The Nebraska Supreme Court recently clarified when and how a court can use its contempt power to make sure that its orders are being obeyed. In Sickler v. Sickler, the Court was presented with a long-running dispute regarding money in a retirement account. The nub of the case centers around a 2001 divorce decree that awarded about $45,000 of a retirement account to the former Madeline Sickler. Before she was able to get that money (and for reasons which are not entirely relevant to this discussion), Steven Sickler made enough withdrawals from the account that there was no longer enough left to cover Madeline’s share.
After a series of arguments, the district court eventually found in 2015 that Steven was in contempt of court for taking Madeline’s money out of the account, and ordering him to give Madeline the amount she was due by a date certain or serve ninety days in jail. Steven challenged that ruling on a number of grounds.
But before we discuss Steven’s appeal, it’s important to understand how contempt works. The point of “civil contempt” (which is what the court was trying to use) is to use the court’s power to require a person to obey the provisions of a court order. The cliché learned in law school is that for civil contempt, the contemnor (the person who hasn’t followed the order) should “hold the keys to his jail cell in his hand.”
In other words, the person in contempt should be able to comply with the court’s order and avoid the punishment. That’s why the court in this case said that if Steven paid Madeline what she was due in the original decree, then he wouldn’t have to serve the time in jail. The purpose of the jail sentence was not to punish Steven, but to “encourage” him to follow the court’s order.
But Steven had to be found in contempt first. And the mere fact that he didn’t do what the court ordered isn’t enough to find him in contempt. A court also has to find that a contemnor like Steven had the ability to comply with the order and chose not to. Only if this willful disobedience of a court order is proven can a court find someone in contempt and put together a “purge plan” for the contemnor to get in compliance with the court’s orders to avoid punishment.
Steven’s first challenge of the court’s decision about his contempt was that he was being put into a debtor’s prison, in violation of the Nebraska Constitution. Since the founding of the United States, American law has rejected the idea of imprisoning people as a means to collect debts. The Nebraska Constitution specifically bars imprisonment of a debtor to coerce payments.
So what’s the difference between that and what the court did to Steven? The use of contempt for collection of child support has been challenged as a “modern-day debtor’s prison,” as you can see here and here. According to the Nebraska Supreme Court, it depends on what a “debt” is. The Supreme Court defined a debt as “an obligation to pay money from the debtor’s own resources, which arose out of a consensual transaction between the creditor and the debtor.”
That’s different than enforcing the provisions of a divorce decree, like child support or alimony – or a property division, as the Nebraska Supreme Court has now decided. The provisions of a divorce decree are not a debt, the Court said, but rather “an order designed to secure the performance of a legal duty in which the public has an interest.”
And because the public has an interest in the provisions of divorce decrees being observed, the Court has the inherent authority through its power of contempt to use sanctions – up to and including jail time – to enforce those orders. Using contempt to enforce child support or alimony was well established in Nebraska law. In Sickler, the Court made it clear that contempt could be used to enforce property division awards in a divorce decree as well.
Steven’s next argument was that the court didn’t find his actions were “willful.” Remember, contempt isn’t as simple as deciding whether or not an order was followed. A court has to specifically find that a contemnor had the ability to comply with an order and chose not to before using its contempt power. That willfulness element is what separates a contempt proceeding from a medieval English debtor’s prison.
In this case, the Supreme Court had little difficulty finding Steven’s actions to be willfully contemptuous of the divorce decree. While there were questions about what Madeline should or shouldn’t have done to get her money out of the account, there was no question that Steven knew he was taking money he wasn’t supposed to when he made those withdrawals. Because Steven knew he was ordered not to take the money, and chose to anyway, the Supreme Court agreed that Steven’s actions were willfully contemptuous.
Steven’s final argument was that he didn’t have the ability to pay over $37,000 within 17 days, and as a result he didn’t have the “present ability to comply” with the court’s purge plan. The Supreme Court agreed that any purge plan – which, remember, gives a contemnor the “keys to his own jail cell” – must be within the contemnor’s present ability to comply. This reinforces why civil contempt is not a debtor’s prison – a contemnor can only go to jail if he has the ability to do what the court orders, and simply chooses not to.
There is such a thing as criminal contempt, as opposed to civil contempt, where a court can punish someone for past behavior. But if a court’s action is pure punishment, rather than coercing future compliance with an order, then the contemnor gets all of the constitutional protections due to a criminal defendant, such as a presumption of innocence, right to jury trial, and right to court-appointed counsel if indigent.
For the most part, the Supreme Court found that Steven’s purge plan was a civil contempt order, because he had the ability to comply with the court’s order and avoid jail. The Supreme Court did direct that, in the future, lower courts must specifically make a finding that a contemnor has a “present ability to comply” with any purge plan, to ensure only people who willfully choose to disobey a court order go to jail.
And the Supreme Court did modify a part of Steven’s contempt order. In the original order, once Steven started his ninety-day sentence, there was no way for him to get out of jail even if he later complied with the court’s order and gave Madeline her share of the investment account. The Supreme Court said that violated Steven’s rights, and modified the order allowing Steven to be released at any point during his ninety-day sentence if he complies with the court’s order.
Finally, the Supreme Court clarified how contempt hearings work. Burdens of proof are very important in law. For contempt action, the party asking a contemnor be held in contempt has the burden to proof willful disobedience. Much like the prosecution in a criminal case, if the party asking for contempt can’t prove its case, no contempt will be found.
But once a contempt finding has been made and incarceration is a possibility, the burden shifts. According to the Supreme Court, it is the burden of the contemnor to show he should not be incarcerated. That means the judge can order the contemnor to a jail sentence – so long as the purge plan is clearly laid out for the contemnor to avoid jail – and the sentence will stand unless the contemnor can prove he does not have the present ability to comply with that plan.
Contempt proceedings are an important tool used by parties and by judges to make sure that orders are followed. In Sickler, the Nebraska Supreme Court laid out some important rules balancing the rights of a contemnor with the authority of the Court to enforce its orders.
Sickler v. Sickler can be cited as 293 Neb. 521 (Neb. 2016), and the full opinion can be found here.
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