State of Minnesota, et al., Respondents, Nicole Deann Burkhart, Respondent, vs. Jonathan Daniyel Nold, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-1983

 

 

State of Minnesota, et al.,

Respondents,

 

Nicole Deann Burkhart,

Respondent,

 

vs.

 

Jonathan Daniyel Nold,

Appellant.

 

 

Filed July 8, 2003

Affirmed in part and remanded; motion granted in part and denied in part

Halbrooks, Judge

 

 

Winona County District Court

File No. F40050085

 

Charles MacLean, Winona County Attorney, Kevin P. O'Laughlin, Assistant County Attorney, 171 West 3rd Street, Winona, MN 55987 (for respondents State and County of Winona)

 

Nicole Burkhart, 10020 Norway Drive, Wausau, WI 54401 (pro se respondent)

 

Karl W. Sonneman, Sonneman & Sonneman, P.A., 111 Riverfront, Suite 202, Winona, MN 55987 (for appellant)

 

 

 

            Considered and decided by Shumaker, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            The district court found appellant in civil contempt for failure to pay child support.  Appellant challenges the judgment on the grounds that he was denied his right to counsel and the district court should have deferred to another district court's decision on an unrelated criminal matter.  We conclude that appellant's right to counsel was not violated and the district court did not err by holding appellant in civil contempt without deferring to another court's order.  But because the district court failed to make the necessary findings prior to ordering appellant to be incarcerated for contempt, we remand to the district court.

FACTS

            In August 2000, appellant Jonathan Daniyel Nold was found by the Winona County District Court to be the father of N.W.V.B. and ordered to pay monthly child support in the amount of $290.  From August 2000 to April 2001, appellant made no support payments and accumulated arrearages totaling $2,724.83.  In June 2001, appellant was served with an order to appear and show cause why he had not complied with the child-support order and why he should not be held in contempt.  Appellant appeared with counsel in response to the show-cause order.  On September 12, 2001, the court entered judgment against appellant for the child-support arrearages but stayed the contempt issue for three months.

            Appellant again failed to make the required support payments.  As a result, respondent Winona County mailed a letter to appellant's last known address and to his counsel, notifying appellant to appear in court on January 8, 2002 to address the contempt issue.  When appellant did not appear on that date, a bench warrant for his arrest was issued.  Appellant was subsequently arrested and appeared in court without counsel on March 21, 2002.  Appellant denied the contempt charge and requested representation for the contempt hearing.  Because appellant was substantially in arrears, the district court ordered that appellant be held in custody subject to posting an unconditional bond of $1,580the amount of arrearages that appellant owed that had not been reduced to judgment.

            Later that day, appellant signed a stipulation, specifically waiving his right to counsel and admitting that he had both the ability to comply with the child-support order to a greater extent than he had done and that he continued to have that ability to comply with the support order.  The stipulation was incorporated into the court's findings of fact, conclusions of law, order for judgment and judgment.  The district court specifically found that appellant had the ability to comply with his child-support obligation to a greater extent than he had complied.  The district court concluded that appellant's conduct constituted constructive civil contempt and that conditional confinement was likely to result in compliance with the court's order.  Pursuant to the stipulation, appellant agreed to make timely child-support payments with an additional $58 monthly payment to be applied to the arrearages.  The court ordered appellant to be incarcerated in the Winona County jail for a period of up to 60 days but stayed the execution for one year, contingent upon appellant's compliance with the provisions of the order.  Appellant was then released from custody.

            From June 2002 through October 15, 2003, appellant served time in Olmsted, Mower, and Dodge County jails for criminal offenses and probation violations unrelated to this appeal.  When appellant appeared in court in Dodge County on October 14, 2002 for violation of his probation on a felony conviction, that court agreed to permit appellant to remain on probation but imposed various conditions, including that appellant have two jobs and pay child support.  Appellant was then transported to Winona County to answer for his failure to follow the Winona court's March 21, 2002 order.  The Winona County District Court released appellant on his own recognizance on the condition that he apply for a public defender. 

