This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Judith Ann Tait, petitioner,
Gerald Allen Tait,
Filed July 18, 2000
Kanabec County District Court
File No. F793503
John E. Mack, 26 Main Street, Post Office Box 302, New London, MN 56273 (for appellant)
Appellant Gerald Tait seeks review of an order finding him in constructive civil contempt of court for not paying maintenance to respondent Judith Tait and requiring him to serve 90 days in jail. Because the district court gave appellant the opportunity to avoid incarceration by complying with certain conditions, and because civil contempt is available to enforce appellant’s maintenance obligations, we affirm the district court’s use of civil contempt. We remand, however, for the district court to formally address appellant’s ability to meet his obligations.
The 1994 judgment dissolving the parties’ marriage required appellant to pay weekly maintenance to respondent. When appellant later suffered a work-related injury, maintenance was withheld from his periodic workers’ compensation benefits. When appellant stopped receiving periodic benefits in October 1995, respondent stopped receiving maintenance. In 1997 and 1998, appellant received $75,000 in lump-sum workers’ compensation settlements; respondent received none of those funds. In October 1998, respondent sought to have appellant held in contempt for not paying maintenance. A January 1999 order granted respondent’s motion, awarded her a judgment for arrears, sentenced appellant to 90 days’ incarceration, stayed the sentence, and listed conditions that, if satisfied, would allow appellant to avoid incarceration. Respondent later moved to have appellant incarcerated. The district court lifted the stay on the incarceration and again listed conditions that would allow appellant to avoid incarceration. During the pendency of this appeal, appellant served his incarceration.
1. Appellant challenges the ruling that he was in constructive civil contempt of court. He alleges that the nature of the contempt proceedings was in fact criminal and notes that criminal contemnors are entitled to a trial and no trial occurred here. The protections to which a contemnor is entitled depend on whether the contempt is civil or criminal in nature. Mower County Human Servs. v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1996). Generally, a contempt order identifying conditions that, if satisfied, allow a contemnor to avoid a contempt sentence is an order for civil contempt; criminal contempt “traditional[ly]” involves a fixed sentence without a purge condition. Swancutt, 551 N.W.2d at 222 (citing Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 634, 641, 108 S. Ct. 1423, 1430, 1434 (1988)). Here, the January 1999 order included a fixed 90-day sentence and conditions by which appellant could avoid incarceration. Similarly, the later order lifted the stay of the fixed 90-day sentence and included conditions by which appellant could avoid incarceration.
In Swancutt, a fixed sentence with purge conditions was imposed for a failure to pay child support; the obligor, in challenging the contempt, alleged that it was criminal. 551 N.W.2d at 222. The supreme court concluded that the contempt was civil because (a) while the proceeding was initiated by the county, it was initiated on behalf of the support recipient in a civil context rather than on behalf of the county in a criminal prosecution; (b) the contempt sentence included purge conditions; and (c) historically, similar support-related contempt proceedings were civil in nature. Id. Swancutt’s analysis is consistent with the Supreme Court’s observation that civil contempt may include a determinate sentence with a purge clause. Feiock, 485 U.S. at 634, 108 S. Ct. at 1431. Here, (a) because appellant was not prosecuted, this case is not criminal in nature; (b) the order lifting the stay on the 90-day sentence included purge conditions; and (c) similar maintenance-related contempt proceedings have been classified as civil in nature. E.g., Gustafson v. Gustafson, 414 N.W.2d 235, 237 (Minn. App. 1987). Therefore, we conclude that appellant’s contempt is civil and that a trial was unnecessary.
We reject the argument by appellant that the district court intended to punish him and, therefore, that his contempt sentence was criminal in nature. As explained by commentators (a) the intent-based approach to determining the nature of contempt is known as the “definitional approach”; (b) the “definitional approach” began with the Supreme Court; but (c) because of “great difficulty” in using the “definitional approach” to distinguish civil from criminal contempt, the federal courts “abandoned [it] and shifted their attention to the nature of the sanction imposed upon the contemnor”; and (d) this shift produced the nature-of-the-sentence test. Hon. D.D. Wozniak, Cynthia L. Lehr, Dealing With a Double-Edged Sword: A Practical Guide to Contempt Law in Minnesota, 18 William Mitchell Law Rev. 7, 9-11 (1992) (footnotes omitted). Here, as noted, the existence of purge conditions and the lack of a criminal proceeding are indicia of civil contempt.
Appellant challenges the district court’s refusal to accept his uncontradicted testimony in which he alleged that he lacked the ability to pay his maintenance obligation. The district court, however, need not accept uncontradicted testimony if the record otherwise suggests that it is not credible. Varner v. Varner, 400 N.W.2d 117, 121 (Minn. App. 1987) Here, the record before us contains a concession that appellant may have been concealing or dissipating assets.
2. Appellant alleges that incarceration for contempt is unavailable to compel his payment of maintenance arrears because respondent has a judgment for those arrears. To support his argument, appellant cites Zieman v. Zieman, 265 Minn. 190, 121 N.W.2d 77 (1963), and Lieder v. Straub, 230 Minn. 460, 42 N.W.2d 11 (1950). Lieder and Zieman were based on the supreme court’s interpretation of the then-existing dissolution statute. See Lieder, 230 Minn. at 463, 42 N.W.2d at 13 (stating that (a) purpose of Minn. Stat. § 518.17 (1945) and its enforcement by contempt was to insure support for children during minority; (b) this purpose expired at children’s majority; and therefore (c) the legislature did not authorize enforcement of support “by extraordinary remedies after the children reached majority”); see also Zieman, 265 Minn. at 192, 121 N.W.2d at 79 (partially basing its ruling on Lieder).
