State on behalf of Maria B. & Renee B. v. Kyle B. , 298 Neb. 759 ( 2018 )


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    STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.
    Cite as 
    298 Neb. 759
    State        of Nebraska on behalf of M ariah B.             and
    R enee B., minor children, appellee,
    v. Kyle B., appellant.
    ___ N.W.2d ___
    Filed January 26, 2018.   No. S-16-1142.
    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 (1)
    the trial court’s resolution of issues of law is reviewed de novo, (2) the
    trial court’s factual findings are reviewed for clear error, and (3) the trial
    court’s determinations of whether a party is in contempt and of the sanc-
    tion to be imposed are reviewed for abuse of discretion.
    2.	 Contempt: Due Process: Judgments: Appeal and Error. Though the
    ability to pay the purge amount in a civil contempt proceeding is a fac-
    tual question that is reviewed for clear error, whether the facts result in
    a due process violation is a question of law.
    3.	 Contempt: Words and Phrases. Civil contempt requires willful dis-
    obedience as an essential element. “Willful” means the violation was
    committed intentionally, with knowledge that the act violated the
    court order.
    4.	 Contempt. If it is impossible to comply with the order of the court, the
    failure to comply is not willful.
    5.	 Words and Phrases: Appeal and Error. Willfulness is a factual deter-
    mination to be reviewed for clear error.
    6.	 Contempt: Proof: Evidence: Presumptions. Outside of statutory pro-
    cedures imposing a different standard, it is the complainant’s burden
    to prove civil contempt by clear and convincing evidence and without
    any presumptions.
    7.	 Contempt: Presumptions: Child Support. Neb. Rev. Stat. § 42-358(3)
    (Reissue 2016) provides that a rebuttable presumption of contempt shall
    be established if a prima facie showing is made that court-ordered child
    or spousal support is delinquent.
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    STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.
    Cite as 
    298 Neb. 759
    8.	 ____: ____: ____. Necessarily, the rebuttable presumption of contempt
    provided by Neb. Rev. Stat. § 42-358(3) (Reissue 2016) encompasses
    the essential element of willfulness.
    9.	 Contempt: Evidence: Child Support. In contempt proceedings, both
    Neb. Rev. Stat. § 42-358(3) (Reissue 2016) and logic dictate that a valid
    child support order is evidence of the parent’s ability to pay the amount
    specified therein.
    10.	 Child Support. The parent’s ability to pay is an important consider-
    ation in setting the amount of a child support order.
    11.	 Child Support: Rules of the Supreme Court: Presumptions. Child
    support established under the Nebraska Child Support Guidelines is
    presumed correct, unless one or both parties present sufficient evidence
    to rebut that presumption.
    12.	 Trial: Witnesses: Evidence. Triers of fact have the right to test the
    credibility of witnesses by their self-interest and to weigh it against the
    evidence, or the lack thereof.
    13.	 Constitutional Law: Criminal Law: Contempt: Due Process. A
    criminal or punitive sanction is invalid if imposed in a proceeding
    that is instituted and tried as civil contempt, because it lacks the pro-
    cedural protections that the Constitution would demand in a criminal
    proceeding.
    14.	 Contempt: Sentences. A present inability to comply with a contempt
    order is a defense, not necessarily to contempt, but to the sanction of
    incarceration.
    15.	 Contempt: Judgments. When a purge order involves payment of
    money, the sum required to purge oneself of contempt must be within
    the contemnor’s ability to pay within the time period provided in the
    order, taking into consideration the assets and financial condition of the
    contemnor and his or her ability to raise money.
    16.	 Contempt. Contemnors in civil contempt must carry the keys of their
    jail cells in their own pockets.
    17.	 Contempt: Presumptions: Child Support. The statutory presumption
    of contempt under Neb. Rev. Stat. § 42-358(3) (Reissue 2016) is inap-
    plicable to the question of whether the purge plan is punitive.
    18.	 Contempt: Judgments. Despite any overlap with the finding of willful
    disobedience in the underlying contempt, a court that imposes incarcera-
    tion as part of civil contempt proceedings shall make express findings
    regarding the contemnor’s ability to comply with the purge order.
    19.	 Contempt: Proof. It is the contemnor who has the burden to assert and
    prove the inability to comply with the contempt order as a defense to
    incarceration.
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    STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.
    Cite as 
    298 Neb. 759
    20.	 ____: ____. The burden of both production and persuasion is on the
    contemnor to show the present inability to comply.
    21.	 ____: ____. A showing of inability to comply with a purge order
    entails attempts to exhaust all resources and assets or borrow sufficient
    funds and the inability to thereby secure the funds to comply with
    the order.
    22.	 Contempt. The contemnor’s inability to comply with a contempt order
    cannot be voluntarily created, for example by not diligently seeking a
    job at one’s earning potential.
    23.	 ____. The inability-to-pay threshold for determining that the contemnor
    lacks the keys to his or her own jail cell is higher than the indigence
    threshold for appointing counsel. Thus, a finding of indigency for
    purposes of retaining legal counsel does not preclude a finding that
    the contemnor is able to pay whatever purge amount has been set by
    the court.
    24.	 Child Support. The support of one’s children is a fundamental obliga-
    tion which takes precedence over almost everything else.
    Appeal from the District Court for Lancaster County: K evin
    R. McM anaman, Judge. Affirmed.
    Nancy R. Wynner, of Olson, Zalewski & Wynner, L.L.P.,
    for appellant.
    Joe Kelly, Lancaster County Attorney, and Jason M. Cooper
    and Braden W. Storer, for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
    Funke, JJ.
    Heavican, C.J.
    NATURE OF CASE
    A father appeals from an order of civil contempt for fail-
    ure to pay child support. He was found indigent for purposes
    of appointment of counsel in the contempt proceedings. He
    asserts that he did not willfully disobey the support order.
    Further, he argues that the purge plan set forth in the contempt
    order is impossible to perform, making it a punitive rather than
    coercive sanction. We affirm.
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    STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.
    Cite as 
    298 Neb. 759
    BACKGROUND
    Paternity and Child
    Support Order
    In a paternity action filed by the State due to the involve-
    ment of the “Title IV-D Division”1 of the Department of
    Health and Human Services (DHHS), Kyle B. was established
    as the father of Mariah B. and Renee B. Genetic testing had
    determined with a probability of 99.999 percent that Kyle was
    the biological father of the children.
    Kyle was ordered to pay $230 in child support per month
    beginning on December 1, 2015. The amount of Kyle’s monthly
    child support obligation was established in accordance with the
    child support guidelines. The district court referee calculated
    that Kyle was capable of earning $8 per hour and of work-
    ing 40 hours per week, for a total monthly earning capacity
    of $1,387. By failing to respond to the State’s request for
    admissions, Kyle was deemed to have admitted this earning
    potential. Attached to the referee’s report was evidence that
    Kyle had earned $4,306.90 working at a roofing company from
    October to December 2014 and had earned $3,578.62 working
    there from July to September 2014.
    Kyle did not attend the hearing at which evidence was
    submitted pertaining to paternity and child support, and his
    counsel withdrew. Kyle did not appeal from the child sup-
    port order.
    Contempt Order
    On June 7, 2016, the court issued an order for Kyle to
    appear at a hearing scheduled for July 7 and show cause why
    he should not be in contempt for willfully failing to comply
    with the December 2015 order. The order to appear required
    Kyle to bring to the hearing his income tax returns for the
    past 3 years, as well as his last three wage statements. Kyle
    was appointed counsel on July 8, 2016, upon a finding of
    1
    Neb. Rev. Stat. § 43-3341(12) (Reissue 2016).