            On October 29, 2002, appellant appeared for the contempt hearing with appointed counsel.  Appellant argued that he was unable to pay child support because he had been incarcerated on other matters, but that he was making payments to the best of his ability through wage withholding.  He also argued that the court should take into consideration the fact that he had outstanding fines in other counties and that the conditions of his probation imposed in Dodge County District Court adequately addressed the child-support issue.

            The district court gave appellant his choice of conditional orders.  One option was to vacate the stay of his 60-day jail incarceration, requiring him to serve 60 days with Huber work release, with the Huber fee waived.  The other option was to continue the stay, contingent upon appellant paying $500 within ten days and the balance of what the county was seeking ($2,094.96) within 60 days.  Appellant chose to serve the 60-day incarceration with the Huber release.  This appeal follows.

D E C I S I O N

I.

Appellant argues that his right to counsel was violated both when he was not provided with counsel for the first (March 21, 2002) contempt hearing and when the county allegedly interfered with his exercise of his right to counsel by working out a stipulation with him after he had requested counsel but before counsel was provided. 

            Appellant asserts that an indigent defendant in a civil-contempt proceeding has a right to court-appointed counsel under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I of the Minnesota Constitution.  While the Minnesota Supreme Court has not decided whether an indigent non-custodial parent facing civil contempt for failure to pay child support is entitled to counsel on constitutional grounds, it has held that, pursuant to its "supervisory powers to ensure the fair administration of justice," counsel must be appointed when incarceration becomes a "real possibility."  Cox v. Slama, 355 N.W.2d 401, 403 (Minn. 1984).[1] 

A.        Right to Counsel at March 21, 2002 Hearing

Generally, a civil-contempt proceeding has two stages.  See Mahady v. Mahady, 448 N.W.2d 888, 891 (Minn. App. 1989) (describing two-stage contempt proceeding); but cf. Mower County Human Servs. v. Swancutt, 551 N.W.2d 219, 223-24 (Minn. 1996) (noting, in some circumstances, single-hearing process may be appropriate).  In the first stage of a two-stage proceeding, the district court must (1) find that the obligor had the ability to comply with the court's order and satisfy the obligations when they came due; (2) set "purge conditions" and determine whether the contemnor will be able to satisfy those conditions; and (3) determine that conditional confinement is "reasonably likely to produce compliance."  Minn. Stat. § 588.12 (2002); Hopp v. Hopp, 279 Minn. 170, 175, 156 N.W.2d 212, 217 (1968).  If a court makes such findings, it may then issue a conditional-contempt order.

The second stage of a two-stage civil-contempt proceeding occurs after the contemnor has allegedly violated the terms of the conditional-contempt order.  Before incarceration can be ordered, the contemnor is entitled to a hearing on the issue of the contemnor's performance or non-performance of the purging conditions contained in the conditional-contempt order.  Mahady, 448 N.W.2d at 891.  It is then that incarceration may become a real possibility and hence that a right to counsel attaches.  Cox, 355 N.W.2d at 403; Mahady, 448 N.W.2d at 890.  Accordingly, if a contemnor lacks counsel when incarceration becomes a real possibility, the court must suspend the contempt aspects of the proceedings and determine whether the contemnor desires legal counsel.  Cox, 355 N.W.2d at 403.

Apparently assuming that the March 21, 2002 hearing was a first-stage Mahady proceeding, appellant asserts that he had a right to counsel at that hearing because, as a result of the hearing, incarceration was a real possibility.  But when appellant appeared before the court on March 21, 2002, the court advised him that if he denied that he was in civil contempt, a trial on the issue would be scheduled, that he would have the right to an attorney, and that an attorney would be appointed if necessary.  Appellant then denied that he was in civil contempt and the court asked appellant if he would like to retain private counsel or have counsel appointed.  Appellant responded that he would like to have counsel appointed.  The hearing concluded with the court instructing appellant to apply that day for a court-appointed attorney and setting an unconditional bond in the amount of $1,580 to ensure appellant's appearance at a later hearing. 

