Sazama v. State Ex Rel. Muilenberg

#23959-aff in pt & rev & rem in pt-DG

2007 SD 17

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

ED SAZAMA, Plaintiff, Respondent
and Appellant,

v.

STATE OF SOUTH DAKOTA,
EX REL., DAWN MUILENBERG, Defendant, Petitioner
and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
BON HOMME COUNTY, SOUTH DAKOTA

* * * *

HONORABLE GLEN W. ENG
Judge

* * * *
THOMAS E. ALBERTS
Avon, South Dakota Attorney for plaintiff,
respondent and appellant.

LAWRENCE E. LONG
Attorney General
Pierre, South Dakota

DOUGLAS R. KETTERING
Special Assistant Attorney General
Yankton, South Dakota Attorneys for defendant,
petitioner and appellee.

* * * *
CONSIDERED ON BRIEFS
ON AUGUST 28, 2006

OPINION FILED 02/21/07
#23959

GILBERTSON, Chief Justice

[¶1.] Ed Sazama (Sazama) appeals a judgment of contempt for failure to pay

child support. Sazama also appeals an order imposing ten days in jail for each

month that he fails to pay child support upon the filing of an affidavit of failure to

pay. We affirm in part and reverse and remand in part.

FACTS AND PROCEDURE

[¶2.] Sazama and Dawn Muilenberg (Muilenberg) had two children during

their relationship. After the breakup of their relationship in 1997, a court order

dated March 4, 1998, decreed that the children would reside with Muilenberg and

Sazama was ordered to pay child support in the amount of $386.00 per month

beginning November 1, 1997. The order also required Sazama to pay $256.00 per

month for child care expenses and an additional $50.00 per month in arrearages.

[¶3.] After the 1997 breakup, Sazama moved to Colorado and obtained

employment. His wages were garnished to pay the child support order until 2000

when he was injured and was no longer working. Sazama became homeless and

lived on the streets in Colorado until he moved back to South Dakota sometime in

2002. Upon returning to South Dakota, he remained homeless and lived on the

streets in Yankton for approximately eighteen months until he moved in with his

girlfriend. He lived with his girlfriend for approximately another eighteen months

prior to this appeal. Sazama claims to be an alcoholic and unable to control his

drinking.

[¶4.] Muilenberg moved from South Dakota to Nebraska to be closer to her

family after the child support judgment and order were entered. She did receive

some child support from Sazama while living in Nebraska. However, by the time of
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the contempt proceeding, Sazama had paid a total of $2,624.88 in 1997; $589.55 in

2001; $255.20 in 2002; and $126.00 in 2004 in child support, and had arrearages

totaling $49,224.81 while Muilenberg was domiciled in Nebraska. Muilenberg

returned to South Dakota in 2003. Child Support Enforcement records indicate

Sazama failed to make any payments during the eight months Muilenberg lived in

South Dakota before filing the present action.

[¶5.] In August 2005, the State of South Dakota began contempt

proceedings against Sazama, who was served with an order to show cause based on

an affidavit of arrearages executed by Joan Gudahl, Officer of Child Support

Enforcement (Gudahl). The affidavit showed that Sazama had accrued child

support arrearages in the amount of $62,064.81 from September 1, 1996 through

August 2005. Child Support Enforcement records indicated that Sazama failed to

make any payments for the support of his children commencing July 2003 through

August 2005. 1

[¶6.] Counsel was appointed for Sazama, and a hearing was held on the

matter on November 9, 2005. Sazama testified that he had begun working for BP

Painting on October 10, 2005, and prior to that had done yard work and odd jobs for

cash in 2004 and 2005. He also testified that he had applied for and been denied

Social Security disability income, which was denied due to the agency’s assessment

that he had some ability to work. Sazama further testified he was aware he had a

1. The South Dakota Child Support Enforcement records show nothing from
July 2003 through August 2005, although the circuit court’s findings of fact
reflect the $126.00 payment in 2004.

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child support obligation payable to Muilenberg and believed it to be somewhere in

the range of $300 per month, although he testified the State of Colorado had

garnished approximately $200 per week during his employment in 1999 and 2000.

Sazama presented no legal excuse for his failure to pay child support during the

time he was employed or unemployed. Instead, he conceded that he did not make

any attempt at payment after leaving Colorado, offering as his reason that he did

not know where Muilenberg was living.

