This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







In re the Marriage of:

Craig James Beuning, petitioner,





Alessandra Lizabeth Beuning,



Filed January 23, 2007


Huspeni, Judge*



Anoka County District Court

File No. F7-05-2802



Frederic W. Knaak, Greg T. Kryzer, Knaak & Kantrud, P.A., 3500 Willow Lake Boulevard, Suite 800, Vadnais Heights, MN  55110 (for appellant)


Beverly K. Dodge, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Coon Rapids, MN  55433 (for respondent)


            Considered and decided by Klaphake, Presiding Judge; Ross, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


          On appeal in this child-support dispute, appellant argues that (1) despite the fact that he has been released from the workhouse, his appeal is not moot; (2) the district court’s findings were inadequate to justify his incarceration; (3) the district court improperly denied him an opportunity to present evidence at the contempt hearing; (4) the district court’s ruling was internally inconsistent regarding his work release from incarceration; (5) the district court improperly used its civil contempt power to punish him for prior purported misconduct; and (6) this court’s prior refusal to address this matter via a writ of habeas corpus was erroneous.  We conclude that this appeal is not moot, address the issues raised on their merits, and reverse. 


            During the pendency of the parties’ marital dissolution proceeding, the district court ordered appellant Craig James Beuning to pay $2,999 per month in child support, $1,400 per month in spousal maintenance from June 1 to September 1, 2005, and directed that the parties’ homestead and other real property be immediately placed on the market for sale.  The parties were also ordered to submit hair samples for chemical testing based on joint accusations of drug abuse. 

            In October 2005, respondent Alessandra Lizabeth Beuning moved the district court to, among other things, hold appellant in contempt for failing to pay child support and spousal maintenance as required under the temporary order.  Through September 2005, appellant was $3,840.20 in arrears, with another $2,999 due for October.  Appellant admitted that he paid for birthday gifts, sporting fees, clothing, a hotel stay with the children, and noted that he had also paid an electrical bill at the former marital homestead.  On November 15, 2005, the district court found appellant in contempt for failing to pay child support and spousal maintenance as required by the temporary order.  The order states that

incarceration, at this time, will not likely result in [appellant] paying the support arrears any more quickly than he will be able if allowed to remain free from incarceration and working to produce income.  However, the Court reserves incarceration as an option to gain compliance if [appellant] does not comply with the Orders set forth below.


The district court admonished appellant for using available funds for other expenditures when he owed respondent past due support, and further found that after testing positive for cocaine and methamphetamine, appellant “has been less than cooperative in providing information and authorization to [respondent] and her attorney to demonstrate the steps he claims to have taken to deal with this drug problem.” 

            Appellant was ordered to provide all drug test results to respondent’s attorney and to sign an authorization allowing respondent’s attorney access to all chemical dependency evaluations, treatment records, and drug tests.  The district court ordered appellant to pay respondent $5,340 in support arrears and one-half of the October support by October 31, 2005; $1,499 for the second-half of the October support by November 15, 2005; and $2,999 for the November support by November 30, 2005.  Finally, the district court gave respondent sole authority to retain a realtor to list and sell the parties’ homestead, and ordered appellant to pay $750 in attorney fees to respondent’s attorney by November 25, 2005.  No return date was set to ascertain whether appellant had complied with the purge conditions of the November 15 order. 

            In December 2005, however, respondent moved the district court to incarcerate appellant for failing to comply with the November 15 order.  Respondent alleged that appellant had refused to release his treatment records and had signed an authorization that limited her attorney’s access to his records.  Further, appellant had only made one $3,000 support payment to respondent, which occurred in December 2005; the outstanding support arrears had risen to $9,837.  Appellant had also failed to pay the $750 in attorney fees and was not cooperating with respondent’s realtor regarding the sale of the homestead. 

            In its February 9, 2006 order, the district court stated:

                        [Appellant’s] willful failure to pay support as found in this Court’s order of November 15, 2005, constitutes ongoing constructive civil contempt.


                        . . . . 


                        Conditional confinement is likely to produce compliance with the Court’s order, at least in part.


                        . . . . 


                        [Appellant] shall be incarcerated for ninety days . . . .  [Appellant] may purge his contempt and obtain his release by the payment of $5,000.00 toward his child support arrears.


