In re: Mower County Human Services o/b/o Dawn M. Henga, Respondent, vs. Demian H. Enright, 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This opinion will be unpublished and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

A03-539

 

In re: Mower County Human Services o/b/o Dawn M. Henga,
Respondent,
 
vs.
 
Demian H. Enright,
Appellant.

 

Filed December 30, 2003

Affirmed in part, and reversed in part, and remanded

Stoneburner, Judge

 

Mower County District Court

File No. F699981

 

Patrick Flanagan, Mower County Attorney, Jonathan Olson, Assistant County Attorney, 201 First Street Northeast, Austin, MN 55912 (for respondent)

 

William L. Bodensteiner, 309 South Main Street, Austin, MN 55912 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge, Stoneburner, Judge, and Poritsky, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant Demian H. Enright challenges his incarceration for contempt, arguing that he had a legitimate reason for failing to comply with previously ordered purge conditions and that the district court erred by omitting purge conditions from the order of confinement.  Because the district court's findings that appellant had the ability to meet the purge conditions and failed to do so are not clearly erroneous, we affirm the finding of contempt.  But, because the order of confinement was for a fixed term, did not include purge conditions, and confinement was incorrectly imposed as punishment, we reverse the order of confinement.  We remand for a determination of whether confinement is reasonably likely to produce compliance.  If so, the district court may order confinement with provisions for appellant to gain his release through compliance or a good faith effort to comply with stated purge conditions.

 

D E C I S I O N

 

            Factual findings of a civil contempt order are subject to reversal only if they are clearly erroneous, and the district court's decision whether to invoke its contempt powers is subject to reversal only if there is an abuse of discretion.  Mower County Human Servs.  v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1996).  "Civil contempt proceedings are designed to induce future performance of a valid court order, not to punish for past failure to perform."  Mahady v. Mahady, 448 N.W.2d 888, 890 (Minn. App. 1989) (citing Minn. Stat. § 588.12).

            To invoke the district court's civil contempt powers, the supreme court requires that:

(1)              the court has jurisdiction over the subject matter and the person;

(2)              a clear definition of the acts to be performed;

(3)              notice of the acts to be performed and a reasonable time within which to comply;

(4)              an application by the party seeking enforcement giving specific grounds for complaint;

(5)              a hearing, after due notice, to give the nonperforming party an opportunity to show compliance or the reasons for failure;

(6)              a formal determination by the court of failure to comply and, if so, whether conditional confinement will aid compliance;

(7)              an opportunity for the nonperforming party to show inability to comply despite a good faith effort; and

(8)              the contemnor's ability to gain release through compliance or a good faith effort to comply.

 

Swancutt, 551 N.W.2d at 223 (citing Hopp v. Hopp, 279 Minn. 170, 174-75, 156 N.W.2d 212, 216-17 (1968)). 

In an initial contempt proceeding, the court may find the obligor in conditional contempt and set conditions to allow the obligor to purge himself of contempt.  At a subsequent stage, the obligor is entitled to be heard on questions of performance or excusable non-performance of purging conditions.

 

Mahady, 448 N.W.2d at 891.

            In this case, the district court found appellant in contempt of court at the initial hearing and set three conditions whereby appellant could purge his contempt: (1) diligently pursue vocational rehabilititation and/or job search efforts through the Work Force Development Program; (2) report all job search efforts to Mower County Human Services at least once every two weeks;[1] and (3) report to Mower County Human Services within 48 hours of accepting employment.  Appellant challenges the order from the second hearing, claiming that he made a good-faith effort to comply with the purge conditions so that the court erred by finding him in contempt and by omitting purge conditions from the confinement order.

            "Findings of fact are considered clearly erroneous only if they are not reasonably supported by the evidence."  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 102 (Minn. 1999)(citing Minn. R. Civ. P. 52.01).  Appellant concedes that the district court correctly found him capable of performing sedentary jobs, but claims the district court erred by finding that there were sedentary jobs available.  But, the record demonstrates that appellant failed to obtain employment and failed to report any job search efforts to Mower County Human Services from the date of the order setting the purge conditions, September 23, 2002, through February 10, 2003.  Based on this evidence, the district court's finding that appellant failed to make good faith efforts to gain employment and had therefore failed to purge himself of contempt is not clearly erroneous.  "[C]hild support obligors in contempt proceedings ‘should not be held' to have met their burden of proof when they have failed to make a good faith effort to conform."  Mahady, 448 N.W.2d at 892 (quoting Hopp, 279 Minn. at 175, 156 N.W.2d at 217)).  We affirm the district court's contempt finding.

            We agree with appellant, however, that the order of confinement is defective.  "A civil contempt order cannot impose a fixed sentence, but must allow the contemnor to obtain release by compliance."  Mahady, 448 N.W.2d at 890.  In this case, the order erroneously indicated that confinement was punishment for past failure to perform, imposed a fixed term, and failed to include purge conditions.  And the record does not reflect that the district court considered whether confinement would aid compliance.  We therefore reverse the order of confinement and remand for consideration of whether confinement will aid compliance, and if so, entry of an order for confinement with appropriate purge conditions.

            Affirmed in part, reversed in part, and remanded.

 

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Respondent erroneously asserts that one of the purge conditions was a requirement that appellant make five job applications per week and report those applications in writing to human services.  Although this requirement was imposed on appellant in an order dated September 13, 2002, the condition was imposed in connection with a continuance order that did not contain a finding of conditional contempt.  This requirement was superceded by the order dated September 23, 2002, finding appellant in contempt and setting purge conditions.