John David Martinez v. Amanda Jo Martinez ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JOHN DAVID MARTINEZ, UNPUBLISHED
March 16, 2023
Plaintiff-Appellee,
v No. 359759
Ottawa Circuit Court
AMANDA JO MARTINEZ, LC No. 20-094595-DM
Defendant-Appellant.
Before: M. J. KELLY, P.J., and JANSEN and CAMERON, JJ.
PER CURIAM.
Defendant, Amanda Jo Martinez, filed a claim of appeal from the trial court’s order finding
her in contempt of the court’s parenting-time order. For the reasons stated in this opinion, we
dismiss for lack of jurisdiction.
Plaintiff, John David Martinez, filed for divorce in 2020. John and Amanda engaged in
mediation and reached a settlement agreement. In July 2021, the court entered a consent judgment
of divorce. Relevant to this appeal, the consent judgment set forth a parenting time schedule for
the parties’ teenaged minor child. Approximately three month later, John filed a petition for show
cause for why Amanda should not be held in contempt for her failure to comply with the parenting-
time order. He alleged that he had been denied parenting time with their teenaged child on five
occasions, that the denials were ongoing, and that Amanda declined to participate in online dispute
resolution through the Friend of the Court. The court entered a show-cause order and set the matter
for a hearing.
On December 6, 2021, the court held a show-cause hearing. A transcript of this hearing
has not been provided. However, based on representations by the parties and by the court at a later
hearing, it appears that the court found that Amanda had failed to comply with the parenting-time
order because she did not enforce it. The court, however, did not impose sanctions and instead set
the matter for a continued hearing.
At that hearing, the court heard testimony that the parties’ teenaged child continued in her
refusal to attend parenting time. Amanda’s efforts at enforcing the order consisted of
conversations with the child where she indicated that he should go to parenting time with John.
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Amanda also suggested that one of their adult children act as a mediator between the minor child
and John. The trial court heard testimony that the child had indicated to John both orally and in
writing that he felt uncomfortable with him. However, John testified that the verbiage in the text
messages was more consistent with Amanda than it was with the child. He also testified that when
he told Amanda he was filing for divorce, she warned him that if he divorced her he would also be
divorcing his family. Finally, John testified that he had included Amanda in the communications
between him and the child, but that she did not make any responses encouraging the child to go
with him. Amanda claimed that was because she was working when the parenting-time exchange
was set to occur. However, John testified that when he e-mailed Amanda, she would not respond
half of the time and the times she did respond, she would not completely address any questions.
Thereafter, the court found that Amanda continued to be in contempt of the parenting-time
order. The court explained:
[T]he Court has already made that determination on Monday that [Amanda] has not
complied with the Court-order regarding parenting time. She has avoided enforcing
the order. Her only attempts at enforcement are conversation and the Court held
her in contempt on Monday of this week for violating the parenting time order.
There’s been nothing provided today which would undercut that finding. In fact,
it’s become apparent that the problem the parties are facing may be one that
[Amanda] began when she told [John] in front of the children that, “You’re not just
divorcing me, you’re divorcing your family,” that kind of alienating statement has
really set the tone for the post-judgment problems that have arisen here. So I do
find that [Amanda] is in contempt of court of violating the parenting times of the
Judgment of Divorce entered on July 27. I sentence her to pay a fine of 100 dollars
to the Friend of the Court, pursuant to statute, and to serve 20 days in [jail]. I will
suspend the last 16 days of that sentence on the condition that there are no further
violations of parenting time, but she will serve the initial four days immediately.
And with that, we will adjourn. And [Amanda], you’re to wait for an officer and
we’ll hope that you start carrying out your parental obligations as were agreed in
the Judgment of Divorce.
Amanda served four days in jail and paid the $100 fine to the Friend of the Court.
Thereafter, she filed a claim of appeal with this Court, asserting that the trial court abused
its discretion by finding her in criminal contempt of court. She asserts that the record showed that
there was a breakdown in the relationship between John and the child. She believed that the child
should have been allowed to decide for himself whether he wanted to attend parenting time and
that the court should not have coerced her child into complying by incarcerating her and
threatening her with additional incarceration if he continued to refuse parenting time with his
father. She also stated that the trial court erred by finding parental alienation based on her pre-
divorce statement.
In response, John contends that the trial court found her in civil contempt, not criminal
contempt. Because appeals of criminal contempt are by right, but appeals of civil contempt are
only by leave granted, see In re Moroun, 295 Mich App 312, 329; 814 NW2d 319 (2012), he asks
this Court to dismiss Amanda’s appeal for lack of jurisdiction.