The stipulation that appellant later signed was, in effect, a conditional-contempt order.  It satisfied the requirements of a conditional-contempt order, stating that appellant had the ability to satisfy his child-support obligation, outlining purge conditions, and stating that conditional confinement was likely to produce compliance.  Under the stipulation, appellant was not ordered to be incarcerated and, under caselaw, only after a hearing on the questions of appellant's performance or excusable non-performance of the purge conditions in the stipulation would the court have been able to order appellant's incarceration.  Mahady, 448 N.W.2d at 890.  Thus, because appellant did not face a real possibility of incarceration when he signed the stipulation, a right to counsel did not attach at that point.  It was at the second-stage hearing on October 29, 2002, when appellant was found to have violated the terms of the stipulation, that he faced the real possibility of incarceration.  Because appellant was represented by counsel at that hearing, however, his right to counsel was vindicated.

B.        Stipulation

Appellant also argues that the state, by entering into a stipulation with appellant after he requested court-appointed counsel but before counsel had been appointed, failed to honor his request and that his explicit written waiver of counsel in the stipulation is not valid because he did not have the advice of legal counsel before signing.  The record currently before this court, however, contains no evidence, allegations, or other information regarding the events producing the stipulation or how it was reached.  Absent a record addressing the genesis of the stipulation, this court cannot review whether appellant's waiver of counsel was somehow defective.  Moreover, appellant has not directed us to any legal authority forbidding a civil contemnor from waiving his right to counsel after having invoked any right that he may have had.  Absent both a record allowing us to address the question and an argument that would allow appellant to prevail were we to do so, we will not reverse the district court's adoption of the parties' stipulation.  See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating, to prevail on appeal, appellant must show both error and prejudice); Truesdale v. Friedman, 267 Minn. 402, 404, 127 N.W.2d 277, 279 (1964) (stating "the party seeking review has the duty to see that the appellate court is presented with a record which is sufficient to show the alleged errors"); see also Minn. R. Civ. P. 61 (requiring harmless error to be ignored).

II.

Appellant argues that because he was on felony criminal probation imposed in Dodge County, the terms of which required him to stay current in his child-support obligation, the principle of comity precluded the Winona County District Court from imposing civil contempt sanctions on him.  When a district court invokes its civil-contempt powers, this court reviews the district court's decision for an abuse of discretion.  Swancutt, 551 N.W.2d at 222. 

Comity allows the court first acquiring jurisdiction to resolve two different actions when the two actions are "between the same parties, on the same subject, and to test the same rights * * * [and] brought in different courts having concurrent jurisdiction[.]"  Gavle v. Little Six, Inc., 555 N.W.2d 284, 290 (Minn. 1996) (quoting Minn. Nat'l Bank of Duluth, 195 Minn. 169, 173, 262 N.W. 155, 157 (1935)).  Here, in the Dodge County action, the state and appellant were involved in a criminal matter, while in the Winona County action, Winona County, on behalf of Nicole Burkhart, and appellant were involved in a civil matter.  Because the two cases involved different parties, different subjects, and different rights, comity was not a viable basis for the Winona County District Court to have deferred to the Dodge County District Court.[2] 

 

Although appellant also argues that the Winona County District Court's failure to defer to the Dodge County District Court's probation order violates due process or public policy, he cites no authority to support these arguments.  Therefore, we decline to address them.  State, Dep't of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (refusing to address issue in absence of adequate briefing); see also Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519, 187 N.W.2d 133, 135 (1971) (stating "assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal") (citation omitted).

Appellant further contends that he should not have been found in contempt for nonpayment of child support where he was in jail for much of the time during which he failed to make payments.  But the burden of establishing inability to comply with the terms of a conditional-contempt order is on the obligor.  Mahady, 448 N.W.2d at 890.  And here, that appellant was incarcerated for some time during the months of June, July, September, and October 2002, does not explain why he made only partial payments in April and May.  Because the finding that he did not make full payments for April and May is, on this record, not clearly erroneous and because appellant's incarcerations in other months do not explain why he did not make full payments for April and May, appellant did not carry his burden of showing that the district court abused its discretion by holding him in contempt, and we affirm the court's contempt determination.

