Sickler v. Sickler , 293 Neb. 521 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/13/2016 09:06 AM CDT
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Nebraska A dvance Sheets
293 Nebraska R eports
SICKLER v. SICKLER
Cite as 293 Neb. 521
M adeline Loretta Sickler, now known as
M adeline Loretta Schmitz, appellee, v.
Steven Dale Sickler, appellant.
___ N.W.2d ___
Filed May 13, 2016. No. S-15-594.
1. Contempt: Appeal and Error. In a civil contempt proceeding where a
party seeks remedial relief for an alleged violation of a court order, an
appellate court employs a three-part standard of review in which the trial
court’s (1) resolution of issues of law is reviewed de novo, (2) factual
findings are reviewed for clear error, and (3) determinations of whether
a party is in contempt and of the sanction to be imposed is reviewed for
abuse of discretion.
2. Contempt. Civil contempt proceedings are instituted to preserve and
enforce the rights of private parties to a suit when a party fails to com-
ply with a court order made for the benefit of the opposing party.
3. Contempt: Words and Phrases. Willful disobedience is an essential
element of contempt; “willful” means the violation was committed
intentionally, with knowledge that the act violated the court order.
4. Contempt: Proof: Presumptions. Outside of statutory procedures
imposing a different standard or an evidentiary presumption, the com-
plainant must prove all elements of contempt by clear and convinc-
ing evidence.
5. Contempt. Contempt proceedings may both compel obedience to orders
and administer the remedies to which a court has found the parties to
be entitled.
6. Courts: Restitution: Contempt. Through its inherent powers of con-
tempt, a court may order restitution for damages incurred as a result of
failure to comply with a past order.
7. Courts: Jurisdiction: Divorce: Contempt. A court’s continuing juris-
diction over a dissolution decree includes the power to provide equitable
relief in a contempt proceeding.
8. Courts: Equity. Where a situation exists which is contrary to the
principles of equity and which can be redressed within the scope
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of judicial action, a court of equity will devise a remedy to meet
the situation.
9. Constitutional Law: Debtors and Creditors. With the passage of Neb.
Const. art. I, § 20, Nebraska put an end to the ancient practice of seizing
the person of a debtor as a means of coercing payment of a debt.
10. Debtors and Creditors: Words and Phrases. Whether an obligation is
a “debt” depends on the origin and nature of the obligation and not on
the manner of its enforcement.
11. ____: ____. “Debt,” as stated in state constitutional prohibitions of
imprisonment for debt, is generally viewed as an obligation to pay
money from the debtor’s own resources, which arose out of a consensual
transaction between the creditor and the debtor.
12. Divorce: Property Division: Constitutional Law: Contempt: Debtors
and Creditors. Contempt for noncompliance with a property division
award in a dissolution decree does not originate in an action for the col-
lection of debt, or from an obligation, through a consensual transaction
between the creditor and the debtor, to pay money from the debtor’s
own resources. Therefore, enforcement, through contempt, of a property
division does not violate Neb. Const. art. I, § 20.
13. Courts: Criminal Law. A court can impose criminal, or punitive, sanc-
tions only if the proceedings afford the protections offered in a crimi-
nal proceeding.
14. Contempt: Sentences. A civil sanction is coercive and remedial; the
contemnors carry the keys of their jail cells in their own pockets,
because the sentence is conditioned upon continued noncompliance and
is subject to mitigation through compliance.
15. Criminal Law: Contempt: Sentences. A criminal sanction is punitive;
the sentence is determinate and unconditional, and the contemnors do
not carry the keys to their jail cells in their own pockets.
16. Contempt. The ability to comply with a contempt order marks a divid-
ing line between civil and criminal contempt.
17. ____. In order for the punishment to retain its civil character, the con-
temnor must, at the time the sanction is imposed, have the ability to
purge the contempt by compliance and either avert punishment or, at any
time, bring it to an end.
18. Contempt: Sentences. A present inability to comply with a contempt
order is a defense, not necessarily to contempt, but to incarceration.
19. Constitutional Law: Criminal Law: Contempt: Sentences. An incor-
rect decision on the ability to comply with a contempt order—the
critical factor dividing civil from criminal contempt—increases the
risk of wrongful incarceration by depriving the defendant of the pro-
cedural protections that the Constitution would demand in a criminal
proceeding.
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SICKLER v. SICKLER
Cite as 293 Neb. 521
20. Contempt: Sentences: Due Process. Prospectively, a court that imposes
incarceration as part of civil contempt proceedings shall make express
findings regarding the contemnor’s ability to comply with the purge
order, in order to avoid inadvertent violations of due process rights and
for consistency of procedure for both represented and nonrepresented
indigent contemnors.
21. Contempt: Sentences: Proof. It is the contemnor who has the burden
to assert and prove the inability to comply with the contempt order to
avoid incarceration or to purge himself or herself of contempt.
22. Contempt: Sentences: Evidence. A contemnor may defend against
incarceration under a civil contempt order, but only upon a showing
of such inability by a preponderance of the evidence; that showing
entails attempts to exhaust all resources and assets or borrow sufficient
funds and the inability to thereby secure the funds to comply with the
purge order.
23. Contempt: Evidence. The contemnor is in the best position to know
whether the ability to pay is a consideration, and he or she has the best
access to the evidence on the issue.
24. Appeal and Error. Plain error is error plainly evident from the record
and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
25. Criminal Law: Contempt: Sentences: Time. When a contemnor is
required to serve a determinate sentence after a specified date if compli-
ance has not occurred by that date, and there is no provision for dis-
charge thereafter by doing what the contemnor had previously refused
to do, then the sentence is punitive as of that date.
26. Contempt: Sentences: Time. In the case of civil contempt involving
the use of incarceration as a coercive measure, a court may impose a
determinate sentence only if it includes a purge clause that continues so
long as the contemnor is imprisoned.
Appeal from the District Court for Buffalo County: M ark J.
Young, Judge. Affirmed as modified.
Kent A. Schroeder, of Ross, Schroeder & George, L.L.C.,
for appellant.
Marsha E. Fangmeyer, of Knapp, Fangmeyer, Aschwege,
Besse & Marsh, P.C., for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and K elch, JJ.
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Wright, J.
I. NATURE OF CASE
Steven Dale Sickler appeals from an order of contempt sanc-
tioning him with a determinate period of 90 days’ incarceration
if, within 17 days, he did not pay $37,234.84 to his ex-wife,
Madeline Loretta Sickler, now known as Madeline Loretta
Schmitz. The sum in question stems from the property divi-
sion awarding a percentage of Steven’s individual retirement
account (IRA) to Madeline. Madeline’s percentage had not
been transferred to her in the 14 years since the decree. Due
to withdrawals by Steven, of which Madeline was unaware,
the account no longer contains sufficient funds to satisfy
the award.