[¶7.] The circuit court found Sazama was aware of the child support order,

failed to comply with the order, and had no legal excuse for non-compliance. It also

found he had the ability to provide for his children but failed to do so, and found

him in contempt of court for failure to pay child support. The circuit court

sentenced Sazama to ten days in the Bon Homme County Jail beginning the first of

each month if he failed to pay the child support for the previous month. It entered a

judgment effective through October 27, 2005, in the amount of $62,783.63 and

informed Sazama he could purge himself of the contempt by making his required

monthly payments as determined based on his monthly income. The court also

noted that it believed Sazama was using his alcoholism as an excuse not to work,

and that he needed to seek assistance with his addiction and maintain employment.

The circuit court entered findings of fact and conclusions of law consistent with its

oral rulings.

[¶8.] Sazama appeals, raising three issues for this Court’s review:

1. Whether the circuit court had jurisdiction of the civil
contempt proceedings when the affidavit in support of the
show cause order did not include the necessary
jurisdictional allegations.

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2. Whether the circuit court erred when it found Sazama
had knowledge of an order, the ability to comply with the
order, and that he had willfully or contumaciously
disobeyed the order.

3. Whether the circuit court’s order setting the penalty
for continued disobedience violated Sazama’s due process
rights when the penalty imposed did not provide a
method for Sazama to purge himself of the contempt.

STANDARD OF REVIEW

[¶9.] “The issue of jurisdiction may be raised at any time and is reviewed by

this [C]ourt de novo.” Wold Family Farms, Inc. v. Heartland Organic Foods, Inc.,

2003 SD 45, ¶12, 661 NW2d 719, 723 (citing Devitt v. Hayes, 1996 SD 71, ¶6, 551

NW2d 298, 300). A circuit court’s remedy or punishment for contempt of court is

reviewed under the abuse of discretion standard. Id. (citing Harksen v. Peska, 2001

SD 75, ¶10, 630 NW2d 98, 101). However, when a claim asserts a violation of a

constitutional right, our standard of review is de novo. State v. Ball, 2004 SD 9,

¶21, 675 NW2d 192, 199 (citing State v. Hodges, 2001 SD 93, ¶8, 631 NW2d 206,

209). “We review the circuit court’s conclusions of law under the de novo standard.”

A-G-E Corp. v. State, 2006 SD 66, ¶13, 719 NW2d 780, 785 (citations omitted). We

review the circuit court’s findings of fact under the clearly erroneous standard.

Keller v. Keller, 2003 SD 36, ¶8, 660 NW2d 619, 622 (quoting Harksen, 2001 SD 75,

¶9, 630 NW2d at 101).

ANALYSIS AND DECISION

[¶10.] 1. Whether the circuit court had jurisdiction of the
civil contempt proceedings when the affidavit in
support of the show cause order did not include
the necessary jurisdictional allegations.

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[¶11.] Our prior decisions have treated the failure to precisely plead all

factual elements of contempt as a “jurisdictional” defect; i.e., one that deprives the

court of subject matter jurisdiction. Our seminal case of Thomerson v. Thomerson,

underscored this premise stating that “[u]nless every material fact constituting the

alleged violation is stated in the affidavit, the court has no jurisdiction.” 387 NW2d

509, 513 (SD 1986) (citation omitted). Thomerson’s statement comes from a line of

authorities originating in 1871. In our view these cases are inconsistent with

current understandings of notice pleading and subject matter jurisdiction. Having

reconsidered this matter, we now discontinue the practice of attaching

“jurisdictional” consequences to technical pleading deficiencies in pleadings seeking

civil contempt.

[¶12.] Thomerson is based upon Simmons v. Simmons, 66 SD 76, 80, 278 NW

537, 539 (1938) (citing In re Solberg, 51 SD 246, 213 NW 9 (1927); Freeman v. City

of Huron, 8 SD 435, 66 NW2d 928 (1896); State v. Sweetland, 3 SD 503, 54 NW 415

(1893)). The jurisdictional language at issue originated in Sweetland’s statement

that the affidavit must “‘show a case in point of jurisdiction within the provisions of

the law by which such proceedings are authorized. . . .’” 3 SD at 506, 54 NW at 416

(quoting Batchelder v. Moore, 42 Cal 412, 414-15 (1871)) (citations omitted). 2 The

2. It can certainly be argued that Sweetland’s quoted language did not require
that every factual element of contempt must be pleaded for the court to have
subject matter jurisdiction to hear the case. In our view, this quoted
language should only be taken to mean that the complaint must set forth
sufficient facts to show that the nature of the case is one over which the court
has the power to act.