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    STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.
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    298 Neb. 759
    indigency. On September 12, the court issued another order to
    appear, at a hearing scheduled for November 2, on the order to
    show cause.
    Kyle appeared at the November 2, 2016, hearing, repre-
    sented by his appointed counsel. At the hearing, the State
    introduced a certified copy of a history of Kyle’s payments
    to DHHS. The document demonstrated that Kyle had never
    made payments on the December 2015 order and that he was
    $2,551.59 in arrears.
    Kyle did not submit income tax returns, wage statements,
    or any other financial documentation. The only evidence pre-
    sented by Kyle at the hearing was his own testimony. Kyle tes-
    tified that he was unemployed. Kyle stated that his “last good
    job” was working as a “roof loader” for the roofing company.
    That job ended in November 2015 when he was laid off for
    the winter.
    Kyle testified that he had been applying for three jobs per
    week for the past 2 months, as required by a workforce devel-
    opment program he was participating in. The most recent jobs
    he applied for were at a supermarket, a home improvement
    store, and a discount department store. Kyle explained that he
    had not applied for work at a fast food restaurant or for other
    food service work, because he was still “trying to get [his]
    food handler’s permit to go that route.”
    Kyle refused to describe how many and what jobs he had
    applied for in the approximately 10-month period between the
    November 2015 layoff and beginning the workforce develop-
    ment program. After repeated evasiveness on Kyle’s part, the
    court instructed him to “calm[] down” and “listen carefully”
    to the State’s questions. But Kyle still refused to describe in
    detail his search for employment, stating, “I’m not gonna sit
    here and just keep beating around the bush about I’m not try-
    ing to get a job or this or that.”
    Kyle stated that he had done some subcontracting work
    since being laid off at the roofing company. He did not say
    how long he had worked as a subcontractor, nor how much he
    had earned.
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    STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.
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    298 Neb. 759
    Kyle indicated that he had not pursued more subcontract-
    ing work because he was disabled. Kyle testified that he had a
    “third grade reading and writing disability” and “a back prob-
    lem and a neck problem” related to a fall out of a tree in 2005.
    Kyle testified that he had applied for disability benefits the day
    before the hearing.
    Kyle testified that he paid $506 per month for rent and utili-
    ties. He spent an unknown amount on cigarettes. He also had a
    third child, a 6-month-old daughter, to support.
    Kyle explained that he had not paid child support for Mariah
    and Renee because he was struggling financially. Kyle elabo-
    rated that during the times that he was employed as a subcon-
    tractor, it was not “that much money or that much work.”
    What money he had made “[p]robably” went toward his rent
    and utilities. Beyond Kyle’s odd jobs, the mother of Kyle’s
    6-month-old daughter had been paying their rent, utilities, and
    other expenses with her Social Security income. That relation-
    ship had recently ended, however, and Kyle testified that he
    had “no money” at the time of the hearing.
    Kyle did not clearly indicate whether he had applied for or
    received unemployment benefits at any point since he was laid
    off in November 2015. He testified that he was not receiving
    any assistance at the time of the hearing.
    Kyle expressed that the amount of the support order was
    too high. Kyle indicated that the amount of the support order
    may have been set too high because he had failed to attend the
    paternity hearing in December 2015. He claimed he had missed
    the hearing because he did not receive the paperwork inform-
    ing him of the court date. Though Kyle claimed he had since
    brought the amount of the child support order to the court’s
    attention two or three times, there is no evidence that Kyle
    moved for modification of the order.
    Kyle did not deny being aware of the December 2015 child
    support order as of its effective date. He specifically acknowl-
    edged that he was aware of the child support order, though his
    testimony was imprecise as to when. He said:
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    STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.
    Cite as 
    298 Neb. 759
    Well, I think the first time that I was aware that I was
    starting to pay child support, the guy who was represent-
    ing me did not give me the paperwork to where I was
    supposed to make the payment to the child support, this
    and that. I don’t know. It’s my first time going through
    this stuff. I got reading and writing and disability prob-
    lems myself. I’ve just been trying to figure out — it’s
    been set at such a high — such high — like 200-whatever
    dollars, and I’ve been telling them that it’s been hard for
    me to afford to pay my own bills and to still be able to
    afford to pay the child support.
    Kyle did not assert that ignorance of the order was the reason
    for his failure to pay child support.
    The court found Kyle in willful contempt of the December
    2015 order. In its written contempt order, the court specifically
    found that during the period applicable to the contempt cita-
    tion, Kyle had the ability to pay the support ordered. Pursuant
    to the contempt order, Kyle was committed to 60 days’ jail
    time, to be suspended as long as he paid to the clerk of the
    court “$230.00 a month on current child support and $100.00
    [a month] on arrearage, commencing January 1, 2017.” In the
    event that Kyle complied with this payment schedule for 18
    months, he would be purged of contempt. In the event com-
    mitment was issued as a result of noncompliance, he would be
    released and purged of contempt upon payment of $1,000. The
    court did not set forth an explicit finding that Kyle was at that
    time able to pay the purge amount. Nor does the record reflect
    that the court pronounced its order in Kyle’s presence.
    Kyle timely appeals the contempt order.
    ASSIGNMENTS OF ERROR
    Kyle assigns that the district court abused its discretion in
    (1) finding him in civil contempt; (2) imposing an unreason-
    able, arbitrary, capricious, and punitive sanction; and (3) set-
    ting for the purge plan payment amounts that were impossible
    to perform.
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    STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.
    Cite as 
    298 Neb. 759
    STANDARD OF REVIEW
    [1] In a civil contempt proceeding where a party seeks reme-
    dial relief for an alleged violation of a court order, an appellate
    court employs a three-part standard of review in which (1) the
    trial court’s resolution of issues of law is reviewed de novo, (2)
    the trial court’s factual findings are reviewed for clear error,
    and (3) the trial court’s determinations of whether a party is in
    contempt and of the sanction to be imposed are reviewed for
    abuse of discretion.2
    [2] Though the ability to pay the purge amount is a factual
    question that we review for clear error, whether the facts result
    in a due process violation is a question of law.3
    ANALYSIS
    Kyle appeals from a contempt order imposed to enforce
    the prior judgment of paternity and child support.4 The parties
    agree that the underlying proceedings were instituted and tried
    as civil contempt. Kyle’s attorney asserts on appeal that the
    district court erred in finding Kyle in contempt because he did
    not willfully disobey the support order and, further, that the
    court erred in setting a purge amount that resulted in a puni-
    tive rather than coercive sanction. Kyle asserts that for these
    reasons, the district court’s order was unreasonable, arbitrary,
    and capricious.
    Willful
    [3-5] We first address whether the court clearly erred in
    finding that Kyle’s violation of the child support order was
    2
    Hossaini v. Vaelizadeh, 
    283 Neb. 369
    , 
    808 N.W.2d 867
    (2012).
    3
    See, United States v. Armstrong, 
    781 F.2d 700
    (9th Cir. 1986); Arbor
    Farms v. GeoStar Corp., 
    305 Mich. App. 374
    , 
    853 N.W.2d 421
    (2014);
    Reed v. Reed, 
    265 Mich. App. 131
    , 
    693 N.W.2d 825
    (2005); In re Wilson,
    
