Greene v. District Court of Polk County ( 1983 )

CARTER, Justice

(concurring in part and dissenting in part).

I concur in Divisions II, III, and IY of the majority opinion. With respect to Division I of that opinion, I agree that defendant’s jailing was the product of a due process violation which requires that the writ be sustained, but otherwise dissent from the views which are therein expressed.

The order for commitment in the present case was issued ex parte on an unsworn application that the conditions previously imposed for withholding commitment had not been satisfied. Due process requires more than this. The plaintiff should have been accorded notice and opportunity to be heard on the issue of whether he failed to comply with the conditions under which his commitment to jail had previously been withheld.

I disagree, however, with the majority’s conclusion that such a due process hearing requires a reexamination of plaintiff’s ability to pay. Unlike traditional criminal sentencing, contempt proceedings involving failure to pay court-ordered support are primarily concerned with securing compliance with the court’s order rather than punishment. It is therefore quite inaccurate to suggest that the withholding of an order of commitment following a finding of willful failure to pay court-ordered support constitutes a determination that the State’s penological interest does not require imprisonment. The determination to withhold the commitment is more accurately described as a finding by the court that punishment is not required if, but only if, the specified arrearages are in fact paid within the time specified.

Because of the special nature of contempt proceedings to enforce domestic support decrees, I find that the principles underlying Bearden v. Georgia, — U.S. -, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) are inapplicable. The determination of alternative methods of punishing the defendant have already been fully considered by the court at the original hearing and should not have to be reexamined. A second hearing to determine ability to pay at the time of commitment is unnecessary and would in most cases amount to an undue burden on the court without noticeably improving the quality of justice.