(continued . . .)
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cases following Sweetland expanded this jurisdictional language to require that

every material fact constituting the alleged contempt must be in the affidavit or the

court has no jurisdiction. Thomerson, 387 NW2d at 513 (citation omitted). 3

________________________
(. . . continued)
However, the quoted Sweetland language was expanded to unequivocally
state that “[u]nless every material fact constituting the alleged violation is
stated in the affidavit, the court has no jurisdiction.” Thomerson, 387 NW2d
at 513 (citation omitted). Stretched to this extent, Sweetland’s language is of
dubious precedential value because it relies upon Batchelder, a California
case interpreting a California statute that specifically required “an affidavit
of the facts constituting the contempt. . . .” 42 Cal at 415. South Dakota has
no comparable statutory requirement. In fact, as explained infra ¶17, South
Dakota courts have inherent subject matter jurisdiction in cases of contempt.

3. For example, in Freeman, the affidavit failed to state a case of contempt, and
the case was dismissed using jurisdictional language. 8 SD at 435, 66 NW at
929. However, in affirming the dismissal, Freeman extended Sweetland’s
language stating: “the court did not have jurisdiction to inquire into [the
defendant’s] conduct, unless every material fact constituting the alleged
violation is stated in the affidavit upon which the contempt proceeding is
based.” 8 SD at 439, 66 NW at 929 (citing Sweetland, 3 SD 503, 54 NW 415).

Solberg, which was based on Freeman (and Sweetland), continued this
unduly expansive extrapolation. Like Freeman, Solberg stated “that the
court has no jurisdiction to inquire into the conduct of parties charged with
contempt, ‘unless every material fact constituting the alleged violation is
stated in the affidavit upon which the contempt proceeding is based.’ ” 51 SD
at 248, 213 NW at 10, 11 (citations omitted). Simmons merely reiterated the
language of Freeman and Solberg. See, 66 SD at 80, 278 NW at 539.

With regard to Solberg, it must be noted, that the contemnor had been
arrested without any affidavit, complaint, or document invoking the court’s
jurisdiction. 51 SD at 247-48, 213 NW at 10. Therefore, the Court was
merely stating that some jurisdictional document was required when the
contempt was not committed in the presence of the court. The actual holding
of the case was:

Where the acts constituting the contempt are committed in the
immediate presence of the court no affidavit or sworn complaint
charging the acts is required, for the judge has personal
knowledge of the acts. But where the acts relied upon as
(continued . . .)
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[¶13.] However, this jurisdictional analysis does not reflect modern notice

pleading jurisprudence. Under SDCL 15-6-8(a), pleadings need only contain “(1) [a]

short and plain statement of the claim showing that the pleader is entitled to relief;

and (2) [a] demand for judgment. . . .” Thus, “ ‘[u]nder the Rules[,] a case consists

not in the pleadings, but the evidence, for which the pleadings furnish the basis.

Cases are generally to be tried on the proofs rather than the pleadings.’ ” 5 Charles

Alan Wright and Arthur R. Miller, Federal Practice and Procedure: Civil 3d § 1182

(quoting De Loach v. Crowley’s Inc., 128 F2d 378, 380 (5thCir 1942)). That is

because:

[T]he function of a pleading in [current] practice is to inform the
opposing party and the court of the nature of the claims and
defenses being asserted by the pleader and, in case of an
affirmative pleading, the relief being demanded. . . . The rules
reflect a realization that the supposed effectiveness of pleadings
in narrowing and defining the issues - a conception that
characterized the common law and code procedural systems - is
largely a myth, this function being more effectively performed by
discovery, summary judgment, and pretrial conferences.

Id. (emphasis added). Thus, under modern pleading practice, pleadings need only

reflect the nature of the claim asserted and the relief requested.

[¶14.] Similarly, subject matter jurisdiction is only dependent upon the

nature of the proceeding and the relief sought. Subject matter jurisdiction is:

________________________
(. . . continued)
constituting the contempt are not committed in the presence of
the court, such affidavit or sworn complaint is necessary to give
the court jurisdiction to proceed in the matter.

Id. at 248, 213 NW at 10.

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“a court’s competence to hear and determine cases of the general
class to which proceedings in question belong; the power to deal
with the general subject involved in the action . . . deals with the
court’s competence to hear a particular category of cases.”

State ex rel Joseph v. Redwing, 429 NW2d 49, 51 (SD 1988) (involving a case of

contempt) (citation omitted). Thus, subject matter jurisdiction is not determined by

technical pleading requirements but by “ ‘[t]he subject, or matter presented for

consideration; the thing in dispute; the right which one party claims as against the

other, as the right to divorce; . . . [the n]ature of cause of action, and of relief sought.

