This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Steven Glen Burkstrand, petitioner,
Linda Rae Burkstrand,
Filed March 12, 2002
Robert H. Schumacher, Judge
Brian L. Sobol, Susan A. Daudelin, Katz & Manka, Ltd., 4150 U.S. Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for respondent)
Considered and decided by Schumacher, Presiding Judge, Hanson, Judge, and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Appellant Steven Glen Burkstrand (husband) was found in constructive civil contempt of a temporary order to pay spousal-maintenance. Husband challenges the contempt finding, contending that the district court abused its discretion by finding him in contempt because (1) his imputed income is less than his support obligation; (2) he lacked the ability to meet the purge conditions set by the court; and (3) he was improperly sentenced to 14 days in the county correctional facility. We affirm.
Husband filed for dissolution of marriage. On May 11, 2000, a district court referee issued a temporary order requiring husband to pay $1,740 per month to respondent Linda Rae Burkstrand (wife) as child support for the couple's two children. The referee also ordered husband to pay $1,785 per month to wife as spousal-maintenance. Husband paid the child support but failed to pay any spousal maintenance.
On November 14, 2000, the referee found husband in constructive civil contempt of the May 11, 2000 temporary order. Husband was sentenced to up to 120 days in the county adult correctional facility. The sentence, however, was stayed on condition that husband pay all support arrears and fulfill his obligation to pay child-support and spousal-maintenance in the future. Husband sought review of the contempt finding. On January 23, 2001, the district court affirmed the referee's November 14, 2000 order.
A hearing was then held on March 9, 2001, pursuant to Mahady v. Mahady, 448 N.W.2d 888, 890-91 (Minn. App. 1989). The referee found that husband failed to meet his burden of proving an inability to pay the amounts ordered, revoked the stay of husband's November 14, 2000 sentence, and ordered husband to report to the county correctional facility to serve a 14-day sentence. Husband again sought review. On May 8, 2001, the district court adopted the referee's March 9, 2001 findings and conclusions and denied husband's notice of review. This appeal followed.
When reviewing a district court’s contempt order, the factual findings are subject to reversal only if clearly erroneous, and the court’s order is subject to reversal only for an abuse of discretion. Mower County Human Servs. v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1996). This court considers whether the contempt order “was arbitrary and unreasonable or whether it finds support in the record.” Gustafson v. Gustafson, 414 N.W.2d 235, 237 (Minn. App. 1987).
Minnesota courts have statutory authority to enforce maintenance and child-support obligations using civil contempt proceedings. Engelby v. Engelby, 479 N.W.2d 424, 426 (Minn. App. 1992). A child-support or spousal-maintenance order constitutes prima facie evidence that the obligor has the ability to pay the award. Minn. Stat. § 518.24 (2000). Disobeying the award is prima facie evidence of contempt. Id. The obligor has the burden to prove inability to comply with the order. Engelby, 479 N.W.2d at 426.
Two hearings are generally required before a contemnor may be jailed. Mahady, 448 N.W.2d at 891. At the first hearing, the court makes the actual finding of contempt. At the second hearing, commonly referred to as a Mahady hearing, the contemnor has the opportunity to show compliance or a good faith effort to comply with the conditions stated when contempt was first adjudicated. Id. at 891-92. If the court finds that the contemnor failed to comply without excuse, it may order immediate confinement but still must set purge conditions that provide the contemnor the opportunity to obtain release by compliance. Hopp v. Hopp, 279 Minn. 170, 175, 156 N.W.2d 212, 217 (1968). For a purge condition to create an actual "opportunity" to gain release, there must be a determination that the contemnor has the ability to meet the purge condition. Id. at 175-76, 156 N.W.2d at 217-18.