Steven argues that the order of contempt is an imprison-
ment for debt in violation of article I, § 20, of the Nebraska
Constitution. He also argues that the period of 17 days to purge
the contempt was unreasonable. The contempt and sanctions
order was stayed on condition that Steven file an appearance
bond, and Steven argues the requirement of an appearance
bond also violates article I, § 20, of the Nebraska Constitution.
II. BACKGROUND
1. Dissolution Decree
Madeline and Steven were divorced in April 2001. As part
of the property division, the court awarded to Madeline 18.6
percent of an IRA held under Steven’s name. The dissolution
decree listed the amount of the award to Madeline as $45,786.
The court denied the “request to reduce retirement benefits
for either party by anticipated but nevertheless speculative
tax consequences.”
The total balance for the IRA account in April 2001 was
$305,587.44. The court’s order made no reference to the need
for a qualified domestic relations order (QDRO) with respect
to the IRA.
Steven moved for a new trial. As a result of the motion, the
court adjusted the award of the IRA by decreasing Madeline’s
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award by $3,100 and increasing Steven’s award by $3,100.
Steven appealed the order but later dismissed his appeal.
2. October 2004 Negotiations
Nothing occurred until October 2004, when Madeline called
Steven about the fact that her percentage of the IRA still
needed to be transferred to her. Madeline had apparently been
confused about how to proceed with the transfer. Steven sent a
letter to Madeline stating that the reason she had not received
her share of the retirement account is that her attorney failed
to file a QDRO. Steven recognized Madeline’s share of the
retirement account was $45,786 and offered several options
for payment that were amenable to him. He wished to avoid
attorney fees. He mentioned opening and reassessing all life
insurance and retirement plans listed on the property state-
ment attached to the dissolution decree. He wanted credit for
student loans he had incurred on behalf of their children since
the decree.
3. October 2005 QDRO
Madeline did not accept any of Steven’s proposals for pay-
ment. A QDRO was filed in October 2005. It stated that the
dollar amount of benefits to be paid to Madeline was 18.6 per-
cent of Steven’s share of the IRA as of April 25, 2001, the date
of the decree of dissolution.
4. Motion to Set Aside QDRO
Steven moved to set aside the QDRO on the ground that
the amount stated in the QDRO was inconsistent with the dis-
solution decree as revised after the motion for new trial. At the
hearing on the motion, Steven’s counsel complained that the
QDRO should have been sought sooner.
5. A pril 2006 Order R egarding
Need for New QDRO
On April 18, 2006, the court vacated the QDRO filed in
October 2005. It explained that the matter was before the
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Cite as 293 Neb. 521
court “because of the failure of one or both parties to submit
a [QDRO] at the time the Court entered its amended decree”
of dissolution. The court found that a new QDRO should
be drafted and submitted by Madeline’s counsel, subject to
Steven’s approval as to form and content.
The court then made the following findings:
First the final decree entered by the Court awarding a
percentage of an IRA to each party means exactly what is
set forth in the Court’s order. Each party being awarded a
percentage of a particular asset then shares in the poten-
tial for gain or loss associated with that asset from the
date of division. The Court’s quantifying the value of the
percentage of the asset is solely for the purpose of insur-
ing that an equitable division of the property occurred
and is not intended to be an award of a dollar value to a
particular party.
As such, the Court finds that [Madeline’s] current
share of the IRA, upon division, is the original market
value of the asset plus or minus the performance of that
portion of the asset since the order of division, the final
journal entry.
6. Motion for Order to Show Cause
On June 6, 2006, Madeline moved for an order to show
cause why Steven should not be held in contempt for violating
the terms of the September 2001 dissolution decree by with-
drawing a total of $209,980 from the IRA.
7. June 2006 Hearing
A hearing was held on June 28, 2006, for the purposes of
conducting an evidentiary hearing with regard to the proposed
revised QDRO and the current value of the IRA, and to deter-
mine facts relevant to Madeline’s motion to show cause.
At the hearing, it was discovered that Steven had made
the following withdrawals from the IRA since the dissolution
decree, leaving the IRA with inadequate funds to cover the
property division award: $30,000 in August 2001, $10,000 in
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SICKLER v. SICKLER
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March 2002, $40,000 in April 2002, $20,000 in July 2002,
$30,000 in August 2002, and $79,980 in January 2005. After
the January 2005 withdrawal, the IRA account was left with
a balance of $13,115.25. By September 2005, the balance was
$4,748.18. Steven testified that that was the approximate bal-
ance as of the date of the hearing. The difference between the
balance after the withdrawal in January and the balance in
September is apparently due to fluctuations within the invest-
ments making up the IRA. The IRA had depreciated due to
market fluctuations by about $90,000 since the time of the dis-
solution decree.
Steven admitted that he made these withdrawals with the
knowledge that Madeline was awarded a percentage of the
IRA. Steven testified that he made no attempts to discern
whether Madeline had transferred her portion of the IRA out of
his accounts prior to making the withdrawals.
Madeline testified that she did not attempt to obtain her
share of the IRA directly from the bank, noting that the account
was in Steven’s name. She did not know that Steven was mak-
ing withdrawals from the IRA account.
8. July 2006 Contempt Order
The court found that Steven knew in October 2004, before
withdrawing approximately $80,000 from the IRA account,
that Madeline had not received her moneys from the account,
as required by the dissolution decree. The court reasoned that
such knowledge was clearly indicated in Steven’s letter to
Madeline in October 2004.
In an order dated July 10, 2006, the court found that “deple-
tion of the account by [Steven] with knowledge of the non-
payment to [Madeline] clearly places [Steven] in contempt
of court for willfully violating the court’s order requiring that
[Madeline] receive her proceeds from the account.” Steven
was ordered to pay Madeline $37,234.84. The court explained
that this amount represented 17.34 percent of all moneys
taken by Steven from the account and 17.34 percent of the
account balance.
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SICKLER v. SICKLER
Cite as 293 Neb. 521
9. August 2006 Motion for
Further Sanctions
On August 24, 2006, Madeline filed a motion for an order
imposing further contempt sanctions for the reason that Steven
had failed to comply with the July 2006 order to pay Madeline
$37,234.84.
10. M ay 2007 Assignment of
Expected Lawsuit Proceeds
On May 15, 2007, Steven assigned to Madeline a pro rata
share, not to exceed $37,234.84, of whatever proceeds Steven
received as a result of litigation he had filed. In exchange,
Madeline agreed to forbear from pursuing her motion for
further sanctions against Steven. Steven’s litigation involved
claims of malpractice against a law firm and an attorney
from another law firm, arising out of alleged negligence in
performing the “legal background for the franchises” Steven
owned. As a result of the alleged negligence, 15 lawsuits had
been filed against Steven for 15 out of the 21 franchises he
had sold.