. . .’ ” Redwing, 429 NW2d at 51 (citation omitted). Because South Dakota circuit

courts are courts of general jurisdiction, 4 they have the power to hear the class or

category of cases seeking contempt for the contumacious failure to comply with

child support orders. As this Court noted over 100 years ago, the “power . . . to

coerce obedience to [an] order of the . . . court . . . exists by reason of the inherent

powers of that court, and not by reason of any express statutory authority.” In re

Taber, 13 SD 62, 67, 82 NW 398, 400 (1900). Further, this power to hear cases of

contempt includes the power to coerce compliance through punishment. There can

be “ ‘no doubt that the power to punish for contempt is an inherent one, for,

independent of legislation, it exists, and has always existed, in the courts of

England and America.’ ” State v. Shumaker, 157 NE 769, 775 (Ind 1927) (quotation

and citations omitted). For these reasons, the circuit court unquestionably had

4. See Christians v. Christians, 2001 SD 142, ¶45, 637 NW2d 377, 386
(Konenkamp, J., concurring specially) (citing SD Const Art V section 1)
(stating that South Dakota’s circuit courts have “general jurisdiction to hear
all civil actions”).

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subject matter jurisdiction to consider this case involving civil contempt. See

Redwing, 429 NW2d at 51.

[¶15.] Today’s decision, like that in an analogous case involving a

criminal action recognizes that a jurisdictional inquiry in this context is not

the correct one. In State ex rel. Engebritson v. Circuit Court for Grant and

Day Counties, 69 SD 454, 457, 11 NW2d 659, 660 (1943), a defendant

contended that a defective pleading (a failure to plead an essential element of

a crime) deprived the court of subject matter jurisdiction. 5 In rejecting that

contention, this Court recognized:

The inquiry in such case is not whether the complaint contains
such specific allegations as would make it good on demurrer or
motion in arrest, but whether it describes a class of offenses of
which the court has jurisdiction and alleges the respondent to be
guilty.

Id. at 459, 11 NW2d at 661 (quoting Ex Parte Turner, 102 A 943, 946 (Vt 1918)

(citing In re Coy, 127 US 731, 8 SCt 1263, 32 LEd 274 (1888)).

[¶16.] We recognize this distinction between pleading deficiencies and the

subject matter jurisdiction of the circuit court in cases of contempt. We will now

5. The defendant argued:
[I]n substance . . . that the circuit court of Grant County was without
authority to render judgment under this information purporting to
charge petitioner with the crime. In support of his position, petitioner
contend[ed] that the information fail[ed] to state a public offense in
that an essential element of the crime of perjury [was] the materiality
of the false testimony and it [was] contended the information show[ed]
that the false testimony was not material to the question at issue in
the trial where the false testimony was given.

Engebritson, 69 SD at 457, 11 NW2d at 660.

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discontinue use of the “jurisdictional” language of Thomerson and its underlying

authorities. Instead, we will only require that an affidavit or complaint simply

relate sufficient facts to show that the nature of the case and the relief sought are

matters involving indirect civil contempt. Of course, upon proper motion, a

defectively pleaded affidavit is subject to dismissal for failure to state a claim.

However, we will now cease to recognize technical pleading defects as generally

jurisdictional in the sense that they deprive the circuit court of the power to

consider the case.

[¶17.] Recognition of the distinction is significant in this case because

Sazama appeared and tried the case on the merits without objecting to the

sufficiency of the affidavit. Because Sazama acknowledges that his general

appearance and failure to challenge the affidavit waives non-jurisdictional issues on

appeal, he contends his pleading argument is jurisdictional. In so asserting,

Sazama attempts to challenge an otherwise factually sufficient affidavit through an

avenue of attack that is always available since a circuit court’s subject matter

jurisdiction may be considered at any time. See supra ¶9 (citing Wold Family

Farms, Inc., 2003 SD 45, ¶12, 661 NW2d at 723). However, as this opinion

elucidates, technical defects in pleading all facts material to the alleged violation do

not deprive the circuit court of subject matter jurisdiction to hear the case. In this

case, the affidavit unquestionably established that the nature of the case and relief

sought involved civil contempt, a class or category of cases over which the circuit

court had the power to act. Therefore, Sazama’s pleading issues do not involve the

circuit court’s subject matter jurisdiction. Because Sazama appeared generally and

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participated in the trial on the merits without objecting to the pleadings, he is now

precluded from appealing non-jurisdictional pleading defects not raised below. See

Taber, 13 SD at 71, 82 NW at 401 (noting that because an appellant made a general

appearance in a contempt proceeding, he was not in position to assert that the court

was without jurisdiction on appeal).