However, upon a finding of contempt and before ordering confinement, the district court must make findings under Hopp stating that the contemnor is able to perform the obligation,  must set purge conditions, and must determine whether the contemnor will be able to satisfy those conditions.  See Minn. Stat. § 588.12 (2002) (stating imprisonment is dependent upon contemnor being able to purge contempt by compliance); Hopp, 279 Minn. at 175, 156 N.W.2d at 217 (stating confinement should not be ordered if the person was entirely unable to perform).  Here, the court did not issue a written order after the October 29, 2002 hearing.  Nor did it, on the record, make the findings necessary to support appellant's incarceration.  See Minn. R. Civ. P. 52.01 (stating findings of fact may be stated orally and recorded in open court).  This was error.  See Tell v. Tell, 383 N.W.2d 678, 684 (Minn. 1986) (acknowledging the importance of a specific finding of ability to comply before incarcerating for civil contempt); Hopp, 279 Minn. at 175, 156 N.W.2d at 217 (court must determine that appellant had the ability to meet his obligations); Mahady, 448 N.W.2d at 890 (it is error to set purging conditions and incarcerate without findings as to appellant's ability to purge the offense).  We, therefore, remand to the district court to make the necessary findings.  See id. (case remanded because district court failed to make findings as to contemnor's ability to satisfy purging conditions).

III.

Respondent moves to strike pages three through ten of the appendix to appellant's brief, alleging that those pages are not part of the record on appeal.  "The papers filed in the trial court, the exhibits, and the transcript of the proceedings * * * shall constitute the record on appeal in all cases."  Minn. R. Civ. App. P. 110.01.  "[This] court will strike documents included in a party's brief that are not part of the appellate record."  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff'd, 504 N.W.2d 758 (Minn. 1993).  Of the pages in question, only page nine was filed with the district court.  Therefore, we deny respondent's motion to strike page nine, but grant respondent's motion to strike pages three to eight, and page ten of appellant's appendix. 

            Affirmed in part and remanded; motion granted in part and denied in part.

 

[1] Respondent correctly notes that the issue of appellant's right to counsel is not properly before this court because it was not raised in the district court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating appellate courts generally address only issues presented to and considered by the district court).  That appellate courts do not address issues not raised in district court, however, "is not * * * an ironclad rule"; under appropriate circumstances, appellate courts have the authority to take action "as the interest of justice may require."  Putz v. Putz, 645 N.W.2d 343, 350 (Minn. 2002) (quoting Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 403 (Minn. 2000) and Minn. R. Civ. App. P. 103.04); see Minn. R. Civ. App. P. 103.04 (addressing scope of appellate review).  Because the merits of appellant's counsel-related allegations were briefed by (and will not prejudice) respondent, we will assume that, under Putz's exception to the general rule we can address those questions, at least to the extent of the currently existing law in Minnesota.  Because appellant's counsel-related questions are not properly before us, however, we decline to go beyond the currently existing law and address the constitutional dimensions of his arguments.  See State v. Hoyt, 304 N.W.2d 884, 888 (Minn. 1981) (stating "[appellate courts] do not decide constitutional questions except when necessary to do so in order to dispose of the case at bar"). 

[2]Appellant also seems to argue that the Dodge County District Court's order making appellant's (Dodge County) probation contingent on appellant's compliance with his (Winona County) child support obligation renders it unnecessary for the Winona County District Court to invoke contempt sanctions for not paying support because not paying support will cause appellant to suffer the consequence of probation revocation.  But it is not clear that the two orders are designed to accomplish the same ends or to vindicate the same rights.  Nor did appellant cite any authority for the proposition that a district court (here, the Winona County District Court) can abuse its discretion by attempting to enforce its own order.  Lastly, to the extent appellant may be challenging the provision in the Dodge County District Court's order making appellant's (Dodge County) probation contingent on his compliance with his (Winona County) child-support obligation, we note that such a challenge to the (Dodge County District Court's) probation order made in this appeal from the (Winona County) contempt proceeding is, essentially, an improper collateral attack on (Dodge County) probation order.