This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







In re the Marriage of:

Kevin T. Rains, petitioner,





Constina E. Rains,




Filed February 14, 2006


Halbrooks, Judge



Carver County District Court

File No. FA-04-68



Kevin T. Rains, 8546 Grove Circle, Shakopee, MN 55379 (pro se respondent)


Constina E. Rains, 617 Carver Bluffs Parkway, Carver, MN 55416 (pro se appellant)




            Considered and decided by Halbrooks, Presiding Judge; Klaphake, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the district court’s order finding her in constructive civil contempt.  Appellant argues that it was improper for the district court to find her in contempt without first issuing an order to show cause.  Additionally, appellant argues that the district court’s contempt order was criminal instead of civil because it did not provide her with the opportunity to purge the contempt and because it punished her for her past wrongdoing.  We affirm. 


Appellant Constina Rains and respondent Kevin Rains married in 1995 and separated December 2, 2003.  At the time of the parties’ separation, they had a joint checking account with a balance of $225,000.  On the day of the separation, appellant used a personal check to withdraw $180,000 from the checking account.  On December 22, 2003, appellant withdrew an additional $45,500 from the checking account.  Subsequently, appellant deposited $15,000 back into the checking account.

On May 10, 2004, the district court ordered appellant to “immediately” deposit the $210,500 that she had withdrawn from the checking account, or, if the funds were no longer available, to account for their whereabouts in writing.  It is undisputed that appellant did not comply with this order.

On July 22, 2004, the district court denied respondent’s motion to hold appellant in contempt for failure to obey the May 10 order on the grounds that it was premature in that there was no order to show cause and the dissolution proceedings were still underway.  But the district court stated in its memorandum its great concern “with [appellant’s] complete lack of understanding in her responsibility to at the very least come up with an accounting of certain monies in this matter.”  Appellant was again advised by the district court to immediately comply with the accounting. 

On October 7, 2004, the district court issued its posttrial judgment and decree.  In that order, the court found that appellant was in “constructive civil contempt” for failing to obey the May 10 order.  The court then sentenced appellant to 30 days in jail, stayed for one year, and permitted her 30 additional days to obey the order.  In addition, the district court gave appellant further instructions concerning what it required from her in order to avoid serving a jail sentence, including the date of the next court appearance. 

On November 17, 2004, appellant appeared personally to defend her compliance with the district court’s order.  Appellant provided two submissions, neither of which the district court found to be sufficient.  In the submissions, appellant indicated that her monthly expenses were $9,468.72, which included $1,350 in groceries per month for herself and her two children.  The district court found that amount to be excessive and reduced her monthly expenses to $8,868.72 by reducing the grocery allotment by $600 per month.  Based on monthly expenses of $8,868.72, the district court found that appellant could have reasonably dissipated $88,687.20 for the ten months following the parties’ separation.

Appellant also stated that she had spent $17,000 on charities, the children’s tuition, vacations, and car insurance.  Because appellant had included car insurance in her monthly expenses, the district court removed that component from the second submission, leaving a total of $15,500 accounted for.  The district court then found that appellant had only accounted for $104,187.20 of the $210,500 that she withdrew from the parties’ checking account. 

Consequently, the district court found appellant in contempt of court for failure to comply with its October 7, 2004 order and set appellant’s jail schedule to be served on weekends.  The district court stayed the order pending the outcome of this appeal. 


            In reviewing a district court’s decision whether to hold a party in contempt, the factual findings are subject to reversal only if they are clearly erroneous, while the district court’s decision to invoke its contempt powers is subject to reversal only for an abuse of discretion.  Mower County Human Servs. v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1996).

I.          Did the district court abuse its discretion by holding appellant in contempt of court without first issuing an order to show cause?


There are two types of civil contempt—direct and constructive.  Minn. Stat. § 588.01, subd. 1 (2004).  Direct contempt is an act that occurs in the presence of the court, such as disorderly conduct or breach of the peace tending to interrupt the business of the court.  Id., subd. 2 (2004).  Constructive contempt is an act that does not occur in the presence of the court and is something that the court has no first-hand knowledge of, such as disobedience of a lawful order.  Id., subd. 3 (2004).