Current law allows contempt proceedings against maintenance obligors who are at least three months in arrears and does not limit the use of contempt to the enforcement of current and future obligations. Minn. Stat. § 518.617 (1998 & Supp. 1999). Also, the basis for Lieder and Zieman was that, because the custodial parent was no longer incurring legally cognizable expenses on the children’s behalf, the custodial parent no longer had an immediate need for the money. Lieder, 230 Minn. at 463, 42 N.W.2d at 13; see Zieman, 265 Minn. at 192, 121 N.W.2d at 79 (partially basing ruling on Lieder). Here, it is undisputed that respondent is still entitled to maintenance. Receipt of maintenance depends on need. Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989). Therefore, even if the Lieder/Zieman rationale applies to cases involving maintenance arrears, it would be limited to cases where there is no current maintenance obligation and would not apply here.
3. Appellant alleges that his contempt citation is defective because there was no proof that he has the present ability to pay his obligations. He argues that (a) the statutory and constitutional homestead-exemption provisions preclude the court from compelling him to use his homestead to pay his maintenance arrears; (b) he testified that his only asset is his homestead; and, therefore, (c) the order requiring him to pay his obligations without addressing whether he had to use his homestead to do so was the district court’s improper attempt to do indirectly what it could not do directly. We shall address the purge conditions despite the parties’ disagreements about whether this issue is properly before us. See Minn. R. Civ. App. P. 103.04 (stating appellate court may address issues as justice requires).
The district court asked counsel to brief the question of whether appellant could be ordered to sell his home as part of the contempt proceedings, but did not explicitly address that question in the order lifting the stay of appellant’s contempt sentence. Instead, that order stated that appellant “has received” settlements exceeding his maintenance arrears and that he “has had” a monthly income sufficient to allow him to pay “all current spousal maintenance obligations.” (Emphasis added.) Findings that a party previously had the ability to perform an act are not findings that the party is currently able to do so and are inadequate to support incarceration or the identification of purge conditions. See Hopp v. Hopp, 279 Minn. 170, 175, 156 N.W.2d 212, 217 (1968) (stating that when confinement is directed, it should not be “to compel a party to do something which he is wholly unable to do”); Schubel v. Schubel, 584 N.W.2d 434, 436 (Minn. App. 1998) (stating that before a contemnor can be incarcerated, he is entitled to a determination that he currently has the ability to meet the purge conditions); Mahady v. Mahady, 448 N.W.2d 888, 890 (Minn. App. 1989) (stating, in context of conditional contempt order, that “it was error” to set purging conditions on findings stating obligor “‘has had’ the earning capacity to meet his child support obligation ‘as it has come due’”) (citing cases).
Caselaw requires that the district court, when deciding whether to direct a party to report for incarceration, “formally” determine, among other things, whether conditional confinement is likely to produce full or partial compliance. Hopp, 279 Minn. at 175, 156 N.W.2d at 217 (emphasis in original). Here, the district court found that appellant previously had the ability to pay his obligations but did not find appellant presently able to meet the purge conditions. Nor did it “formally” determine that appellant’s incarceration was likely to produce compliance. Therefore, we remand for the district court to address these aspects of the case and to make any alterations in the purge conditions necessary to ensure that they are reasonable.
Affirmed in part and remanded in part.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
** Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 That appellant served his contempt sentence suggests that all or some of his appeal is moot. See In re Inspection of Minnesota Auto Specialties, Inc., 346 N.W.2d 657, 658 (Minn. 1984) (if, during an appeal, an event occurs that makes a decision on the merits unnecessary or an award of effective relief impossible, the appeal “will be dismissed as moot”). But this general rule does not preclude review if an issue is one that is capable of repetition yet evading review. In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989). Here, the January 1999 order stated that appellant could avoid incarceration if, during the 90-day period, he did various things, including becoming current on maintenance “to the present and continuing.” (Emphasis added.) Because the requirement that appellant remain current on his maintenance obligation could be involved in future contempt proceedings, we conclude that this case fits the exception to the general rule governing mootness. Cf. Walz v. Walz, 409 N.W.2d 39, 39 (Minn. App. 1987) (declining to dismiss as moot appeal challenging contempt procedures because issue was capable of repetition yet evading review).
 In a 1996 footnote, the Minnesota Supreme Court (a) suggested that courts should refer to contempt proceedings as “remedial” and “punitive” rather than “civil” and “criminal” because “[t]he latter are defined by the former”; (b) cited Feiock for the proposition that the federal test for distinguishing civil and criminal contempt was based on the “character of the relief and the substance of the proceedings”; and (c) concluded that “the federal standard for [the civil/criminal] distinction is consistent with our own.” State v. Tatum, 556 N.W.2d 541, 544 n.2 (Minn. 1996).
 Appellant’s attorney candidly admits that Lieder and Zieman have yet to be applied to a maintenance context.
 Appellant’s allegation that his incarceration “is reminiscent of debtor’s prison” is incorrect. See Wojahn v. Halter, 229 Minn. 374, 381, 39 N.W.2d 545, 549 (1949) (stating “an obligation to pay * * * alimony * * * is not a debt within the meaning of the constitutional prohibition against imprisonment for debt”) (citations omitted).