11. Lawsuits End With No
Payment to M adeline
The lawsuit against the law firm eventually settled for
$2.2 million. The lawsuit against the attorney went to trial and
resulted in a verdict in the attorney’s favor. However, accord-
ing to Steven, $1.2 million of the settlement with the law firm
went to attorney fees and all remaining funds from the settle-
ment were consumed by the liens against him as a result of the
underlying suits relating to the 15 franchises. Steven claimed
that he still had outstanding judgments against him. No pay-
ment was made to Madeline pursuant to the assignment.
12. A pril 2014 Stipulation
for R epayment Plan
In April 2014, Madeline and Steven jointly filed a stipula-
tion for a repayment plan whereby Steven would fulfill his
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obligation to pay $37,234.84 by paying $6,000 “at the end of
each sixth month period” over a 4-year period, with an interest
rate of 2 percent on the outstanding balance.
In an order entered April 3, 2014, the court approved the
stipulation and ordered the parties to comply with the terms
thereof. The court explained that the matter was before it
due to Steven’s failure to comply with a court order that
he pay Madeline $37,234.84. Pursuant to the stipulation,
Madeline’s motion for further sanctions was dismissed with-
out prejudice.
13. February 2015 Motion for Further
Sanctions and Hearing
In February 2015, Madeline filed a new motion for fur-
ther sanctions due to the failure to make any payments under
the stipulation for repayment plan. A hearing was held on
the motion.
At the hearing on the motion, Steven’s attorney argued that
the IRA was not subject to the federal Employee Retirement
Income Security Act of 1974 and that thus, a QDRO was never
required in order for Madeline to transfer her share out of the
account. The implication was that Madeline wasted a lot of
time obtaining a QDRO that was never required.
Steven’s attorney also asserted that the July 2006 order
directing Steven to pay $37,234.84 to Madeline is “clearly
contrary” to the court’s April 2006 order pertaining to draft-
ing a new QDRO. This argument was apparently based on
the assertion that the April 2006 order was “quantifying the
value of the percentage of the asset” “solely for the purpose of
ensuring that an equitable division of the property occurred”
and was “not intended to be an award of a dollar value to a
particular party.”
Steven testified that he did not make any payments under the
2014 stipulation because a contract to work in Newfoundland,
Canada, earning $370,000 per year, fell through. Steven also
explained that he believed the stipulation “sidesteps the laws
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of the IRS,” because direct payments to Madeline allowed her
to avoid early withdrawal penalties. Lastly, Steven explained
that he did not pay under the stipulation because Madeline’s
attorney allegedly “lied to the Judge” about Steven’s deplet-
ing the IRA account, insofar as he had originally “never
touched that account that made up 25 percent of the value
of it.”
Madeline adduced testimony concerning Steven’s income in
the years since the 2006 contempt order. Steven testified that
he was employed in 2006, running his own franchise busi-
ness. After that, he was unemployed for about a year. He then
obtained a job as a sales manager for an electric company,
earning $79,000 a year. He worked for that company for about
11⁄2 years before obtaining employment as a project manager
for another electric company. He worked there for about 2
years, earning $125,000 per year. In 2013, Steven obtained a
1-year contract with an engineering and construction company
as a construction manager, under which contract he earned
$287,000. After the contract in Newfoundland fell through,
he was unemployed for 2 months. He then worked as a proj-
ect manager for an engineering company, earning $150,000
per year.
There was a 6-week gap between the 1-year contract with
the engineering and construction company and his employ-
ment at the time of the hearing. He was working as a con-
tractor and was being paid $60 per hour. He was anticipating
employment with another company, to begin in 2 weeks. He
expected to work as a construction manager earning $145,000
per year. His expectation was that he would be working there
long term.
Steven owned his home, but it was mortgaged. It was
unclear whether there was any equity in the home. He owned
a car, but it was unclear what liens were on the car. Steven
admitted that he had made no payments to comply with the
July 2006 order. Nor had he made any payments under the
stipulated payment plan.
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SICKLER v. SICKLER
Cite as 293 Neb. 521
14. June 2015 Order of Contempt
and Sanctions
In an order dated June 8, 2015, the court found that Steven
was still in contempt. The court ordered that, as further sanc-
tions, he must report on June 15 to serve a sentence of 90 days’
incarceration.
The sentence could be purged by payment in full of the
sum of $37,234.84 to Madeline on or before June 15, 2015.
If Steven failed to report on June 15, or failed to pay the sum
owed Madeline before that date, a bench warrant would be
issued for his arrest.
The order stated:
[T]he Court . . . finds that [Steven] is still in contempt and
as further sanctions, he shall report to the Buffalo County
Detention Center on June 15, 2015 at 9:00 a.m. to serve a
sentence of ninety (90) days incarceration. Said sentence
may be purged by payment in full of the monies owed
to [Madeline], the sum of $37,234.84, on or before June
15, 2015.
If [Steven] fails to report to the Buffalo County
Detention Center on June 15, 2015 or fails to pay the sum
owed to [Madeline] on or before that date, a bench war-
rant will be issued for his arrest.
(Emphasis supplied.)
At the hearing, the court had reasoned, “[Steven] may
have had some setbacks, and it certainly sounds like a course
of setbacks during the last eight years, but it’s not like he
wasn’t given an opportunity to purge by simply paying the
money.” The court also noted that it did not find particu-
larly relevant what Madeline may or may not have known
or done about transferring out her share of the IRA account
before Steven depleted the funds. The court did not make
any specific findings regarding Steven’s ability to pay a
lump sum of $37,234.84 within the timeframe specified by
the order.
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SICKLER v. SICKLER
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15. Motion to Stay Granted
On June 15, 2015, the court granted Steven’s motion to
stay the contempt and sanctions order. The stay was subject
to Steven’s posting a surety bond in the amount of $25,000
within 30 days of June 8, 2015, or his appearance to the jail
on further order of the court. Steven filed the appearance bond
on June 19.
16. A ppeal Filed
On July 2, 2015, Steven filed his notice of appeal of the
June 8 order imposing further sanctions.
III. ASSIGNMENTS OF ERROR
Steven assigns that the district court abused its discretion
in (1) finding Steven to be in civil contempt; (2) imposing an
unreasonable, arbitrary, capricious, and punitive sentence; (3)
setting parameters for Steven to purge himself that were impos-
sible to perform; and (4) requiring Steven to post an appear-
ance bond.