There are procedural requirements a district court must follow before it may hold an individual in constructive civil contempt.  Minn. Stat. § 588.04 (2004).  That section states, in pertinent part, that

[i]n cases of constructive contempt, an affidavit of the facts constituting the contempt shall be presented to the court . . . who may either issue a warrant of arrest to bring the person charged to answer or, . . . upon notice, or upon an order to show cause . .  may commit the person to jail, impose a fine, or both . . . .


Id.  Further, “[w]hen the contempt consists in the omission to perform an act which is yet in the power of the person to perform, the person may be imprisoned until the person performs it . . . .”  Minn. Stat. § 588.12 (2004).

The supreme court has further outlined the minimum requirements that a civil-contempt proceeding must meet:

(1) the court has jurisdiction over the subject matter and the person;

(2) a clear definition of the acts to be performed;

(3) notice of the acts to be performed and a reasonable time within which to comply;

(4) an application by the party seeking enforcement giving specific grounds for complaint;

(5) a hearing, after due notice, to give the nonperforming party an opportunity to show compliance or the reasons for failure;

(6) a formal determination by the court of failure to comply and, if so, whether conditional confinement will aid compliance;

(7) an opportunity for the nonperforming party to show inability to comply despite a good faith effort; and

(8) the contemnor’s ability to gain release through compliance or a good faith effort to comply.


Mower County Human Servs., 551 N.W.2d at 223 (quoting Hopp v. Hopp, 279 Minn. 170, 174-75, 156 N.W.2d 212, 216-17 (1968)).

Appellant contends that her due-process rights have been violated because she was never served with an order to show cause and not given an opportunity to explain her conduct.  We find these arguments to be without merit.  As an initial matter, there is no question that the district court has jurisdiction over appellant in the context of this dissolution.  And this record demonstrates the district court’s patience with appellant’s noncompliance with the May 10 order, as it repeatedly outlined the steps it required for compliance and allowed her additional time. 

On October 7, 2004, the district court issued the dissolution judgment and decree.  It included an order for appellant to comply with the court’s May 10 order within 30 days by providing a written accounting of how she had spent the money that she withdrew from the joint checking account.  In addition, the court ordered that appellant appear on November 17, 2004, with the accounting.  Therefore, appellant had notice that the district court required her to appear to address her compliance with its order. 

On this record, the district court did not abuse its discretion by holding appellant in contempt without first issuing an order to show cause. 

II.        Did the district court err by holding appellant in criminal, instead of civil, contempt?


Appellant contends that the contempt order is punitive, not remedial, and therefore qualifies as an improper criminal-contempt order.  Appellant asserts that the district court erred by not allowing her to purge the contempt prior to incarceration, as required by caselaw, rendering the contempt order criminal in nature.  Finally, appellant argues that the district court’s contempt order is punitive in nature because it impermissibly continues to punish her for her misconduct that the dissolution and property settlement resolved.

A.        Civil or criminal

The Minnesota Supreme Court has stated that “our contempt case law explains that the purpose of the court’s contempt order can be either remedial or punitive.”  State v. Tatum, 556 N.W.2d 541, 544 (Minn. 1996).  Civil contempt orders are remedial and “are designed to induce future performance of a valid court order, not to punish past failure to perform.”  Mahady v. Mahady, 448 N.W.2d 888, 890 (Minn. App. 1989).  Criminal contempt orders are punitive.  Tatum, 556 N.W.2d at 544.  The supreme court went on to say that “we recommend that courts considering a contempt penalty determine at their earliest convenience whether the purpose of the contempt proceeding is remedial or punitive.”  Id. at 545. 

Here, the district court labeled the contempt order “constructive civil contempt.”  It is constructive because the contempt occurred outside of the presence of the court, namely, appellant’s failure to make a written accounting of the funds that she withdrew from the parties’ joint checking account.  The contempt is civil in purpose because the district court is attempting to get appellant’s compliance with the order.

