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State v. Kyle B.

Supreme Court of Nebraska

January 26, 2018

State of Nebraska on behalf of Mariah B. and Renee B., minor children, appellee.
Kyle B., appellant.

         1. Contempt: Appeal and Error. In a civil contempt proceeding where a party seeks remedial relief for an alleged violation of a court order, an appellate court employs a three-part standard of review in which (1) the trial court's resolution of issues of law is reviewed de novo, (2) the trial court's factual findings are reviewed for clear error, and (3) the trial court's determinations of whether a party is in contempt and of the sanction to be imposed are reviewed for abuse of discretion.

         2. Contempt: Due Process: Judgments: Appeal and Error. Though the ability to pay the purge amount in a civil contempt proceeding is a factual question that is reviewed for clear error, whether the facts result in a due process violation is a question of law.

         3. Contempt: Words and Phrases. Civil contempt requires willful disobedience as an essential element. "Willful" means the violation was committed intentionally, with knowledge that the act violated the court order.

         4. Contempt. If it is impossible to comply with the order of the court, the failure to comply is not willful.

         5. Words and Phrases: Appeal and Error. Willfulness is a factual determination to be reviewed for clear error.

         6. Contempt: Proof: Evidence: Presumptions. Outside of statutory procedures imposing a different standard, it is the complainant's burden to prove civil contempt by clear and convincing evidence and without any presumptions.

         7. Contempt: Presumptions: Child Support. Neb. Rev. Stat. § 42-358(3) (Reissue 2016) provides that a rebuttable presumption of contempt shall be established if a prima facie showing is made that court-ordered child or spousal support is delinquent.

         [298 Neb. 760] 8. ___: ___: ___. Necessarily, the rebuttable presumption of contempt provided by Neb. Rev. Stat. § 42-358(3) (Reissue 2016) encompasses the essential element of willfulness.

         9. Contempt: Evidence: Child Support. In contempt proceedings, both Neb. Rev. Stat. § 42-358(3) (Reissue 2016) and logic dictate that a valid child support order is evidence of the parent's ability to pay the amount specified therein.

         10. Child Support. The parent's ability to pay is an important consideration in setting the amount of a child support order.

         11. Child Support: Rules of the Supreme Court: Presumptions. Child support established under the Nebraska Child Support Guidelines is presumed correct, unless one or both parties present sufficient evidence to rebut that presumption.

         12. Trial: Witnesses: Evidence. Triers of fact have the right to test the credibility of witnesses by their self-interest and to weigh it against the evidence, or the lack thereof.

         13. Constitutional Law: Criminal Law: Contempt: Due Process. A criminal or punitive sanction is invalid if imposed in a proceeding that is instituted and tried as civil contempt, because it lacks the procedural protections that the Constitution would demand in a criminal proceeding.

         14. Contempt: Sentences. A present inability to comply with a contempt order is a defense, not necessarily to contempt, but to the sanction of incarceration.

         15. Contempt: Judgments. When a purge order involves payment of money, the sum required to purge oneself of contempt must be within the contemnor's ability to pay within the time period provided in the order, taking into consideration the assets and financial condition of the contemnor and his or her ability to raise money.

         16. Contempt. Contemnors in civil contempt must carry the keys of their jail cells in their own pockets.

         17. Contempt: Presumptions: Child Support. The statutory presumption of contempt under Neb. Rev. Stat. § 42-358(3) (Reissue 2016) is inapplicable to the question of whether the purge plan is punitive.

         18. Contempt: Judgments. Despite any overlap with the finding of willful disobedience in the underlying contempt, a court that imposes incarceration as part of civil contempt proceedings shall make express findings regarding the contemnor's ability to comply with the purge order.

         19. Contempt: Proof. It is the contemnor who has the burden to assert and prove the inability to comply with the contempt order as a defense to incarceration.

         [298 Neb. 761] 20. ___: ___. The burden of both production and persuasion is on the contemnor to show the present inability to comply.

         21. ___: ___. A showing of inability to comply with a purge order entails attempts to exhaust all resources and assets or borrow sufficient funds and the inability to thereby secure the funds to comply with the order.

         22. Contempt. The contemnor's inability to comply with a contempt order cannot be voluntarily created, for example by not diligently seeking a job at one's earning potential.

         23. ___. The inability-to-pay threshold for determining that the contemnor lacks the keys to his or her own jail cell is higher than the indigence threshold for appointing counsel. Thus, a finding of indigency for purposes of retaining legal counsel does not preclude a finding that the contemnor is able to pay whatever purge amount has been set by the court.

         24. Child Support. The support of one's children is a fundamental obligation which takes precedence over almost everything else.

         Appeal from the District Court for Lancaster County: Kevin R. McManaman, Judge. Affirmed.

          Nancy R. Wynner, of Olson, Zalewski & Wynner, L.L.P.. for appellant.

          Joe Kelly, Lancaster County Attorney, and Jason M. Cooper and Braden W. Storer, for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Heavican, C.J.


         A father appeals from an order of civil contempt for failure to pay child support. He was found indigent for purposes of appointment of counsel in the contempt proceedings. He asserts that he did not willfully disobey the support order. Further, he argues that the purge plan set forth in the contempt order is impossible to perform, making it a punitive rather than coercive sanction. We affirm.

         [298 Neb. 762] BACKGROUND

         Paternity and Child Support Order

         In a paternity action filed by the State due to the involvement of the "Title IV-D Division"[1] of the Department of Health and Human Services (DHHS), Kyle B. was established as the father of Mariah B. and Renee B. Genetic testing had determined with a probability of 99.999 percent that Kyle was the biological father of the children.

         Kyle was ordered to pay $230 in child support per month beginning on December 1, 2015. The amount of Kyle's monthly child support obligation was established in accordance with the child support guidelines. The district court referee calculated that Kyle was capable of earning $8 per hour and of working 40 hours per week, for a total monthly earning capacity of $1, 387. By failing to respond to the State's request for admissions, Kyle was deemed to have admitted this earning potential. Attached to the referee's report was evidence that Kyle had earned $4, 306.90 working at a roofing company from October to December 2014 and had earned $3, 578.62 working there from July to September 2014.

         Kyle did not attend the hearing at which evidence was submitted pertaining to paternity and child support, and his counsel withdrew. Kyle did not appeal from the child support order.

         Contempt Order

         On June 7, 2016, the court issued an order for Kyle to appear at a hearing scheduled for July 7 and show cause why he should not be in contempt for willfully failing to comply with the December 2015 order. The order to appear required Kyle to bring to the hearing his income tax returns for the past 3 years, as well as his last three wage statements. Kyle was appointed counsel on July 8, 2016, upon a finding of [298 Neb. 763] indigency. On September 12, the court issued another order to appear, at a hearing scheduled for November 2, on the order to show cause.

         Kyle appeared at the November 2, 2016, hearing, represented by his appointed counsel. At the hearing, the State introduced a certified copy of a history of Kyle's payments to DHHS. The document demonstrated that Kyle had never made payments on the December 2015 order and that he was $2, 551.59 in arrears.

         Kyle did not submit income tax returns, wage statements, or any other financial documentation. The only evidence presented by Kyle at the hearing was his own testimony. Kyle testified that he was unemployed. Kyle stated that his "last good job" was working as a "roof loader" for the roofing company. ...

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