IV. STANDARD OF REVIEW
[1] In a civil contempt proceeding where a party seeks
remedial relief for an alleged violation of a court order,
an appellate court employs a three-part standard of review
in which the trial court’s (1) resolution of issues of law is
reviewed de novo, (2) factual findings are reviewed for clear
error, and (3) determinations of whether a party is in con-
tempt and of the sanction to be imposed is reviewed for abuse
of discretion.1
V. ANALYSIS
[2-4] This is an appeal from an order imposing further sanc-
tions for civil contempt in relation to a dissolution decree.
Civil contempt proceedings are instituted to preserve and
enforce the rights of private parties to a suit when a party
1
See Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012).
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fails to comply with a court order made for the benefit of the
opposing party.2 Willful disobedience is an essential element
of contempt; “willful” means the violation was committed
intentionally, with knowledge that the act violated the court
order.3 Outside of statutory procedures imposing a differ-
ent standard or an evidentiary presumption, the complainant
must prove all elements of contempt by clear and convinc-
ing evidence.4
[5-8] Contempt proceedings may both compel obedience to
orders and administer the remedies to which a court has found
the parties to be entitled.5 Through its inherent powers of con-
tempt, a court may order restitution for damages incurred as
a result of failure to comply with a past order.6 And a court’s
continuing jurisdiction over a dissolution decree includes the
power to provide equitable relief in a contempt proceeding.7
Where a situation exists which is contrary to the principles
of equity and which can be redressed within the scope of
judicial action, a court of equity will devise a remedy to meet
the situation.8
In its 2006 order of contempt, the court found that Steven
willfully violated the dissolution decree when he depleted
the funds of the IRA within 3 months of being informed by
Madeline that she had not yet received her share of the IRA
that was awarded to her. Recognizing that a rollover of funds
directly from Steven’s IRA into Madeline’s IRA was no l­onger
possible, the court devised that appropriate restitution for the
2
See, id.; Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782
N.W.2d 848 (2010), disapproved on other grounds, Hossaini v. Vaelizadeh,
supra note 1.
3
See Hossaini v. Vaelizadeh, supra note 1.
4
See, id.; Smeal Fire Apparatus Co. v. Kreikemeier, supra note 2.
5
See Smeal Fire Apparatus Co. v. Kreikemeier, supra note 2.
6
See id.
7
See id.
8
Strunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821 (2006).
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dissipation of the IRA account was payment to Madeline of
the sum of $37,234.84. Steven has delayed the imposition
of any further sanctions for contempt by assignment of the
proceeds from a lawsuit and a stipulation for payments. No
payments have been made to Madeline in the 9 years since the
2006 contempt order. In 2015, the court ordered imprisonment
as a further sanction for Steven’s continuing civil contempt.
Steven makes several arguments attacking the validity of
that order.
1. Prohibition of I mprisonment
Debt
for
[9] Steven’s principal contention is that imprisonment for
failing to pay restitution of funds that were awarded to an
ex-spouse in a dissolution decree is imprisonment for debt
in violation of article I, § 20, of the Nebraska Constitution.
Article I, § 20, states, “No person shall be imprisoned for debt
in any civil action on mesne or final process.” With the passage
of article I, § 20, Nebraska put an end to the “ancient practice
of seizing the person of a debtor as a means of coercing pay-
ment of a debt.”9
[10] Most courts do not allow “nonpayment contempt,”
which is the use of the court’s contempt power to threaten a
debtor with imprisonment for failure to comply with a court
order to turn money or property over to creditors.10 The courts
find such contempt orders violate constitutional prohibitions
of imprisonment for debt. Whether an obligation is a “debt”
depends on the origin and nature of the obligation and not on
the manner of its enforcement.11
9
Rosenbloom v. State, 64 Neb. 342, 346, 89 N.W. 1053, 1054 (1902).
10
Lea Shepard, Creditors’ Contempt, 2011 BYU L. Rev. 1509, 1543 (2011).
See, 16B Am. Jur. 2d Constitutional Law § 680 (2009); 17 C.J.S. Contempt
§ 185 (2011). See, also, e.g., Carter v. Grace Whitney Properties, 939
N.E.2d 630 (Ind. App. 2010); In re Byrom, 316 S.W.3d 787 (Tex. App.
2010).
11
16A C.J.S. Constitutional Law § 813 (2015).
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[11] The definition of “debt,” for the purposes of consti-
tutional prohibitions of imprisonment for debt, means more
than just a specific sum of money due or owing from one to
another.12 “Debt,” as stated in state constitutional prohibitions
of imprisonment for debt, is generally viewed as an obligation
to pay money from the debtor’s own resources, which arose
out of a consensual transaction between the creditor and the
debtor.13 Thus, the prohibition applies to money directly due
under a contract, to judgment debt arising from contractual
debts, to attempts to specifically enforce creditor-debtor agree-
ments, and to damages for breach of any form of contrac-
tual obligation.14
[12] In Rosenbloom v. State,15 we said that Neb. Const. art. I,
§ 20, “means just what it says, and, when considered in the
light of familiar history, it seems hardly possible to misunder-
stand it. It deals only with procedure in civil actions,—actions
having for their object the collection of debts.” As we will
explain in more detail, we agree with Madeline that contempt
for noncompliance with a property division award in a dissolu-
tion decree does not originate in an action for the collection of
debt, or from an obligation, through a consensual transaction
between the creditor and the debtor, to pay money from the
debtor’s own resources. Therefore, enforcement through con-
tempt of such property division does not violate Neb. Const.
art. I, § 20.
It has been said that “debt,” as specified in state constitu-
tional prohibitions of imprisonment for debt, does not gener-
ally include enforcement of equitable orders.16 We have held
that child support obligations bear no “resemblance whatever
12
Id.
13
Id.
14
16A C.J.S., supra note 11, § 814.
15
Rosenbloom v. State, supra note 9, 64 Neb. at 346, 89 N.W. at 1054.
16
See 17 Am. Jur. 2d Contempt § 205 (2014).
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to a debt, and therefore the Constitution does not forbid
imprisonment for the defendant’s refusal to obey the order of
the court” to pay child support.17 Likewise, we have held that
an order of temporary alimony is not debt under article I, § 20,
but is instead an order designed to secure the per­formance of
a legal duty in which the public has an interest.18 We further
reasoned that such powers are part of the inherent equity pow-
ers of the dissolution court.19 We have said that attorney fees
and costs arising out of a dissolution action are not debt under
article I, § 20, on similar grounds.20
The courts may, through the exercise of their equitable pow-
ers, enforce orders made in dissolution proceedings. We have
held that a party may use contempt proceedings to enforce
a property settlement agreement incorporated into a dissolu-
tion decree. But we have never directly addressed whether
a contempt order for failure to abide by a property division
runs afoul of the constitutional prohibition against imprison-
ment for debt, when the court has ordered imprisonment as a
sanction.21 In Grady v. Grady,22 we affirmed a contempt order
sentencing the ex-husband to 90 days in jail for diverting funds
from stocks awarded to his ex-wife in a dissolution decree.
