This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







In re Phyllis D. Wahl,






Oswald K. Wahl,




Filed August 3, 2004

Reversed and remanded

Forsberg, Judge*


Roseau County District Court

File No. F9-98-288



Steven A. Anderson, 115 Roberts Avenue Northeast, P.O. Box 430, Warroad, MN  56763 (for respondent)


Kevin T. Duffy, 1008 West Second Street, Suite 201, P.O. Box 715, Thief River Falls, MN  56701 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge, Wright, Judge, and Forsberg, Judge.


U N P U B L I S H E D   O P I N I O N


            On appeal from a contempt order, appellant argues that (1) he cannot pay his obligations; (2) the requirements of Mahady v. Mahady, 448 N.W.2d 888 (Minn. App. 1989) were not satisfied; (3) incarcerating him would violate the prohibition on double jeopardy; and (4) the district court was biased against him.  We reverse and remand.


            The stipulated 1999 judgment dissolving the parties’ marriage required appellant Oswald Wahl to pay respondent Phyllis Wahl maintenance.  It also required the parties to transfer certain farm machinery to their adult sons.  Respondent later moved to have appellant held in contempt for not satisfying his obligations under these judgment provisions.  She also sought attorney fees.  In November 2002, the district court found appellant in contempt and threatened him with 90 days incarceration, which would be stayed for six months if appellant (1) gave respondent the machinery[1] or paid her for its value; (2) remained current on his maintenance obligation; and (3) paid respondent $500 in attorney fees.  When appellant failed to comply, he was incarcerated.[2]

In September 2003, respondent sought to have appellant held in contempt for his failure to comply with the November 2002 order.  She also sought an additional $500 in attorney fees.  Appellant argued that an additional incarceration would violate the prohibition on double jeopardy, and that he did not have the machinery and could not afford to pay for it or the attorney fees.  He also submitted to the court what he claimed were his reasonable expenses and his earnings for January to August 2003.  At a hearing, appellant stated that he was unable to pay maintenance because he was in jail for the prior contempt, but that he was current in his maintenance obligation as of October 2003. 

            By order of October 29, 2003, the district court found appellant in constructive civil contempt for his failure to comply with the November 2002 order and stated he could purge the contempt if he (1) gave the machinery to respondent or paid her for its value; (2) became current on his maintenance obligation; and (3) paid respondent $1,000 for attorney fees relating to the two contempt orders.  The district court also stated that if appellant did not pay respondent, a judgment for $14,000 plus “all past due maintenance payments, interest, and attorney’s fees necessary to execute on that judgment” was to be entered against appellant 90 days after the filing of the order.  The order directed appellant to serve 90 days in jail if, by November 3, 2003, he failed to comply with the listed conditions.  At the requests of appellant and respondent, respectively, the district court stayed appellant’s incarceration pending this appeal and vacated the portion of the order directing entry of judgment against appellant.  This appeal follows. 


I.  Civil or Criminal Contempt

“Whether contempt is civil or criminal is determined by the court’s purpose in responding to alleged misconduct, rather than the nature of the misconduct itself.”  In re Welfare of A.W., 399 N.W.2d 223, 225 (Minn. App. 1987).  The purpose of civil contempt is not to punish a party for failing to perform obligations under a judgment, but to vindicate a party’s rights by using a sanction of indefinite duration to compel performance of a duty or obligation by a nonperforming party.  State v. Garcia, 481 N.W.2d 133, 136 (Minn. App. 1992); Mahady v. Mahady, 448 N.W.2d 888, 890 (Minn. App. 1989); see Minn. State Bar Ass’n v. Divorce Assistance Ass’n Inc., 311 Minn. 279, 285, 248 N.W.2d 733, 741 (1976); see also Minn. Stat. § 588.01, subd. 3(3) (2002) (stating that constructive contempt involves the “disobedience of any lawful judgment, order or process of the court” and is committed outside the presence of the court).  Because a civil contempt order gives the contemnor the power to shorten the indefinite length of the sanction by performing as directed by the court, “the contemnor [is said to hold] the keys to the jail cell.”  Mahady, 448 N.W.2d at 890 (citing Minn. Stat. § 588.12 (1988)).  Criminal contempt orders, however, use an unconditional sentence or fine to preserve the authority of the court by punishing past misconduct, where that misconduct was directed at the court.  See Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 647, 108 S. Ct. 1423, 1437 (1988); Minn. State Bar Ass’n, 311 Minn. at 285, 248 N.W.2d at 741; A.W., 399 N.W.2d at 225.  Here, the district court said it found appellant in civil contempt of court, but then appeared to impose a fixed sentence of incarceration, despite the fact that appellant’s offending conduct was not directed at the court.  The result is confusion about whether these are civil or criminal contempt proceedings. 