    879 A.2d 199
    (Pa. Super. 2005).
    4
    See Smeal Fire Apparatus Co. v. Kreikemeier, 
    279 Neb. 661
    , 
    782 N.W.2d 848
    (2010), disapproved on other grounds, Hossaini v. Vaelizadeh, supra
    note 2.
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    STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.
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    willful. Civil contempt requires willful disobedience as an
    essential element.5 “Willful” means the violation was commit-
    ted intentionally, with knowledge that the act violated the court
    order.6 If it is impossible to comply with the order of the court,
    the failure to comply is not willful.7 Willfulness is a factual
    determination to be reviewed for clear error.8
    [6-8] Outside of statutory procedures imposing a differ-
    ent standard, it is the complainant’s burden to prove civil
    contempt by clear and convincing evidence and without any
    presumptions.9 But, as this is a case involving child sup-
    port payable to DHHS, the presumption set forth in Neb.
    Rev. Stat. § 42-358(3) (Reissue 2016) is applicable. Section
    42-358(3) provides in part that “[a] rebuttable presumption
    of contempt shall be established if a prima facie showing is
    made that the court-ordered child or spousal support is delin-
    quent.” Necessarily, the rebuttable presumption of contempt
    provided by § 42-358(3) encompasses the essential element
    of willfulness.10
    It is undisputed that the State made such a prima facie show-
    ing that Kyle was delinquent in his court-ordered child sup-
    port by providing a certified copy of payments, balances, and
    arrearages maintained by the Title IV-D Division of DHHS.11
    5
    Hossaini v. Vaelizadeh, supra note 2.
    6
    Sickler v. Sickler, 
    293 Neb. 521
    , 
    878 N.W.2d 549
    (2016). See, also,
    Hossaini v. Vaelizadeh, supra note 2.
    7
    Novak v. Novak, 
    245 Neb. 366
    , 
    513 N.W.2d 303
    (1994), overruled on
    other grounds, Smeal Fire Apparatus Co. v. Kreikemeier, supra note 4.
    8
    See, In re Interest of Thomas M., 
    282 Neb. 316
    , 
    803 N.W.2d 46
    (2011);
    State on behalf of Lockwood v. Laue, 
    24 Neb. Ct. App. 909
    , 
    900 N.W.2d 582
          (2017). See, also, e.g., In re Hollis, 
    150 B.R. 145
    (D. Md. 1993); People
    v. Penson, 
    197 Ill. App. 3d 941
    , 
    557 N.E.2d 230
    , 
    145 Ill. Dec. 460
    (1990);
    McLarty v. Walker, 
    307 S.W.3d 254
    (Tenn. App. 2009).
    9
    Smeal Fire Apparatus Co. v. Kreikemeier, supra note 4.
    10
    See D’Angelo v. Guarino, 
    88 So. 3d 683
    (La. App. 2012).
    11
    See Neb. Rev. Stat. § 43-3342.01 (Reissue 2016).
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    STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.
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    298 Neb. 759
    We conclude that the district court did not err in finding that
    Kyle’s testimony failed to rebut the presumption of contempt
    established pursuant to § 42-358(3).
    Contrary to the assertions of Kyle’s attorney on appeal, Kyle
    did not indicate at the contempt hearing that he was ignorant of
    the fact that he was violating a court order. The only testimony
    regarding Kyle’s lack of knowledge related to his failure to
    attend the paternity hearing. Kyle’s testimony that he was con-
    fused at some point about where he was supposed to send his
    payments did not rebut the presumption of willfulness; instead,
    it demonstrated his knowledge of the support order.
    Neither do we find merit to Kyle’s argument that the district
    court erred in concluding that it was possible to comply with
    the support order. Kyle argues that the district court erred in
    finding his conduct willful because there was no evidence
    that he was able to pay the court-ordered child support. But
    the State presented evidence establishing a presumption that
    Kyle was able to comply with the 2015 order when it made
    a prima facie showing that the court-ordered child support
    was delinquent.12
    [9] Other jurisdictions hold under either common law or a
    statutory presumption that a child support order calculated in
    accordance with applicable guidelines creates a presumption
    that the parent was able to pay the amount so ordered during
    the time period subject to contempt.13 The parent rebuts this
    presumption of ability to pay by demonstrating that circum-
    stances beyond the parent’s control have intervened since the
    time the child support order was entered.14 We similarly hold
    that in contempt proceedings, both § 42-358(3) and logic dic-
    tate that a valid child support order is evidence of the parent’s
    ability to pay the amount specified therein.
    12
    See § 42-358(3).
    13
    See, Polli v. Vina, 
    557 So. 2d 55
    (Fla. App. 1989). See, also, 18 U.S.C.
    § 228(b) (2012).
    14
    See Polli v. Vina, supra note 13.
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    STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.
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    [10,11] The Nebraska Court of Appeals applied a similar
    presumption in In re Interest of Noelle F. & Sarah F.15 when
    it held that a child support order issued in accordance with the
    Nebraska Child Support Guidelines presupposed a financial
    ability that, absent other evidence, defeated a claim of indi-
    gence for purposes of appointment of counsel. We have con-
    sistently held that in determining the amount of a child support
    award, the trial court must consider the status, character, and
    situation of the parties and attendant circumstances, including
    the financial condition of the parties and the estimated cost of
    support of the children.16 In other words, the parent’s ability
    to pay is an important consideration in setting the amount of
    the child support order.17 We have also held that child support
    established under the Nebraska Child Support Guidelines is
    presumed correct, unless one or both parties present sufficient
    evidence to rebut that presumption.18
    The best way to rebut the presumption of an ability to pay
    established by a child support order issued in accordance with
    the Nebraska Child Support Guidelines is evidence to dem-
    onstrate a change of circumstances. Though not decisive in a
    contempt proceeding, procedures exist for parents whose situ-
    ation has changed to timely file a complaint for modification
    of the child support order pursuant to Neb. Rev. Stat. § 42-364
    (Reissue 2016) or to ask DHHS to consider referring the child
    support order to the county attorney or authorized attorney for
    filing an application for modification under Neb. Rev. Stat.
    § 43-512.15 (Reissue 2016).19
    15
    In re Interest of Noelle F. & Sarah F., 
    3 Neb. Ct. App. 901
    , 
    534 N.W.2d 581
          (1995).
    16
    Faaborg v. Faaborg, 
    254 Neb. 501
    , 
    576 N.W.2d 826
    (1998).
    17
    See 
    id. See, also,
    Bird v. Bird, 
    205 Neb. 619
    , 
    288 N.W.2d 747
    (1980).
    18
    See, State on behalf of A.E. v. Buckhalter, 
    273 Neb. 443
    , 
    730 N.W.2d 340
          (2007); Sylvis v. Walling, 
    248 Neb. 168
    , 
    532 N.W.2d 312
    (1995).
    19
    See, also, Neb. Rev. Stat. § 43-512.12 (Reissue 2016).
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    STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.
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    Kyle failed to demonstrate a change of circumstances
    defeating the presumption of his ability to pay in accordance