We could have, but did not, notice any plain error with regard
to the order of incarceration. Grady implicitly stands for the
proposition that obligations arising out of the property division
in a dissolution action are not debt under article I, § 20, of the
Nebraska Constitution.
17
Fussell v. State, 102 Neb. 117, 166 N.W. 197, 199 (1918).
18
Cain v. Miller, 109 Neb. 441, 191 N.W.2d 704 (1922).
19
See id.
20
Jensen v. Jensen, 119 Neb. 469, 229 N.W. 770 (1930).
21
See, Smeal Fire Apparatus Co. v. Kreikemeier, supra note 2; Novak
v. Novak, 245 Neb. 366, 513 N.W.2d 303 (1994), overruled on other
grounds, Smeal Fire Apparatus Co. v. Kreikemeier, supra note 2; Grady v.
Grady, 209 Neb. 311, 307 N.W.2d 780 (1981).
22
Grady v. Grady, supra note 21.
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We now expressly hold what we implied in Grady—that
imprisonment for contempt for the failure to comply with the
order of property division in a dissolution decree does not vio-
late article I, § 20, of the Nebraska Constitution.
Many other jurisdictions similarly hold that imprisonment
under contempt proceedings relating to a property division
award does not violate state constitutional prohibitions of
imprisonment for debt.23
We agree with the reasoning of these courts that property
divisions in dissolution decrees arise from the existence of the
marital status, and not from a business transaction; thus, prop-
erty divisions are “state concerns.”24 The public interest treats
property divisions in dissolution decrees as equitable determi-
nations of the rights and obligations of the marital couple to
23
See, White v. Taylor, 19 Ark. App. 104, 717 S.W.2d 497 (1986); Harvey
v. Harvey, 153 Colo. 15, 384 P.2d 265 (1963); Froehlich v. Froehlich, 297
Ga. 551, 775 S.E.2d 534 (2015); Phillips v. District Court of Fifth Judicial
District, 95 Idaho 404, 509 P.2d 1325 (1973); In re Marriage of Lenger,
336 N.W.2d 191 (Iowa 1983); Switzer v. Switzer, 460 So. 2d 843 (Miss.
1984); Cobb v. Cobb, 54 N.C. App. 230, 282 S.E.2d 591 (1981); Harris
v. Harris, 58 Ohio St. 2d 303, 390 N.E.2d 789 (1979); Sinaiko v. Sinaiko,
445 Pa. Super. 56, 664 A.2d 1005 (1995); Hanks v. Hanks, 334 N.W.2d
856 (S.D. 1983); Kanzee v. Kanzee, 668 P.2d 495 (Utah 1983); Decker v.
Decker, 52 Wash. 2d 456, 326 P.2d 332 (1958); Schroeder v. Schroeder,
100 Wis. 2d 625, 302 N.W.2d 475 (1981). See, also, Dowd v. Dowd, 96
Conn. App. 75, 899 A.2d 76 (2006); In re Marriage of Wiley, 199 Ill. App.
3d 223, 556 N.E.2d 788, 145 Ill. Dec. 170 (1990); Wisdom v. Wisdom, 689
S.W.2d 82 (Mo. App. 1985); Lamb v. Lamb, 848 P.2d 582 (Okla. App.
1992); Brooks v. Brooks, 277 S.C. 322, 286 S.E.2d 669 (1982). But see,
Johnson v. Johnson, 22 Ariz. App. 69, 523 P.2d 515 (1974); Kadanec v.
Kadanec, 765 So. 2d 884 (Fla. App. 2000); Kimbrell v. Secrist, 613 N.E.2d
451 (Ind. App. 1993); Haughton v. Haughton, 319 Md. 460, 573 A.2d
42 (1990); Guynn v Guynn, 194 Mich. App. 1, 486 N.W.2d 81 (1992);
Burgardt v. Burgardt, 474 N.W.2d 235 (Minn. App. 1991); Hall v. Hall,
114 N.M. 378, 838 P.2d 995 (N.M. App. 1992); Dvorak v. Dvorak, 329
N.W.2d 868 (N.D. 1983).
24
See, e.g., Phillips v. District Court of Fifth Judicial District, supra note
23; Haley v. Haley, 648 S.W.2d 890 (Mo. App. 1982); Oedekoven v.
Oedekoven, 538 P.2d 1292 (Wyo. 1975).
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one another. The division of marital accumulations as a result
of joint efforts and economies is treated no differently than
alimony.25 The obligations are not money owed as a debt, but
are instead “status obligations”—what we consider to be the
equitable division of property acquired during the marriage.26
We also find persuasive the reasoning that orders enforcing
the division of property under a dissolution action are merely
requiring the contemnor to surrender property that already
belongs to the ex-spouse, likening the contemnor to a construc-
tive trustee rather than a debtor.27 The court is not ordering the
contemnor to pay money out of his or her own resources, but
is merely mandating that the person return the other person’s
resources that resided in the marital estate.28
We find no merit to Steven’s contention that, because the
contempt stems from a property division in a dissolution
decree, incarceration as a sanction for the contempt runs afoul
of our constitutional prohibition of imprisonment for debt. We
similarly find no merit to Steven’s contention that the appear-
ance bond violated article I, § 20.
2. Willfulness
Steven’s next argument appears to be that the court erred in
finding his conduct to be willful. Steven argues that through
the contempt order, he was being “blamed for the failure of
[Madeline] to segregate the IRA into two different accounts.”29
Steven points out that it took Madeline over 4 years to obtain
a QDRO and that, because the IRA is not a financial account
governed by the Employee Retirement Income Security Act,
division of an IRA can be accomplished simply by presenting
25
See Harris v. Harris, supra note 23.
26
See, id.; Richard E. James, Putting Fear Back Into the Law and Debtors
Back Into Prison: Reforming the Debtors’ Prison System, 42 Washburn
L.J. 143 (2002).
27
See Ex parte Gorena, 595 S.W.2d 841 (Tex. 1979).
28
See In re Estate of Downs, 300 S.W.3d 242 (Mo. App. 2009).
29
Brief for appellant at 5.
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the dissolution decree to the issuer of the IRA. This argument
equates with a claim that leaving the money in Steven’s control
caused him to take the money that belonged to Madeline. This
argument has no equitable basis and is clearly without merit.