Husband argues that the district court abused its discretion in finding him in contempt of court because the $3,072 that the referee imputed to him as income is less than his support and maintenance obligations of $3,525. While husband’s support and maintenance obligations are more than his imputed monthly net income of $3,072, the referee found that father had substantial amounts of money available to him in addition to that monthly income. The Minnesota Supreme Court has consistently held that it is proper to look at an obligor's earning capacity and to disregard any inability to pay that is voluntary on the part of the obligor. Hopp, 279 Minn. at 176-77, 156 N.W.2d at 217-18; Meisner v. Meisner, 220 Minn. 559, 560, 20 N.W.2d 486, 487 (1945). If the obligor fails to make a good faith effort to conform to the contempt order, his burden of proof is not sustained. Hopp, 279 Minn. at 175, 156 N.W.2d at 217 (Minn. 1996). There is no requirement that the district court “determine how an obligor access the money necessary to meet the purge conditions, only that it determine the obligor is able to meet them.” Crockarell v. Crockarell, 631 N.W.2d 829, 837 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001). The record supports the referee's findings.
Husband also argues that he did not have the ability to meet the purge conditions set by the court. At the second stage of contempt proceedings, the contemnor has the opportunity to show compliance or a good faith effort to comply with conditions stated when contempt was first adjudicated. Mahady, 448 N.W.2d at 891. If the court finds that the contemnor failed to comply without excuse, it may order immediate confinement but still must set a purge condition that provides the contemnor the opportunity to obtain release by compliance. Swancutt, 551 N.W.2d at 224.
In order for a purge condition to create an actual "opportunity" to gain release, there must be a determination that the contemnor has the ability to meet the purge conditions.
Schubel v. Schubel, 584 N.W.2d 434, 436 (Minn. App. 1998) (citing Hopp, 279 Minn. at 175, 156 N.W.2d at 217). A contemnor is entitled to a finding in that respect. See Rosenfeld v. Rosenfeld, 311 Minn. 76, 82, 249 N.W.2d 168, 171 (1976) (appellate court mandate for findings enhances respect for standards, informs the parties of the court's rationale, and gives the parties a meaningful right to appeal). The district court's finding regarding ability to meet the purge conditions “must relate to appellant's financial circumstances at the time of confinement, not the circumstances at the time of the initial contempt hearing.” Schubel, 584 N.W.2d at 436. The burden of proof is on husband as obligor to show an inability to meet the purge conditions. Engelby, 479 N.W.2d at 426.
In its November 14, 2000 order, the district court referee found husband in contempt and sentenced him up to 120 days in the county correctional facility. The sentence was stayed subject to husband meeting the following conditions.
(a) He pay his ongoing child support obligation in the current amount of $1,740 per month effective December 1, 2000;
(b) He pay his ongoing spousal maintenance obligation in the current amount of $1,785 per month effective December 1, 2000;
(c) He pay all support arrears under the temporary order before December 1, 2000;
A hearing was later held pursuant to Mahady, where the district court referee found that:
[Husband] has paid $2,750 since the contempt order issued. His purge conditions required a total of $10,575, leaving purge arrears of $7,825.
* * * *
Although [husband] sets forth a number of excuses for his failure to pay the court-ordered purge conditions, he has failed to meet his burden of proving an inability to pay the amounts ordered.
Despite his affidavit of claimed income, there is a history of [husband] deceiving the court with regard to his financial resources and a history of his underemployment. Therefore, the court continues to find he has the ability to pay the court-ordered amounts.
[Husband] could have paid more towards these obligations than he has, and he had the ability to pay them.
Based on these findings, the referee revoked the stay of sentence and sentenced husband to 14 days in the workhouse. The referee, however, also ordered that husband could be released if he paid a lump sum of $5,000 or presented a supersedeas bond of the same amount. Husband claims that the he lacked the ability to meet the purge conditions because (1) the district court referee erroneously found that his gross monthly income was approximately $3,000 per month, and (2) husband did not presently have the funds to make the payments necessary to fulfill the purge conditions.
Regarding the amount of husband’s income, the referee found that (1) husband previously owned a business which provided him with a net income of $3,073 per month; (2) he previously announced an intent to sell this business; (3) husband now apparently has lost his business accounts to the potential buyer, but has not received any money for his business; (4) husband is now working for his brother as a driver at the rate of $12 to $13 per hour; (5) husband has at times worked for his brother for no pay; and (6) husband's voluntary relinquishment of a viable business is clear evidence of bad faith underemployment. The record supports these findings.
A person found in contempt of court
may not purge himself by showing that he has voluntarily placed himself in a position where he is unable to conform to the court's order, when, * * * he has allowed the means of complying with that order to pass through his hands and out of his control.