    with the support order. Viewed in the light most favorable to
    the prevailing party, Kyle’s unsupported claims of unemploy-
    ment and disability stated nothing new or different. Other than
    his testimony that he had applied for three jobs per week for
    the past 2 months with no success, Kyle did not present any
    evidence that his ability to earn $8 per hour and work 40 hours
    per week had diminished since the date of the support order.
    Instead, he was evasive when asked to specify how many jobs
    and what kind of jobs he had applied for during the 11 months
    he failed to pay child support, and none he described appeared
    to be in a field he had experience in. Given that Kyle was
    working as a roof loader with the same alleged disabilities
    until his seasonal layoff in November 2015, Kyle failed to
    adequately explain why he has not since sought employment
    in a similar field.
    Kyle’s testimony that he suffered disabilities that diminished
    his earning capacity was simply as follows: “I was actually
    taking on some jobs through a subcontractor subcontracting
    work and finishing up some work there. But physically with
    my disability and this and that, I try to do things hands-on so
    —.” Kyle presented no medical documentation or expert tes-
    timony supporting his assertion that he suffered from reading
    and writing disabilities and “a back problem and a neck prob-
    lem” which prevented him from earning income sufficient to
    pay his child support obligations.
    Furthermore, as this testimony illustrates, Kyle was vague
    as to the extent he had actually earned income doing subcon-
    tracting work during the 11 months that the support order had
    been in effect. Kyle failed to comply with the court’s prior
    order that he submit at the hearing his tax returns and wage
    statements. Kyle failed to provide the court with any employ-
    ment records. The court reasonably could have made a nega-
    tive inference from Kyle’s disobedience of the court’s order.
    Though Kyle stated that his support was sometimes supplied
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    STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.
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    entirely by the mother of his 6-month-old daughter, such testi-
    mony does not establish his inability to become employed; nor
    do his obligations toward that child relieve him of the duty to
    support Mariah and Renee.20
    [12] Triers of fact have the right to test the credibility of
    witnesses by their self-interest and to weigh it against the
    evidence, or the lack thereof.21 In this case, Kyle’s testimony
    was woefully inadequate when weighed against the presump-
    tion inherent to the child support order that he was capable of
    paying it. The district court did not clearly err in finding that
    during the period applicable to the contempt citation, Kyle had
    the ability to pay the support ordered by the December 2015
    order. By explicitly finding that Kyle had the ability to pay
    and implicitly finding that Kyle had knowledge of the sup-
    port order, the district court found that Kyle’s disobedience
    was willful. The court did not clearly err in these findings
    and did not abuse its discretion in determining that Kyle was
    in contempt.
    A bility to Comply With
    Purge Order
    [13,14] We turn next to whether the court erred in setting a
    purge amount in excess of Kyle’s present ability to pay, thereby
    making the sanction of incarceration punitive. A criminal or
    punitive sanction is invalid 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.22 A present inability to comply with a
    contempt order is a defense, not necessarily to contempt, but
    20
    See Richardson v. Anderson, 
    8 Neb. Ct. App. 923
    , 
    604 N.W.2d 427
    (2000).
    21
    Ohnstad v. Omaha Public Sch. Dist. No. 1, 
    232 Neb. 788
    , 
    442 N.W.2d 859
          (1989); First Nat. Bank of Omaha v. First Cadco Corp., 
    189 Neb. 734
    , 
    205 N.W.2d 115
    (1973).
    22
    Sickler v. Sickler, supra note 6.
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    to the sanction of incarceration.23 Though the ability to pay
    the purge amount is a factual question that we review for clear
    error, whether the facts result in a due process violation is a
    question of law.24
    [15,16] When a purge order involves payment of money,
    the sum required to purge oneself of contempt must be within
    the contemnor’s ability to pay within the time period provided
    in the order, taking into consideration the assets and finan-
    cial condition of the contemnor and his or her ability to raise
    money.25 For the punishment to retain its civil character, the
    contemnor 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.26 Contemnors
    in civil contempt must carry the keys of their jail cells in their
    own pockets.27
    [17] Though related and involving similar evidence, the
    due process question of whether Kyle is able to pay the
    purge amount is not the same as whether Kyle willfully vio-
    lated the December 2015 child support order and was thereby
    in contempt. The statutory presumption of contempt under
    § 42-358(3) does not determine the question of whether the
    purge plan is punitive. And while a presumption of an abil-
    ity to pay the child support order made in accordance with
    the Nebraska Child Support Guidelines may be relevant, it is
    not conclusive as to the reasonableness of the purge amount.
    Kyle’s ability to pay in accordance with the child support order
    was evaluated over the 11-month period since its issuance,28
    23
    See 
    id. 24 See,
    United States v. Armstrong, supra note 3; Arbor Farms v. GeoStar
    Corp., supra note 3; Reed v. Reed, supra note 3; In re Wilson, supra
    note 3.
    25
    See 
    id. 26 Id.
    27
    See 
    id. 28 See
    id.
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    but whether the purge plan was punitive was evaluated at the
    time of the order of contempt. A past ability to comply with an
    order does not show a present ability to purge the contempt.29
    But past failure coupled with unpersuasive or unsupported
    claims of present inability is sufficient.
    [18] We reiterate our recent holding in Sickler v. Sickler30
    that, despite any overlap with the finding of willful disobedi-
    ence in the underlying contempt, a court that imposes incar-
    ceration as part of civil contempt proceedings shall make
    express findings regarding the contemnor’s ability to comply
    with the purge order. Such a finding is required because of
    “the importance of the ability to comply in distinguishing
    between civil and criminal contempt and its due process
    implications.”31
    While the district court stated in its order that Kyle had the
    ability to pay the support obligation, it failed to explicitly find
    that Kyle had the present ability to comply with the contempt
    order. Kyle does not assign as error the court’s failure to make
    a specific finding regarding his ability to comply with the
    contempt order, however. And we find no plain error, because
    the record supports the court’s implicit conclusion that Kyle
    failed to prove an inability to comply.
    [19-22] It is the contemnor who has the burden to assert
    and prove the inability to comply with the contempt order as
    a defense to incarceration.32 The burden of both production
    and persuasion is on the contemnor to show the present inabil-
    ity to comply.33 Such a 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
    29
    Sickler v. Sickler, supra note 6.
    30
    
