support resulting matters, paternity from of mothers 138,4 children under PA and the Uniform 25.222(1) seq.; seq. et et MCLA 552.451 MSA *9 App 59 Opinion of the Court Act, Reciprocal Support Enforcement 1952 PA 8.5 problem also arise from violation
restraining requiring orders and orders the release specified matters. If chattels divorce the courts are enforce such orders by unable to coer- cive confinement without a trial and ap- pointed interpreting counsel virtue of the constitution, the above statutes will become inef- field, litigant fective. expecting this the some relief through a court order is entitled to some effort on part of the Friend the Court and the court to enforce the order without the neces- of a sity trial.
If an attorney appointed must be and a jury trial granted at support hearings because coercive therefrom, confinement may pres result and thus case, aspect ent of a criminal then all ritual of GCR required.6 785 should be Self- prevented incrimination must be and any time the Friend of the Court delinquent "duns” support money, delinquent should be advised silent, of his to remain otherwise an incrimi nating response to the dun would be inadmissible.
The trial court pre- knows not the facts when petition hearing sented with the on a Friend of complaint, except as to the amount of the arrearage, unless he has had the previously delinquent prior occasions on the prob- same lem. This knowledge may prevent hearing a bench on the issue before the judge possessed of such knowledge. judges Michigan Trial are now dis- qualified conducting from bench trial if felony judge required portion was to read a of a 25.225(1) etseg.; etseg. 5 MCLA 780.151 MSA 6May anticipate we in the near future the contention that one claiming indigent attorney to be an should have the services of an presenting indigency. him in assist the facts of his claim of v Sword Sword Court transcript preliminary a result of a motion filed disqualifica- case. We forward to look judge indigency hearing, tion if conducted delinquent periodic recipient or the was a of an order to show cause. respects contempt hearing
Other of a would necessarily change if were to it be treated as a *10 prosecution proceeding. criminal or criminal delinquent absence of the use of the defendant’s testimony admission, own or the court would turn by to the information obtained the Friend of the e.g., discharge quitting Court, ployment. a recent of em-
Yet, virtue the Sixth Amendment right confrontation, to much information would be hearing, inadmissible at the and court the could inquire delinquent of the the truth of that complainant’s proof Further, matter. the burden of "beyond would rise to a reasonable doubt” from a preponderance of evidence. consequence likely
A of the to extension defend- procedure ants of the criminal in these matters plea bargaining proc- in would result ess now the horrible prevailing in criminal cases and the conse- quence An of such. accomodation be will reached delays as is done in criminal cases because of clogging the of court calendars. Once the word is passed delinquents they to that are entitled to an expense attorney jury taxpay- and a at the protection they ers, and that have of the procedure, safely predicted, it it can be as many plea bargaining was when wholesale support payments arrived, decrease will just crime as the rate increased. The courts will parents lose tool available to coerce provide support for their children. required adopt
Should we be the criminal procedure cases, that, it in these would follow App 730 59 Mich op to the delin- finding adverse event there is a are imposed nature quent and sanctions him, required render would upon legal thereafter immediately advice such, assist appeal attorney public expense. Goodman, People v Appeals Court of (1969), 175, 178-179; 169 NW2d
Mich App held: 'petty’ crime in Michi- contempt remains a
"Criminal mandatory. gan., and a trial is not having to be criminal This determined cause been nature, procedure of criminal the usual standards (Emphasis supplied.) are attendant thereon.” evidence Goodman involved injunction the violation of an alleged It that an under act”.7 was "padlock was, hearing thereon violated. injunction was case, a crimi- to be conducted as according to this before us was com- type problem nal case. The of Goodman matter, and the rule menced as a civil *11 application have no here. should 54,000 disposed cases were In 1973 about divorce courts, those cases circuit which includes by of there were filing. year, dismissed after the same 20,000 disposed by of about Report Annual of Su- Michigan. circuit courts of 54,000 divorce cases Court 1973. Of the preme it can be estimated disposed safely of thousands of 25,000 cases are added to the Friend of the Court each files of the age. years until all children are there remain magnitude problem of a This should indicate proceeding this by classifying type to be created was prosecution. The Constitution as a criminal 600.3801; MSA 27A.3801. MCLA Sword v Sword Burns, by Concurrence R. B. J. established not to insure justice to the indi- vidual but people also to all promote general people. welfare of the
Reversed and remanded.
D. Holbrook, E. J.,P. concurred. result). (concurring Burns,
R. B. J. I concur in by my colleagues my the result reached but opinion necessary it is not to decide or discuss constitutional issue.
Defendant was found guilty court, by judge, the trial and sentenced to one year in the county jail. 552.201; MCLA MSA 25.161. Defendant appeals and we reverse the trial court.
The defendant brought was before the court because of his pay failure to for the support of his minor children. He read from prepared a memo by Department of Social Services that he was presently receiving ADC for unemployed fathers and was enrolled in a program, work but was unable to find work. interrupted He was by the judge and informed that was not the issue but that "the issue is arrearage and physical ability comply”, which by definition things "means as being in good health, reasonably being hospitalized, not being required by doctor’s direc- tive or order to be unemployed because of physical hazard or physical danger to health”.
The contempt proceeding, for failure obey order, governed 552.201; MCLA MSA 25.161, which reads as follows:
"Whenever the court shall be party satisfied that is of sufficient with said diligence ability, exercise could be of sufficient *12 neglected so, or refused to do said court punish person forthwith such of said court App 59 Burns, Concurrence R. B. J. making placing person probation order * * * county commit him jail for such period as party said shall contrive be in contempt, not to year, exceed 1 however.” may punish person Before the court for con- tempt non-support, judge the trial must find party that the ability” is or could be of "sufficient comply present with the In order. case the judge inquired only trial to discover whether the physical ability comply defendant had the with the order. He excluded from consideration other might factors which ity have affected defendant’s abil- comply with the order. contemplates The statute the consideration of all determining relevant ability factors the defendant’s just with the physical capabilities. addition, the trial court exceeded its author- ity when it sentenced the defendant to an uncondi- jail. tional pro- term of one The statute vides for while the defendant con- tinues to be in court, not to exceed year. present one In case the court did not any opportunity allow the purge himself.
Reversed and remanded for action consistent opinion. with this