Ryerson v. Ryerson, 194 Minn. 350, 351-52, 260 N.W. 530, 530-31 (1935). Minnesota law creates a presumption that the obligor has an income sufficient to pay the amount in the support order and the order constitutes prima facie evidence that the obligor has the ability to pay the award. Minn. Stat. § 518.24. The obligor in a contempt proceeding has the burden to demonstrate an inability to pay the support award. Hopp, 279 Minn. at 174-75, 156 N.W.2d at 216-17. In considering ability to pay, the court may consider a person's earning capacity, financial status, and earnings history. Id. at 177, 156 N.W.2d at 218. The referee did not err by imputing approximately $3,000 per month in income to husband.
Regarding husband’s present ability to make the payments necessary to fulfill the purge conditions, the referee found that husband has access to funds in addition to his income. The referee also found that husband was voluntarily underemployed. Additionally, the referee noted that husband had made prior attempts to deceive the court. Based on these findings, the referee found present ability. The record supports these findings. There is no evidence in the record to refute the referee’s finding regarding husband’s manipulation of assets. Also, husband only submitted an affidavit at the Mahady hearing and did not testify. Cf. Crockarell, 631 N.W.2d at 834 (district court properly drew adverse inference from contemnor's failure to testify regarding failure to pay child support). Husband has not met his burden of proof.
Husband further argues that the district court erred by finding him in contempt of court because the district court referee improperly sentenced him to 14 days in the Hennepin County workhouse. Civil contempt proceedings are designed to induce future performance of a valid court order, not to punish for past failure to perform. Minn. State Bar Ass'n v. Divorce Assistance Ass'n, Inc., 311 Minn. 276, 285, 248 N.W.2d 733, 741 (1976). Thus, civil contempt is said to give the contemnor the keys to the jail cell because compliance with the order allows him to purge himself and end the sanction. Id. A civil contempt order cannot impose a fixed sentence, but must allow the contemnor to obtain release by compliance. Id.
Husband specifically argues that the referee improperly imposed a 14-day sentence because (1) the referee made no finding that incarceration will aid compliance and (2) he lacked the ability to make a lump sum payment of $5,000 or post a supersedeas bond of the same amount. Regarding the claim that no finding that incarceration would aid compliance was made, husband is incorrect. In the November 14, 2000 order, the referee made the following findings:
The husband is in willful constructive civil contempt of court for his refusal to comply in whole or in part with his obligation to pay spousal maintenance, pursuant to this court’s order for temporary relief filed May 18, 2000.
Conditional confinement will produce the husband’s compliance with his court’s order.
A finding that incarceration will produce compliance, however, was not made in the March 9, 2001 order following the Mahady hearing. But the lack of a finding in the March 9, 2001 order is inconsequential. Such a finding need only be made in the initial order adjudicating contempt. Schubel, 584 N.W.2d at 436. If the person found in contempt
is able to perform a purge condition, a matter of fact that must be determined, the choice to incarcerate is patently premised on the reasonable likelihood of producing compliance.
Regarding husband's claim that he lacked the ability to pay a lump sum of $5,000 or a supersedeas bond in that amount, this argument fails for the same reasons as discussed regarding husband's ability to meet the purge conditions. Additionally, regarding this specific purge condition, the referee made the following finding in its March 9, 2001 order:
An oral motion for a stay was denied. Counsel for [husband] requested a supersedeas bond. Counsel for the parties agreed on an amount of $5,000, and the court approved that agreement.
Thus the record shows that the purge condition provided by the court was actually requested by husband and husband agreed to the amount. Additionally, the record shows that husband did pay the supersedeas bond on the very day the order was issued. The court did not abuse its discretion by finding husband in contempt.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 These parties have previously been before this court and the Minnesota Supreme Court on different issues relating to their marriage dissolution. See Burkstrand v. Burkstrand, No. C0-00-813 (Minn. App. Dec. 13, 2000) (holding that district court did not have authority to issue order for protection because full hearing was not held within statutory period); Burkstrand v. Burkstrand, 632 N.W.2d 206 (Minn. 2001) (reversing court of appeals and holding that district court’s failure to comply with statutory time frames for conducting hearing does not deprive court of jurisdiction).