Citing Shillitani v. United States, 384 U.S. 364, 86 S. Ct. 1531 (1966), appellant asserts that when the time for compliance has passed, the contempt order is criminal rather than civil.  Shillitani involved two witnesses who refused to testify at grand-jury proceedings, despite the prosecution’s grant of immunity.  384 U.S. 367, 86 S. Ct. 1533.  The courts held the defendants in contempt until they agreed to testify, and, in doing so, the courts imposed a jail sentence on the defendants that was longer than the life of the grand jury.  Id. at 366, 367-68, 86 S. Ct. at 1533-34.  The Supreme Court held that the sentence was improper because the defendants could not comply with the court order to testify at the grand jury after the grand jury was discharged, and, thus, would be unable to purge the condition and would be required to serve the remaining sentence.  Id. at 371, 86 S. Ct. at 1536.

But here, there is no definite timeline, like a grand-jury term, that appellant must meet before it becomes impossible for her to comply.  Thus, Shillitani is inapposite.  The district court did not err in finding appellant in civil contempt of court for failing to obey its orders and to gain compliance.   

B.        Purging

There are two stages to a contempt proceeding.  “First, the contempt finding depends on a determination that the obligor had the ability to [comply with] the obligations[.] . . .  Second, the court must set purge conditions and determine whether the contemnor has the ability to meet those conditions.”  Mahady, 448 N.W.2d at 890.  Moreover, “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.

Appellant asserts that because the district court ordered her to serve her first weekend in jail, she was unable to purge the contempt and avoid serving a single day in jail, thus depriving her of a second-stage Mahady hearing.  We disagree.

The hearing on November 17, 2004, was a second-stage Mahady hearing.  The district court allowed appellant to present her accounting and defend it.  Appellant had the opportunity to explain why she had not, or could not, comply with the district court’s order, and she failed to convince the court that she was unable to comply.  Therefore, the district court did not deprive appellant of a second-stage Mahady hearing.

Appellant has the ability to comply with the district court’s order and gain release at any time by submitting a written accounting of how she spent the funds.  In addition, while the district court ordered her to begin serving her 30 days in jail, she only serves the sentence on weekends.  After the first weekend, she could choose to comply and avoid any additional jail time, thereby purging the contempt.

Further, the district court need not give appellant unlimited opportunities to purge the contempt.  The district court first ordered appellant to comply in May 2004.  She had not complied by July, and although the district court refrained from holding her in contempt until the dissolution proceeding was final, it once again ordered compliance.  In October 2004, the district court gave appellant an additional 30 days to account for the funds, despite the fact that she already had five months to comply.  In November 2004, appellant partially complied.  But the district court determined that she remained in contempt.  Appellant has had numerous opportunities, and plenty of time, to purge the contempt by complying with the district court’s order, but has failed to do so. 

C.        Improperly considering appellant’s misconduct

            Appellant also contends that the contempt order is punitive because it punishes her for her misconduct—improperly withdrawing the funds from the parties’ checking account—which, she claims, was resolved by the dissolution and property settlement.  She further asserts that by holding her in contempt, the district court is providing respondent with “a financial windfall.”

            The only law that appellant cites in support of this proposition is a statute and an unpublished case from this court stating that during dissolution proceedings district courts shall divide property “without regard to marital misconduct.”  But that is not currently at issue.  The district court’s contempt order has nothing to do with the parties’ property settlement, but rather with appellant’s defiant and persistent refusal to comply with its orders. 

            The district court ordered appellant to deposit the remaining, withdrawn funds, presumably so that the district court could properly divide the funds.  The district court stated that if the funds were no longer available, appellant needed to provide a written accounting for how she spent them.  That does not, in any way, provide respondent with a financial windfall. 

Appellant’s claim is without support and does not show that the district court’s contempt order is punitive, and thus, criminal in nature. 


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