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While this appeal has been pending, the child turned 18 years old and is no longer subject
to the parenting-time order. See Hayford v Hayford, 279 Mich App 324, 327; 760 NW2d 503(2008) (stating that a trial court’s continuing jurisdiction regarding a parenting-time determination
ends when a child reaches the age of majority). Amanda, therefore, suggests that the issue of
whether the court abused its discretion by finding her in contempt is moot. She suggests, however,
that the issue of whether this Court has jurisdiction over her appeal, remains justiciable.
A contempt may be either civil or criminal. In re Moroun, 295 Mich App at 32. The nature
of contempt may be distinguished by the character and purpose of the trial court’s sanctions. In
re Contempt of Rochlin, 186 Mich App 639, 644-645; 465 NW2d 388 (1990). The sanctions for
criminal contempt are punitive in nature. DeGeorge v Warheit, 276 Mich App 587, 591; 741
NW2d 384 (2007). As explained by this Court:
Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a
public wrong which is punishable by fine or imprisonment or both. Criminal
contempt is intended to punish the contemnor for past conduct that affronts the
dignity of the court. Thus, when a court exercises its criminal contempt power it is
not attempting to force the contemnor to comply with an order, but is simply
punishing the contemnor for past misconduct that was an affront to the court’s
dignity. [Porter v Porter, 285 Mich App 450, 455; 776 NW2d 377 (2009)
(quotation marks and citations omitted).]
On the other hand, the sanctions for civil contempt are remedial in nature. DeGeorge, 276 Mich
App at 591.
[I]f the court employs its contempt power to coerce compliance with a present or
future obligation or to reimburse the complainant for costs incurred by the
contemptuous behavior, including attorney fees, the proceedings are civil. Thus,
there are two types of civil contempt sanctions, coercive and compensatory.
Nevertheless, civil sanctions primarily intended to compel the contemnor to comply
with the court’s order may also have a punitive intent. If the contempt consists in
the refusal of a party to do something which he is ordered to do for the benefit or
advantage of the opposite party, the process is civil . . . . The order in such a case
is not in the nature of a punishment, but is coercive, to compel him to act in
accordance with the order of the court. [Porter, 285 Mich App at 455-456(quotation marks and citations omitted; ellipsis in original).]
“Differentiating between civil contempt and criminal contempt is not easy because both forms of
contempt might result in the contemnor’s being imprisoned for willfully failing to comply with an
order of the court.” Id. at 456. Generally, a contempt proceeding for failure to comply with a
parenting-time order is considered civil in nature. Id. at 458.
Our review of the available record convinces us that by invoking its contempt power, the
trial court was attempting to coerce Amanda’s future compliance with the parenting-time order.
The imposition of sanctions was not intended to punish Amanda for past violations of the court’s
order. At the first hearing, the court found her in contempt, but then adjourned the hearing. At
the continued hearing, the court heard testimony showing that, despite the court’s finding that she
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was in contempt for failing to enforce the parenting-time order, Amanda’s failure to enforce the
order continued. Her attempts continued to consist of conversations with her teenaged child and
a suggestion that the parenting-time dispute be discussed among the teenaged child, John, and the
parties’ adult child. Amanda, at that point, had already declined online dispute resolution through
the Friend of the Court. Given that the finding of contempt had no meaningful impact on
Amanda’s enforcement of the parenting-order, and given that she continued to remain in contempt,
the court determined that it would impose a $100 fine and 20 days incarceration, with four days to
be served immediately, and the remaining 16 days to be served only upon continued violation of
the court order. Thus, although Amanda suggests that she had no opportunity to avoid the four
days incarceration, the record reflects that she could have avoided it if she had enforced the
parenting-time order between the first hearing (where she was found to be in contempt) and the
second hearing (where the court found she continued to be in contempt and imposed sanctions).
The overall aim of the court’s contempt ruling was to compel future compliance. As a result, we
conclude that Amanda was held in civil contempt. Because “an order finding a party in civil
contempt of court is not a final order for purposes of appellate review,” In re Moroun, 295 Mich
App at 329, we dismiss this claim of appeal for lack of jurisdiction. See MCR 7.203(A)(1).
We dismiss for lack of jurisdiction.
/s/ Michael J. Kelly
/s/ Kathleen Jansen
/s/ Thomas C. Cameron
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