We find no error in the court’s finding that Steven willfully
violated the dissolution decree. Without Madeline’s or the dis-
solution court’s knowledge, Steven made numerous withdraw-
als from the IRA. He made one withdrawal in 2001 of $30,000.
In 2002, he made four withdrawals in increments of $10,000,
$20,000, $30,000, and $40,000. The sum total of the withdraw-
als in 2002 and 2003 left the IRA with insufficient funds to
satisfy the dissolution decree.
But within 3 months of Madeline’s 2005 inquiries about
finally transferring her share of the IRA to an account in her
name, Steven made his largest single withdrawal, $79,980,
which reduced the amount of the IRA to a level grossly insuf-
ficient to satisfy the property division award. The court did
not err in finding that at the time of this withdrawal, Steven
was aware that Madeline’s share of the IRA account had not
yet been transferred to her possession. The court did not err in
finding that in 2005, Steven acted willfully when he withdrew
moneys from the IRA account, which by virtue of the dissolu-
tion decree belonged to Madeline.30
We note that the issue of Steven’s willfulness would ordi­
narily be considered the law of the case from the time of the
June 2006 order, which was not appealed. The law of the case
doctrine reflects the principle that an issue that has been liti-
gated and decided in one stage of a case should not be reliti-
gated at a later stage.31 As we stated in Smeal Fire Apparatus
Co. v. Kreikemeier,32 an order of contempt in a postjudgment
proceeding to enforce a previous final judgment is a final
order, because it affects substantial rights and is made upon
30
See Hossaini v. Vaelizadeh, supra note 1.
31
Smeal Fire Apparatus Co. v. Kreikemeier, supra note 2.
32
Id.
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a summary application after judgment. But the 2006 order
was issued before our decision in Smeal Fire Apparatus Co.
And, before that opinion, our case law held that civil contempt
orders were not final orders and could be challenged only in
habeas corpus proceedings.33 We conclude the court did not err
in finding Steven acted willfully.
Steven’s allegations that Madeline should have withdrawn
the funds earlier do not negate his willful disobedience of a
decree that clearly awarded these funds to Madeline. Any infer-
ence of laches or any other equitable defense to his dissipation
lacks any merit, and Steven could not be said to have come to
the court with clean hands.34
3. Criminal Versus Civil Contempt
Lastly, Steven argues that the 17-day period, in which he
must raise the $37,234.84 or else suffer 90 days’ incarceration
as further sanction for his continuing contempt, is unreason-
able. Steven argues there was insufficient evidence that he
would be able to pay that lump sum within the time period
provided in the order and, thus, that he did not have the keys
to his own jail cell.35
While we agree that the present ability to comply with the
purge provision was essential for the order to retain its civil
character in these civil proceedings, it was Steven’s burden to
raise and prove his inability to comply. Steven did not meet
that burden.
[13-15] A court can impose criminal, or punitive, sanctions
only if the proceedings afford the protections offered in a
criminal proceeding.36 A criminal or punitive sanction is invalid
33
See, e.g., Allen v. Sheriff of Lancaster Cty., 245 Neb. 149, 511 N.W.2d
125 (1994); Dunning v. Tallman, 244 Neb. 1, 504 N.W.2d 85 (1993); and
Maddux v. Maddux, 239 Neb. 239, 475 N.W.2d 524 (1991) (cases over­
ruled by Smeal Fire Apparatus Co. v. Kreikemeier, supra note 2).
34
See Olsen v. Olsen, 265 Neb. 299, 657 N.W.2d 1 (2003).
35
See Allen v. Sheriff of Lancaster Cty., supra note 33.
36
Smeal Fire Apparatus Co. v. Kreikemeier, supra note 2.
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if imposed in a proceeding that is instituted and tried as civil
contempt, because it lacks the procedural protections that the
Constitution would demand in a criminal proceeding.37 A civil
sanction is coercive and remedial; the contemnors “‘“carry the
keys of their [jail cells] in their own pockets,”’”38 because the
sentence is conditioned upon continued noncompliance and is
subject to mitigation through compliance.39 In contrast, a crimi-
nal sanction is punitive; the sentence is determinate and uncon-
ditional, and the contemnors do not carry the keys to their jail
cells in their own pockets.
(a) Present Ability to Comply
[16-18] We have recognized that when a purge order
involves payment of money, the sum required to purge one-
self of contempt must be within the contemnor’s present abil­
ity to pay, taking into consideration the assets and financial
condition of the contemnor and his or her ability to raise
money.40 Otherwise, the contempt becomes punitive rather
37
See, Turner v. Rogers, 564 U.S. 431, 131 S. Ct. 2507, 180 L. Ed. 2d 452
(2011); In re Contempt of Sileven, 219 Neb. 34, 361 N.W.2d 189 (1985),
overruled on other grounds, Smeal Fire Apparatus Co. v. Kreikemeier,
supra note 2. See, also, e.g., Hicks v. Feiock, 485 U.S. 624, 108 S. Ct.
1423, 99 L. Ed. 2d 721 (1988); Shillitani v. United States, 384 U.S. 364,
86 S. Ct. 1531, 16 L. Ed. 2d 622 (1966).
38
Hicks v. Feiock, supra note 37, 485 U.S. at 633.
39
See, Hicks v. Feiock, supra note 37; Maddux v. Maddux, supra note 33.
40
See, Allen v. Sheriff of Lancaster Cty., supra note 33; Maddux v. Maddux,
supra note 33. See, also, In re Lawrence, 279 F.3d 1294 (11th Cir. 2002);
In re Falck, 513 B.R. 617 (S.D. Fla. 2014); Taylor v. Johnson, 764 So. 2d
1281 (Ala. Civ. App. 2000); McVay v. Johnson, 727 P.2d 416 (Colo. App.
1986); Ponder v. Ponder, 438 So. 2d 541 (Fla. App. 1983); Jones v. State,
351 Md. 264, 718 A.2d 222 (1998); Gonzalez v Gonzalez, 121 Mich. App.
289, 328 N.W.2d 365 (1982); Newell v. Hinton, 556 So. 2d 1037 (Miss.
1990); Calloway v. Calloway, 406 Pa. Super. 454, 594 A.2d 708 (1991);
In re Gawerc, 165 S.W.3d 314 (Tex. 2005); Krochmalny v. Mills, 186 Vt.
645, 987 A.2d 318 (2009); In re King, 110 Wash. 2d 793, 756 P.2d 1303
(1988); State, Dept. of Family Services v. Currier, 295 P.3d 837 (Wyo.
2013); 27C C.J.S. Divorce § 1132 (2005).