    Id. 31 Id.
    at 
    543, 878 N.W.2d at 566
    .
    32
    See Sickler v. Sickler, supra note 6.
    33
    
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    order.34 In general, the contemnor’s inability to comply cannot
    be voluntarily created, for example by not diligently seeking a
    job at one’s earning potential.35
    As already discussed, the evidence suggested that Kyle was
    able to work as a roof loader despite his claimed disabilities.
    The district court did not find credible Kyle’s testimony to
    the contrary.
    Kyle’s evidence that he was unable to comply consisted of
    his self-serving and vague testimony that he had unsuccessfully
    applied for work during the prior 2 months. The only specific
    testimony regarding Kyle’s recent attempts to gain employ-
    ment were that he had applied for three jobs per week and that
    his most recent three applications were in retail—a field that
    there was no evidence he had experience in. Kyle provided
    scant evidence he was incapable of finding work similar to
    his “last good job” as a roof loader, which he had been able to
    perform despite the disabilities alleged at the hearing. Kyle’s
    failure to find a job in the 2 months preceding the hearing did
    not foreclose the district court from finding that Kyle would be
    able to obtain full-time employment within the 2-month grace
    period of the contempt order.
    Furthermore, although Kyle testified that he did not own a
    vehicle or his home, and that he had “no money,” Kyle failed
    to make a full accounting of his assets. Instead, he disobeyed
    the court’s order to produce his tax documents.
    Finally, Kyle presented no evidence whatsoever of an inabil-
    ity to borrow sufficient funds to comply with the purge order.
    [23] It is true that the district court found Kyle indigent
    on July 8, 2016, for purposes of the appointment of counsel.
    Kyle relies on this finding in asserting that it was impossible
    for him to pay the purge amount. But the inability-to-pay
    threshold for determining that the contemnor lacks the keys to
    34
    