[¶18.] For all of the foregoing reasons, we now change our view of jurisdiction

and technical pleading defects. We hereby limit the jurisdictional language in Wold

Family Farms, Inc., 2003 SD 45, ¶20, 661 NW2d at 725; Thomerson, 387 NW2d at

513; Simmons, 66 SD at 80, 278 NW at 539; Solberg, 51 SD at 248, 213 NW at 10;

Freeman, 8 SD at 439, 66 NW2d at 929; and Sweetland, 3 SD at 506-07, 54 NW at

416. Therefore, we decline to consider issue one alleging an insufficiency in the

factual allegations of this affidavit.

[¶19.] 2. Whether the circuit court erred when it found
Sazama had knowledge of an order, the ability to
comply with the order, and that he had willfully
or contumaciously disobeyed the order.

[¶20.] The duty to provide for one’s children is a parent’s first duty. Taecker

v. Taecker, 527 NW2d 295, 298 (SD 1995) (citing Donohue v. Getman, 432 NW2d

281 (SD 1988)); see also SDCL 25-7-6.1. When a defendant advances the defense of

inability to pay under the terms of a child support order, the burden of proof is on

the defendant to establish the inability to fully comply and that any compliance was

to the fullest extent possible. Id. (citing Talbert v. Talbert, 290 NW2d 862, 863 (SD

1980); Bailey v. Bailey, 77 SD 546, 95 NW2d 533, 535 (SD 1959)). “Self serving

testimony alone is insufficient and corroboration is necessary to establish a defense

that a party cannot pay [child support].” Thomerson, 387 NW2d at 513 (citing

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Rosseau v. Gesinger, 330 NW2d 522, 524 (SD 1983) (noting the corroboration

principle in a case where the defendant’s claim that the existence of factors,

precluding his ability to pay alimony as ordered, were unsupported by any

evidence)).

[¶21.] The circuit court found Sazama’s unemployment and alcoholism were

voluntary conditions for which he had not sought treatment and assistance. The

court also found that the denial of Social Security disability income was indicative

of Sazama’s ability to work despite his claims to the contrary. Therefore, it

concluded that Sazama’s inability to pay was voluntarily induced and found him to

be in contempt of the 1997 child support order. The circuit court did not err when it

concluded that Sazama was in willful and contumacious disobedience of the order.

[¶22.] 3. Whether the circuit court’s order setting the
penalty for continued disobedience violated
Sazama’s due process rights when the penalty
imposed did not provide a method for Sazama to
purge himself of the contempt.

[¶23.] Contempt can be classified as either criminal or civil in nature. Wold

Family Farms, Inc., 2003 SD 45, ¶14, 661 NW2d at 723 (quoting Thomerson, 387

NW2d at 512). The purpose of the civil contempt proceeding is to force a party “to

comply with orders and decrees issued by a court in a civil action for the benefit of

an opposing party.” Id. (citation omitted). The nature of the sanction in a civil

contempt proceeding is intended to be coercive in nature, as it seeks to compel “the

person to act in accordance with the court’s order[,]” rather than to punish for past

conduct. Id. (citation omitted).

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[¶24.] In contrast, “[c]riminal contempt is a crime in an ordinary sense.” Int’l

Union, United Mine Workers of America v. Bagwell, 512 US 821, 826, 114 SCt 2552,

2556, 129 LEd2d 642 (1994) (quoting Bloom v. Illinois, 391 US 194, 201, 88 SCt

1477, 1481, 20 LEd2d 522 (1968)). Criminal contempt arises from spoken words or

acts committed in the presence of the court during a proceeding, or when the court

is in recess or adjourned that serve to “subvert, embarrass, or prevent the

administration of justice.” Wold Family Farms, Inc., 2003 SD 45, ¶14, 661 NW2d at

723 (quoting Thomerson, 387 NW2d at 512). In a criminal contempt proceeding, the

court imposes sanctions that serve to punish the contemnor for a past transgression

against the authority or dignity of the court. Id. (citation omitted). Such criminal

sanctions trigger constitutional protections, including the right to a jury trial when

fixed, retrospective imprisonment is imposed, implicating liberty interests, or non-

compensatory fines are imposed that the contemnor is unable to purge. Int’l Union,

United Mine Workers of America, 512 US at 829, 114 SCt at 2558, 129 LEd2d 642

(citations omitted).