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than coercive.41 As the U.S. Supreme Court said in Turner v.
Rogers,42 it is the ability to comply with a contempt order that
marks a dividing line between civil and criminal contempt. In
order for the punishment to retain its civil character, the con-
temnor must, at the time the sanction is imposed, have the abil-
ity to purge the contempt by compliance and either avert pun-
ishment or, at any time, bring it to an end.43 A present inability
to comply with a contempt order is a defense, not necessarily
to contempt, but to incarceration.44
A past ability to comply with an order does not show a
present ability to purge the contempt.45 Accordingly, while
deliberate disposal of financial resources to avoid compliance
with an order may be willful behavior justifying a finding
of contempt and incarceration under criminal contempt pro-
ceedings, such a person cannot be incarcerated under a civil
contempt proceeding unless he or she has the present ability
to pay the purge amount when incarcerated.46 Otherwise, that
41
See Gonzalez v Gonzalez, supra note 40.
42
Turner v. Rogers, supra note 37. See, also, e.g., Hicks v. Feiock, supra
note 37.
43
See, Allen v. Sheriff of Lancaster Cty., supra note 33; Com. v. Ivy, 353
S.W.3d 324 (Ky. 2011) (citing Shillitani v. United States, supra note 37).
See, also, Turner v. Rogers, supra note 37; Hicks v. Feiock, supra note 37.
44
Riser v. Peterson, 566 So. 2d 210 (Miss. 1990). See, also, Allen v. Sheriff
of Lancaster Cty., supra note 33; Com. v. Ivy, supra note 43; Turner v.
Rogers, supra note 37; Hicks v. Feiock, supra note 37.
45
See, Rawlings v. Rawlings, 362 Md. 535, 766 A.2d 98 (2001); Howard v.
Howard, 913 So. 2d 1030 (Miss. App. 2005). See, also, Turner v. Rogers,
supra note 37; Hicks v. Feiock, supra note 37; Allen v. Sheriff of Lancaster
Cty., supra note 33; Com. v. Ivy, supra note 43; Riser v. Peterson, supra
note 44.
46
See, Ponder v. Ponder, supra note 40; Wells v. State, 474 A.2d 846 (Me.
1984); Howard v. Howard, supra note 45; 27C C.J.S., supra note 40. See,
also, United States v. Rylander, 460 U.S. 752, 103 S. Ct. 1548, 75 L. Ed.
2d 521 (1983).
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person does not have the keys to his or her jail cell.47 Civil
contempt is by its very nature inapplicable to one who is
powerless to comply with the court order.48 Only criminal con-
tempt can rely solely on a past ability to comply accompanied
by a past refusal to do so.49
(b) Need for Explicit Findings on
Present Ability to Comply
[19] In Turner v. Rogers, the U.S. Supreme Court held that
an indigent defendant in civil contempt proceedings must be
appointed counsel or benefit from alternative procedures such
as notice, hearing, and use of a form to elicit relevant finan-
cial information and that there must be an express finding by
the court that the defendant has the ability to pay.50 The court
explained that such procedures are required, because an incor-
rect decision on the ability to comply with a contempt order—
the critical factor dividing civil from criminal contempt—
increases the risk of wrongful incarceration by depriving the
defendant of the procedural protections that the Constitution
would demand in a criminal proceeding.51
[20] Given the importance of the ability to comply in dis-
tinguishing between civil and criminal contempt and its due
process implications, several jurisdictions hold that a court that
imposes incarceration as part of civil contempt proceedings
47
See id.
48
Mayo v. Mayo, 173 Vt. 459, 786 A.2d 401 (2001). See, also, Ponder v.
Ponder, supra note 40; Wells v. State, supra note 46; Howard v. Howard,
supra note 45; 27C C.J.S., supra note 40. See, also, United States v.
Rylander, supra note 46.
49
Wells v. State, supra note 46. See, also, United States v. Rylander, supra
note 46; Ponder v. Ponder, supra note 40; Howard v. Howard, supra note
45; Mayo v. Mayo, supra note 48; 27C C.J.S., supra note 40.
50
Turner v. Rogers, supra note 37.
51
Id. See, also, e.g., Hicks v. Feiock, supra note 37.
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must make express findings regarding the contemnor’s abil-
ity to comply with the purge order, regardless of whether the
contemnor is indigent.52 We agree that, prospectively, this is
the best approach in order to avoid inadvertent violations of
due process rights and for consistency of procedure for both
represented and nonrepresented indigent contemnors.
(c) Burden of Production and
Persuasion on Contemnor
Steven was represented, and he did not claim to be indigent.
This case is somewhat atypical insofar as the finding of con-
tempt came years before the order imposing incarceration as
further sanctions for such continuing contempt. More often, an
order of incarceration for civil contempt will be contemporane-
ous with a finding of willfulness, which is at that moment often
commensurate to the ability to comply. Given the uniqueness
of the facts presented and the fact that our ruling regarding
explicit findings on the present ability to comply is prospec-
tive only, the court did not commit plain error in failing to sua
sponte make findings on Steven’s ability to comply at the time
of the 2015 order.
[21,22] And Steven did not sufficiently raise and prove
the inability to comply as a defense to the order. In Maddux
v. Maddux,53 we said it is the contemnor who has the burden
to assert and prove the inability to comply with the contempt
order to avoid incarceration or to purge himself or herself of
contempt. We agree with other courts that have found that
a contemnor may defend against incarceration under a civil
52
See, Wagley v. Evans, 971 A.2d 205 (D.C. App. 2009); Bowen v. Bowen,
471 So. 2d 1274 (Fla. 1985); In re Adam, 105 Haw. 507, 100 P.3d 77
(Haw. App. 2004); Poras v. Pauling, 70 Mass. App. 535, 874 N.E.2d 1127
(2007); In re Brown, 12 S.W.3d 398 (Mo. App. 2000); Clark v. Gragg, 171
N.C. App. 120, 614 S.E.2d 356 (2005); Mundlein v. Mundlein, 676 N.W.2d
819 (S.D. 2004); Russell v. Armitage, 166 Vt. 392, 697 A.2d 630 (1997).
53
See Maddux v. Maddux, supra note 33. See, also, Liming v. Damos, 2012
Ohio 4783, 133 Ohio St. 3d 509, 979 N.E.2d 297 (2012).
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contempt order, but only upon a showing of such inability by
a preponderance of the evidence; that showing entails attempts
to exhaust all resources and assets or borrow sufficient funds
and the inability to thereby secure the funds to comply with
the purge order.54 The burden of both production and persua-
sion is on the contemnor. The contemnor must be afforded only
the opportunity, before being incarcerated, to demonstrate the
inability to comply.