    Id. 35 See
    Jenkins v. State, 
    60 Neb. 205
    , 
    82 N.W. 622
    (1900).
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    his or her own jail cell is higher than the indigence threshold
    for appointing counsel.36 Thus, a finding of indigency for pur-
    poses of retaining legal counsel does not preclude a finding
    that the contemnor is able to pay whatever purge amount has
    been set by the court.
    Neb. Rev. Stat. § 29-3901(3) (Reissue 2016) defines indi-
    gent as “the inability to retain legal counsel without prejudic-
    ing one’s financial ability to provide economic necessities for
    one’s self or one’s family.” A court may find indigency for
    purposes of appointment of counsel based alone on a situation
    where expenses exceed income, and a person is not required to
    prejudice one’s financial ability to provide economic necessi-
    ties for oneself or one’s family in order to be determined indi-
    gent for that purpose.37 Nor must a person dispose of all his or
    her assets or have exhausted all possible sources of borrowing
    money before being eligible for appointment of counsel.38
    [24] In contrast, as stated, an inability to comply with a
    purge order entails having exhausted all assets and opportu-
    nities to borrow sufficient funds.39 Moreover, a purge order
    involving simply the arrears owed in child support promotes
    rather than prejudices the contemnor’s provision for his or her
    family. As we have said before, “[t]he support of one’s chil-
    dren is a fundamental obligation which takes precedence over
    almost everything else.”40
    We read the contempt order as including the $230 monthly
    support obligation as part of the purge amount. It may have
    36
    See In re Mancha, 
    440 S.W.3d 158
    (Tex. App. 2013). See, also, Lamb v.
    Eads, 
    346 N.W.2d 830
    (Iowa 1984). But see, Turner v. Rogers, 
    564 U.S. 431
    , 
    131 S. Ct. 2507
    , 
    180 L. Ed. 2d 452
    (2011); Andrews v. Walton, 
    428 So. 2d 663
    (Fla. 1983); State ex rel. Shaw v. Provaznik, 
    708 S.W.2d 337
          (Mo. App. 1986).
    37
    See State v. Masilko, 
    226 Neb. 45
    , 
    409 N.W.2d 322
    (1987).
    38
    