[¶25.] Despite the obvious distinction in purpose, a civil contempt proceeding

can result in incarceration when the contemnor refuses to comply with an order or

decree of the circuit court, entered for the benefit of the opposing party. Wold

Family Farms, Inc., 2003 SD 45,¶14, 661 NW2d at 723 (quoting Thomerson, 387

NW2d at 512); see also Int’l Union, United Mine Workers of America, 512 US at 829,

114 SCt at 2558, 129 LEd2d 642. However, for the incarceration to be coercive and

the contempt proceeding to maintain a civil character, the incarceration cannot be

for a definite period and can only be imposed on the contemnor until such time as

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he complies with the order or he demonstrates that compliance is impossible. Wold

Family Farms, Inc., 2003 SD 45, ¶16, 661 NW2d at 724 (citing Thomerson, 387

NW2d at 514; Karras v. Gannon, 345 NW2d 856 (SD 1984)); see also Int’l Union,

United Mine Workers of America, 512 US at 828, 114 SCt at 2558, 129 LEd2d 642

(citations omitted).

[¶26.] Determining when the sanctions imposed in a contempt proceeding

trigger the constitutional safeguards applicable in criminal proceedings can be a

difficult task. Int’l Union, United Mine Workers of Am., 512 US at 827, 114 SCt at

2557, 129 LEd2d 642. This is because civil and criminal sanctions may bear a

superficial resemblance. Id. The analysis must extend beyond the intended or

stated purpose of the court in imposing the sanctions and must include an

examination of the character of the sanctions and the relief from the sanctions that

is available to the contemnor. Id. at 828, 114 SCt at 2557, 129 LEd2d 642 (citations

omitted).

[¶27.] A sanction will be civil and remedial in nature if it “coerces the

defendant into compliance with the court’s order, or compensates the complainant

for losses sustained.” Id. at 829, 114 SCt at 2558, 129 LEd2d 642 (citing United

States v. Mine Workers, 330 US 258, 303-04, 67 SCt 677, 701, 91 LEd2d 884

(1947)). Thus, the contemnor is said to “ ‘carr[y] the keys of his prison in his own

pocket.’ ” Id. at 828, 114 SCt at 2558, 129 LEd2d 642 (quoting Gompers v. Bucks

Stove & Range Co., 221 US 418, 442, 31 SCt 492, 498, 55 LEd 797 (1911) (quoting

In re Nevitt, 117 F 448, 451 (8thCir 1902))). However, “a fixed sentence of

imprisonment is punitive and criminal in nature if it is imposed retrospectively for

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a ‘completed act of disobedience.’ ” Id. at 828, 114 SCt at 2558, 129 LEd2d 642.

(quoting Gompers, 221 US at 443, 31 SCt at 498, 55 LEd 797) (emphasis added). In

such instances, the contemnor is unable to avoid or shorten the confinement

through later compliance, that is, the contemnor has no ability to purge the

contempt. Id. Because the punishment is retrospective, it cannot have a forward

looking coercive effect and is thus a criminal sanction for which constitutional

safeguards must be followed. See id.

[¶28.] In the instant case, the order was imposed in a civil contempt

proceeding. However, the court ordered that upon failing to pay child support in

any given month, Sazama was required to serve the first ten days of the following

month in the county jail. Sazama could not purge himself and be released even if

he paid the prior month’s support shortly before or while he was incarcerated for

the previous month’s violation. Therefore once imposed, the ten-day jail sentence

has no coercive effect and cannot motivate Sazama to pay the previous month’s

child support obligation. In addition, the ten-day jail sentence does not compensate

Muilenberg for the monthly child support obligation. Consequently, the sanction

imposed upon Sazama is criminal in nature rather than civil or coercive, and

invokes the procedural safeguards relevant to criminal sanctions, including the

right to trial.

[¶29.] Accordingly, we reverse the order of the circuit court and remand for

the imposition of a civil sanction that is coercive in nature and from which Sazama

may purge himself prior to its imposition. In the alternative, if the circuit court

seeks to impose the same or a similar non-coercive sanction, we order the court to

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do so in compliance with the procedural due process requirements of a criminal

trial.

[¶30.] Affirmed in part and reversed and remanded in part for further

proceedings consistent with this opinion.

[¶31.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices,

concur.

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