Sheehan v. Ryea

Sheehan v Ryea (00-084); 171 Vt. 511; 757 A.2d 467 

[Filed 31-May-2000] 


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 00-084

                              MARCH TERM, 2000


Colin V. Sheehan	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Chittenden Family Court
                                       }	
Dorothy D. Ryea	                       }
                                       }	DOCKET NO. 65-2-93Cndm

Trial Judge: Linda Levitt, J.

             In the above-entitled cause, the Clerk will enter:


       Defendant Dorothy Ryea appeals from the Chittenden Family Court's
  judgment of civil contempt  ordering her "to be incarcerated for a period
  of sixty (60) days, or until the sum of $2,147.88 is  paid."  She argues
  that the court erred because she has no present ability to pay.  We reverse
  and  remand.

       Defendant and two of her children reside with Dennis Girard, who earns
  a wage of $9.50 an hour.  Her former husband, Colin Sheehan, has custody of
  her third child, Jessica Sheehan.  Defendant  is required by an October 4,
  1993 child-support order to pay $178.99 per month in support of  Jessica
  Sheehan.  In March 1999, as a result of defendant's failure to pay this
  support, the Office  of Child Support (OCS) filed an enforcement action. 
  The court heard the matter on June 2, 1999,  and issued a child-support
  order that required defendant, in addition to providing child support, to 
  (1) apply for social security benefits; (2) secure an appointment with the
  State Department of  Employment and Training to address her
  underemployment; (3) file a tax return for 1997 with the  court; and (4)
  provide an assessment from her doctor, who had been treating her for
  disabling pain  from a chronic back condition.  At the next hearing, the
  court found defendant in contempt for her  continued failure to pay child
  support and her failure to comply with the June 2 child-support  order. 
  The contempt order, dated October 29, 1999, declared that defendant could
  purge herself  of contempt with a payment of $2,147.88 to OCS and, if
  payment was not made, the court would  issue a mittimus for her arrest.

       Defendant did not pay the purge amount and, at the mittimus hearing,
  testified that she did not (1)  apply for social security because she
  attempted to find employment and believed that she could not  receive
  social security while working, (2) file her tax return with the court
  because of problems  obtaining her W-2 forms from the Internal Revenue
  Service, and (3) obtain an assessment from her  doctor because he had told
  her not to work.  Defendant testified that she had recently held jobs,  but
  had voluntarily quit due to her back condition.  She asserted that she had 

 

  met with a vocational rehabilitation representative, but did not follow
  through with the proposed  plan. 

       The court found that, although defendant claimed that she is trained
  as a medical assistant, she did  not seek employment in that field.  The
  court also noted that defendant did not provide any  medical evidence of
  her inability to work.  After the family court denied of her request to
  stay its  contempt order, this Court granted a stay pending appeal.

       Civil contempt is a coercive measure, see In re C.W., ___ Vt. ___,
  ___, 739 A.2d 1236, 1239  (1999), which is necessarily discretionary, see
  Spiable v. Hunt, 134 Vt. 332, 334, 360 A.2d 51,  ___ (1976).  In comparison
  to criminal contempt, where the court's purpose is to punish, the court 
  using civil contempt seeks to compel compliance with a court order. 
  Imprisonment of indefinite  duration may be the means to compel a party to
  do some act ordered by the court, and the party  must be released on
  compliance with the order.  Cf. In re Sage, 115 Vt. 516, 517, 66 A.2d 13,
  14.  I have characterized civil contempt as follows:

     Only compensatory fines or coercive sanctions may be imposed 
     on a civil contemnor, and these must be purgeable, i.e., they must be 
     capable of being avoided by defendants through adherence to the 
     court's order.  Thus, it is commonly said that the contemnor holds 
     the keys to the jail and stands committed only until the act required 
     by the court is performed.

  Russell v. Armitage, 166 Vt. 392, 407-08, 697 A.2d 630, 640 (1997) (Morse,
  J., concurring)  (quotations and citations omitted).

       Here, however, the court failed to provide defendant with "a key to
  the jail," except to pay an  amount of money.  The court found that:

     Defendant is in contempt of the child-support order of June 2, 1999, 
     in that she has failed to pay child support in accordance therewith, 
     she failed to apply for Social Security Disability benefits, she failed 
     to secure an appointment with Department of Employment and 
     Training . . . to address her underemployment, she failed to file a 
     tax return for 1997 with the [c]ourt, and she failed to provide the 
     results of an assessment by Dr. B[auman].

       The court did not address defendant's ability to pay $2,147.88. 
  "[C]ivil contempt may not be  ordered unless it is shown that the defendant
  has the present ability to comply with the court's  [underlying] directive,
  and the defendant may further secure immediate release from incarceration 
  simply by acceding to the order." Russell, 166 Vt. at 408, 697 A.2d  at 640. 
  Instead, the court  found that the requirements, enumerated in the June 2
  order - application for Social Security  Disability benefits; meeting with
  the Department of Employment and Training; filing a tax return 

 

  for 1997; and obtaining an assessment from Dr. Bauman, all of which
  underpinned or related to  defendant's acquiring the ability to pay child
  support - were not satisfied.  Incarceration  until  payment of $2,147.88
  would not coerce defendant to perform these directives, nor would she have 
  purged the order of contempt had she complied with them.

       The "key to the jail" in this case was the payment of $2,147.88. 
  Failure to pay meant that  defendant would serve the full sixty days in
  jail.  For defendant, without an ability to pay that  sum, this amounted to
  punishment akin to criminal contempt.  See International Union, United 
  Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828-29 (1994) (fixed sentence
  of imprisonment  is punitive and criminal if imposed retrospectively for
  completed act of disobedience such that  contemnor cannot avoid or
  abbreviate confinement through later compliance).  Defendant may well  have
  deserved the court's finding her in criminal contempt; however, the court
  did not pursue  criminal sanctions.

       The order of contempt is reversed, and the cause remanded for further
  proceedings. 


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                                 Dissenting


       SKOGLUND, J.  dissenting.  The history of this case is as set forth in
  the majority's decision.  I  submit, however, that the trial judge made an
  oral finding of a present ability to pay when she  found defendant in
  contempt at the hearing on February 29, 2000.  The court stated that
  defendant  was "purposefully not paying child support, although she would
  have the ability to pay some."   Further, the trial judge subsequently
  produced a written decision in this matter, issued March 10,  2000, wherein
  she made specific findings documenting defendant's willful refusal to
  comply with  any of the child support orders issued by the magistrate or
  the court, and found:  "Although  Defendant has the ability to do so, she
  willfully failed to pay the purge amount of $2,147.88,  without good cause
  shown."  Therefore, defendant has the keys to the jail.  I would affirm the
  trial  court's ruling and make her use them.


Dissenting:	                              BY THE COURT:



_______________________________________     ___________________________________
Marilyn S. Skoglund, Associate Justice      Jeffrey L. Amestoy, Chief Justice

                                            ___________________________________
	                                    John A. Dooley, Associate Justice

                                            ___________________________________
                                            James L. Morse, Associate Justice

                                            ___________________________________     
                                            Denise R. Johnson, Associate Justice