            In Mower County Human Servs. v. Swancutt, 551 N.W.2d 219 (Minn. 1996), similar confusion arose for similar reasons.  There, the supreme court concluded that the contempt was civil because (1) the lawsuit was initiated on behalf of a child-support recipient in the civil context rather than on behalf of the county in a criminal prosecution; (2) the nominally-fixed contempt sentence included purge conditions; and (3) historically, similar support-related contempt proceedings were civil in nature.  Id. at 222.  Here, in the proceedings generating this appeal, (1) appellant was not prosecuted for his failure to satisfy his obligations; (2) the obligations at issue have their genesis in the parties’ dissolution proceeding, which is a civil matter; (3) appellant’s failure to satisfy his obligations occurred outside the presence of, and was not directed at, the court; (4) the October 2003 order directing appellant to serve a nominally fixed 90-day sentence includes purge conditions; and (5) the file reflects prior contempt proceedings involving a nominally-fixed period of incarceration, from which appellant was released before the end of the nominally-fixed period when he had complied with the conditions in the court’s order.[3]  Additionally, similar maintenance-related contempt proceedings have been considered civil.  See, e.g., Hicks, 485 U.S. at 634, 108 S. Ct. at 1431; Gustafson v. Gustafson, 414 N.W.2d 235, 237 (Minn. App. 1987).  Under these circumstances, and despite the fact that appellant was allegedly granted a “good-time” reduction of the incarceration imposed under the November 2002 order, we conclude that both the November 2002 and the October 2003 orders involve civil contempt. 

II.  Civil Contempt Proceedings

The existence of a maintenance obligation is prima facie evidence of the obligor’s ability to pay the obligation, and the failure to pay that obligation is prima facie evidence of contempt.  Minn. Stat. § 518.24 (2002).  To hold a party in contempt, however, the district court must make certain findings of fact, including findings that the contemnor has the ability to satisfy his obligations and that incarceration will likely coerce his compliance with his obligations.  Hopp v. Hopp, 279 Minn. 170, 174-75, 156 N.W.2d 212, 216-17 (1968).  Here, both the November 2002 and the October 2003 orders lack these, among other, Hopp findings.  This lack of findings is fatal to the October 2003 order.  See id. at 173, 156 N.W.2d at 215-16 (remanding contempt issue where district court failed to make findings addressing, among other things, contemnor’s ability to meet obligations); Mahady, 448 N.W.2d at 890 (remanding contempt issue where Hopp findings were inadequate).  We, therefore, remand to the district court to make the findings required by Hopp

Appellant also argues that the district court erred by not complying with the procedural requirements of the two-hearing contempt process described in MahadyId., 448 N.W.2d at 890.  We initially note that the exact process described in Mahady is not universally required.  See Swancutt, 551 N.W.2d at 223-24.  The lack of findings mentioned above, however, precludes us from addressing this question.  Therefore, on remand, the district court shall conduct the appropriate proceedings consistent with civil contempt law.  See Hopp, 279 Minn. at 174-75, 156 N.W.2d at 216-17; Mahady, 448 N.W.2d at 891; see also Swancutt, 551 N.W.2d at 223-24.

III.  Double Jeopardy

Appellant argues that his jail sentences are punishment for double-jeopardy purposes and therefore violate the prohibition on double jeopardy.  To the extent his argument regarding the October 2003 order is based on the peculiar form of that order, it is addressed by our remand for proceedings and findings consistent with the relevant civil contempt law.  To the extent the argument is based on the factors set out in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554 (1963) and its progeny used to determine whether a civil punishment can be deemed a criminal penalty, we reject that argument.  While the sanctions in the orders involve an affirmative disability or restraint and could be seen to promote the traditional aims of punishment of retribution and deterrence, the conduct to which the sanctions apply here is not a crime, and civil contempt sanctions have not been traditionally regarded as punishment, do not require a finding of scienter, are rationally connected to the noncriminal purpose of coercing appellant to comply with his obligations, and, because of the existence of the purge conditions, are not excessive in relation to the purpose of coercing that compliance.  See Kennedy, 372 U.S. at 168-69, 83 S. Ct. at 567-68 (listing factors); State v. McKinney, 575 N.W.2d 841, 844 (Minn. App. 1998) (applying Kennedy factors).

IV.  Judicial Bias

Finally, appellant argues that the district court was biased against him.  Generally, appellate courts address only issues presented to, and considered by, the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Because appellant did not raise this issue in district court, it is not properly before us and we decline to address it.  Were we to address it under Minn. R. Civ. App. P. 103.04 and Putz v. Putz, 645 N.W.2d 343, 350 (Minn. 2002), however, we would reject appellant’s argument:  Mere prior adverse rulings are insufficient to show bias.  Olson v. Olson, 392 N.W.2d 338, 341 (Minn. App. 1986).  Although appellant has successfully argued that the district court made mistakes compelling a remand, he has not established that the district court’s rulings were something other than mere mistakes or were motivated by an animus towards him. 

We reverse the October 2003 contempt order and remand to the district court for proceedings consistent with this opinion.  Whether to reopen the record on remand is discretionary with the district court. 

            Reversed and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] While the judgment directs conveyance of the machinery to the parties’ sons, the order requires appellant to give it to respondent.  The parties do not address this discrepancy. 

[2] With a credit for “good time,” appellant served a total of 62 days.

[3] The November 2002 order states that it sentenced appellant to 90 days incarceration but stayed that sentence for six months on the conditions listed therein.  To the extent appellant argues that the incarceration was unconditional and hence criminal, we reject that argument.  It was only if the obligations in the order were “not satisfied within the time allowed” that “a commitment for the 90-day jail sentence [would] issue.”  Similarly, given appellant’s release from a prior incarceration when he satisfied the court’s order and despite the fact that the nominally-fixed period for that incarceration had not expired, we conclude that the November 2002 order would not have been treated by the district court as, and hence cannot be deemed by this court to be, a criminal contempt order.