    Id. 39 See
    Sickler v. Sickler, supra note 6.
    40
    State v. Reuter, 
    216 Neb. 325
    , 328, 
    343 N.W.2d 907
    , 910 (1984).
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    been the court’s intention to impose as the purge amount $100
    monthly in arrearages and to simply reiterate that Kyle must
    continue his underlying monthly support obligation during
    that time. But that does not appear on the face of the order to
    be what the court did. While we recognize the purge order in
    this respect is irregular, in that it includes future child support
    installments which have not yet accrued, Kyle does not chal-
    lenge the propriety of including in the purge amount his ongo-
    ing monthly obligation. The question presented is whether it
    was impossible to comply with the order. The record supports
    the court’s conclusion that Kyle did not demonstrate inability
    to pay $330 monthly for 18 months, beginning approximately
    2 months from the time of the contempt hearing, or, alterna-
    tively, inability to pay $1,000 once jailed.
    We find no merit to Kyle’s claim that the contempt order
    impermissibly imposed a criminal or punitive sanction in a
    civil proceeding.
    CONCLUSION
    There is no merit to Kyle’s assignments of error challenging
    the underlying finding of contempt and the reasonableness of
    the purge amount. We affirm the order of contempt.
    A ffirmed.
    Wright, J., not participating.
    