[23] Unlike a showing of willful noncompliance with a prior
order at a specific date, it would be particularly difficult for a
complainant to bear the burden of establishing the contemnor’s
financial status on the particular day of an order for incar-
ceration as further sanctions for contempt.55 And it would be
impractical for the court or the complainant to bear the burden
of raising and proving the ability to comply during a period of
incarceration. The contemnor is in the best position to know
whether the ability to pay is a consideration, and he or she has
the best access to the evidence on the issue.56
Furthermore, a finding of willfulness with regard to the
underlying contempt, proved by the complainant by clear and
convincing evidence, is sufficient to shift the burden to the
54
See, Cross v. Ivester, 315 Ga. App. 760, 728 S.E.2d 299 (2012); Hughes v.
Dept. of Human Resources, 269 Ga. 587, 502 S.E.2d 233 (1998). See, also,
U.S. v. Butler, 211 F.3d 826 (4th Cir. 2000); Huber v. Marine Midland
Bank, 51 F.3d 5 (2d Cir. 1995); CFTC v. Wellington Precious Metals, Inc.,
950 F.2d 1525 (11th Cir. 1992); McMorrough v. McMorrough, 930 So. 2d
511 (Ala. Civ. App. 2005); Wagley v. Evans, supra note 52; Nab v. Nab,
114 Idaho 512, 757 P.2d 1231 (Idaho App. 1988); Com. v. Ivy, supra note
43; Jones v. State, supra note 40; Newell v. Hinton, supra note 40; James
Talcott Factors v Larfred, Inc., 115 A.D.2d 397, 496 N.Y.S.2d 27 (1985);
In re Mott, 137 S.W.3d 870 (Tex. App. 2004); In re King, supra note 40;
Deitz v. Deitz, 222 W. Va. 46, 659 S.E.2d 331 (2008). But see, Bresch v.
Henderson, 761 So. 2d 449 (Fla. App. 2000); Wells v. State, supra note
46; Lambert ex rel. Estate of Lambert v. Beede, 175 Vt. 610, 830 A.2d 133
(2003).
55
Arrington v. Human Resources, 402 Md. 79, 935 A.2d 432 (2007).
56
See, id.; State ex rel Mikkelsen v. Hill, 315 Or. 452, 847 P.2d 402 (1993).
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contemnor to show by a preponderance of the evidence an
inability to comply, in the event the sanctions for contempt
include incarceration.57
The contemnor must be given an opportunity to raise the
issue of the inability to comply. And, as stated, the court shall
in the future also make findings relating to the issue of the abil-
ity to comply before the contemnor is incarcerated. But such
findings will take into account the fact that the contemnor has
the burden to raise and prove this defense.
Given the evidence demonstrating Steven’s substantial
financial resources and Steven’s failure to object on due proc­
ess grounds below, we find no reversible error based on the
argument that the 17-day period in which to garner the funds
required to purge the contempt was unreasonable. We find
unavailing Steven’s assertion that “[n]o reasonable or fair
minded person would conclude that [$37,234.84] could be
raised in that amount of time unless there was specific evi-
dence that the contemnor had sufficient funds on deposit that
could be immediately withdrawn and paid to the court.”58 No
such presumption exists isolated from the evidence. He has had
over a decade to secure and pay his obligation and, on numer-
ous occasions, has promised payment, including a promise to
pay $6,000 in semiannual installments. The time for honoring
that promise has come and gone without payment. Steven nei-
ther raised nor proved his inability to pay; therefore, the order
of incarceration in these civil contempt proceedings did not
violate due process on the ground that Steven lacked the abil-
ity to obtain $37,234.84 within 17 days. And, because further
sanctions were stayed pending this appeal, Steven has been
given additional time to acquire the purge amount set forth in
the 2006 contempt order and reiterated in the 2015 order for
further sanctions.
57
See Kanzee v. Kanzee, supra note 23.
58
Brief for appellant at 10-11.
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(d) Determinate Sentence Without
Purge Clause Was Plain Error
[24] We find plain error in one important aspect of the
district court’s 2015 order for further sanctions. The order of
incarceration, insofar as it provides no means to purge the con-
tempt after the 90-day period of incarceration goes into effect,
is an error plainly evident from the record. By unmistakably
imposing a criminal sanction in civil proceedings, such order
damages the fairness of the judicial process. Plain error is error
plainly evident from the record and of such a nature that to
leave it uncorrected would result in damage to the integrity,
reputation, or fairness of the judicial process.59
[25,26] We have specifically held in reviewing a similar
order that when a contemnor is required to serve a determinate
sentence after a specified date if compliance has not occurred
by that date, and there is no provision for discharge thereafter
by doing what the contemnor had previously refused to do,
then the sentence is punitive as of that date.60 In circumstances
where there is no provision for purging the contempt after a
certain date, the contemnor no longer holds the keys to his or
her jail cell as of that date.61 The order ceases to be coercive,
because the jail sentence is no longer subject to mitigation.62 In
the case of civil contempt involving the use of incarceration as
a coercive measure, a court may impose a determinate sentence
only if it includes a purge clause that continues so long as the
contemnor is imprisoned.63
Here, the court failed to include the ability to purge after
June 15, 2015. The court provided that Steven could avoid
59
Cain v. Custer Cty. Bd. of Equal., 291 Neb. 730, 868 N.W.2d 334 (2015);
State v. Kays, 289 Neb. 260, 854 N.W.2d 783 (2014).
60
Maddux v. Maddux, supra note 33. See, also, Hicks v. Feiock, supra note
37. But see Peters-Riemers v. Riemers, 674 N.W.2d 287 (N.D. 2004).
61
See Hicks v. Feiock, supra note 37.
62
Id.
63
See, Hicks v. Feiock, supra note 37; Maddux v. Maddux, supra note 33.
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Nebraska A dvance Sheets
293 Nebraska R eports
SICKLER v. SICKLER
Cite as 293 Neb. 521
the 90-day determinate sentence only “by payment in full of
the monies owed to [Madeline], the sum of $37,234.84, on or
before June 15, 2015.” Taken literally, the order provides that
after June 15, Steven would no longer hold the keys to his jail
cell, as is required in civil contempt. We conclude this simply
was not the court’s intention. We modify the 2015 order by
adding to the end of the order the following: “Said sentence
may be purged at any time by payment in full of the monies
owed to Madeline, in the sum of $37,234.84.”
VI. CONCLUSION
We find no merit to Steven’s assignments of error. But
because these were civil proceedings, we modify the 2015
order so as to permit Steven to purge the contempt at any time
during his period of incarceration. As so modified, we affirm
the order of the district court.
A ffirmed as modified.