On February 13, 2006, a stipulation and order was filed permitting appellant to be on work release.  Appellant filed a petition for a writ of habeas corpus with this court on January 27, 2006, which was rejected. This appeal follows. 



            Appellant argues initially that this appeal is not moot.  We agree, and note that no one has claimed that the appeal is moot.[1]  Further, while appellant has been released from the workhouse, there is no evidence that the contempt has been purged.  There also may be a collateral consequence regarding the impact of the contempt finding on appellant’s potential employment in another state.  See In re McCaskill, 603 N.W.2d 326, 329 (Minn. 1999) (stating that when “an appellant produces evidence that collateral consequences actually resulted from a judgment, the appeal is not moot.”).  Because we conclude that this appeal is not moot, we proceed to address the issues raised on their merits.


            Appellant argues that the district court improperly denied him an opportunity to present evidence at the contempt hearing.  Appellant also argues that the district court abused its discretion by holding him in contempt of court based on inadequate findings, and improperly used its civil contempt power to punish him for his drug use.

“The district court has broad discretion to hold an individual in contempt.  This court reviews a district court’s decision to invoke its contempt power under an abuse-of-discretion standard.”  In re Marriage of Crockarell, 631 N.W.2d 829, 833 (Minn. App. 2001) (citation omitted), review denied (Minn. Oct. 16, 2001).  “Factual findings of a contempt order will be reversed only if they are clearly erroneous.”  Id.  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 order constitutes prima facie evidence that the obligor has the ability to pay the award.  Minn.Stat. § 518A.71 (2006).  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.

          In addressing appellant’s argument that the district court would not allow him to show why he had not or could not comply with that court’s earlier purge requirements, we note initially that there are two stages to a contempt proceeding.  In Hopp v. Hopp, 279 Minn. 170, 174, 156 N.W.2d 212, 216 (1968), the Minnesota Supreme Court set forth the requirements placed upon a district court in its exercise of civil contempt powers, including “[t]hat upon due notice a hearing be conducted and at such hearing the party charged with nonperformance be given an opportunity to show compliance or his reasons for failure.”  

            Some years later, this court in Mahady v. Mahady, 448 N.W.2d 888, 890, 891 (Minn. App. 1989), again noted the requirements set forth in Hopp and stated:

The obligor’s financial condition is at issue twice.  First, the contempt finding depends on a determination that the obligor had the ability to [comply with] the obligations as they came due. . . .  Second, the court must set purge conditions and determine whether the contemnor has the ability to meet those conditions. 


                        . . . .


                        In an initial contempt proceeding, the court may find the obligor in conditional contempt and set conditions to allow the obligor to purge himself of contempt.  At a subsequent stage, the obligor is entitled to be heard on questions of performance or excusable non-performance of purging conditions.


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.”  Mahady, 448 N.W.2d at 890.  Appellant was first found in contempt in November 2005.  While the district court failed to set a hearing date for appellant to reappear to determine if he had complied with the purge requirements, respondent filed a motion that brought the parties back before the court in January 2006.  The January 2006 hearing was a second-stage Mahady hearing.  At that hearing, the district court was required to give appellant the opportunity to explain why he had not, or could not, comply with the original contempt order.  Appellant was denied that opportunity.  Our careful review of the record convinces us that when appellant attempted to address these issues, the district court either cut him off or ignored him.  We, therefore, conclude that appellant was effectively deprived of a meaningful second-stage Mahady hearing and reversal is required. 

            Because we reverse on the Mahady issue, we need not address whether the findings in the original contempt order were adequate to justify a finding of contempt,[2] or whether the district court improperly held appellant in contempt for his past drug use. 

Writ of Habeas Corpus

Appellant argues that this court erred in rejecting his petition for a writ of habeas corpus. Because we are reversing on other grounds and consideration of this issue would not result in additional relief to the appellant, we decline to revisit the longstanding policy that the appellate courts will not exercise original jurisdiction over habeas proceedings and that litigants should first file petitions for habeas relief in the district court in the county in which the detention occurs, subject to appellate review of the district court's decision. See State ex rel. Alexander v. Rigg, 247 Minn. 110, 76 N.W.2d 478 (1956).


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

[1]  Respondent did not file a brief.

[2]  We do note that the district court’s apparent belief that it had discretion to immediately incarcerate appellant pursuant to the November 15, 2005 order was contrary to the holdings of Hopp and Mahady.