Document Info

Docket Number: S-16-1142

Citation Numbers: 298 Neb. 759

Filed Date: 1/26/2018

Precedential Status: Precedential

Modified Date: 3/3/2020

Authorities (23)

People v. Penson , 197 Ill. App. 3d 941 ( 1990 )

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

Faaborg v. Faaborg , 254 Neb. 501 ( 1998 )

Lamb v. Eads , 1984 Iowa Sup. LEXIS 1112 ( 1984 )

First National Bank of Omaha v. First Cadco Corp. , 189 Neb. 734 ( 1973 )

Turner v. Rogers , 131 S. Ct. 2507 ( 2011 )

United States v. Clarence S. Armstrong, William John ... , 781 F.2d 700 ( 1986 )

Ohnstad v. Omaha Public School District No. 1 , 232 Neb. 788 ( 1989 )

State v. Masilko , 226 Neb. 45 ( 1987 )

McLarty v. Walker , 2009 Tenn. App. LEXIS 688 ( 2009 )

Richardson v. Anderson , 8 Neb. Ct. App. 923 ( 2000 )

Bird v. Bird , 205 Neb. 619 ( 1980 )

State on Behalf of AE v. Buckhalter , 273 Neb. 443 ( 2007 )

Sylvis by and Through Sylvis v. Walling , 248 Neb. 168 ( 1995 )

In Re Interest of Noelle F. , 3 Neb. Ct. App. 901 ( 1995 )

Novak v. Novak , 245 Neb. 366 ( 1994 )

Andrews v. Walton , 428 So. 2d 663 ( 1983 )

State v. Reuter , 216 Neb. 325 ( 1984 )

Smeal Fire Apparatus Co. v. Kreikemeier , 279 Neb. 661 ( 2010 )

In Re Hollis , 150 B.R. 145 ( 1993 )

View All Authorities »

Cited By (25)

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State on behalf of Maria B. & Renee B. v. Kyle B. , 298 Neb. 759 ( 2018 )

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State on behalf of Maria B. & Renee B. v. Kyle B. , 298 Neb. 759 ( 2018 )

State on behalf of Maria B. & Renee B. v. Kyle B. , 298 Neb. 759 ( 2018 )

State on behalf of Maria B. & Renee B. v. Kyle B. , 298 Neb. 759 ( 2018 )

State on behalf of Maria B. & Renee B. v. Kyle B. , 298 Neb. 759 ( 2018 )

State on behalf of Maria B. & Renee B. v. Kyle B. , 298 Neb. 759 ( 2018 )

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State on behalf of Maria B. & Renee B. v. Kyle B. , 298 Neb. 759 ( 2018 )

State on behalf of Maria B. & Renee B. v. Kyle B. , 298 Neb. 759 ( 2018 )

State on behalf of Maria B. & Renee B. v. Kyle B. , 298 Neb. 759 ( 2018 )

State on behalf of Maria B. & Renee B. v. Kyle B. , 298 Neb. 759 ( 2018 )

State on behalf of Maria B. & Renee B. v. Kyle B. , 298 Neb. 759 ( 2018 )

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State on behalf of Maria B. & Renee B. v. Kyle B. , 298 Neb. 759 ( 2018 )

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