This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Cheryl Ann Nelson, petitioner,
Larry Allen Nelson,
Filed August 27, 1996
Olmsted County District Court
File No. F091369
Thomas P. Kelly, Olmsted County Attorney, Government Center, 151 SE 4th Street, Rochester, MN 55904 (for Respondent)
Therese Wintering, 18 Third Street SW, Suite 303, Rochester, MN 55902 (for Respondent)
Gerald S. Weinrich, 500 1st Avenue SW, Suite 201, Rochester, MN 55902 (for Appellant)
Considered and decided by Amundson, Presiding Judge, Norton, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant contends the trial court abused its discretion when it found him in constructive civil contempt and punished him for having failed to pay court-ordered child support and for having violated a court order. The trial court did not abuse its discretion. We affirm.
Respondent Cheryl Ann Nelson (mother) filed a petition for an order to show cause against her ex-husband, appellant Larry Nelson (father), for his failure to pay court-ordered child support. County records show that, as of September 1995, father had not paid child support for at least one year. The county reported child support arrears of $4,128, plus arrears for child care costs.
Father received two continuances before the matter came on for hearing; the court granted the second continuance on the condition that father pay $50 to mother for her costs. At the hearing for the second continuance, counsel informed the court that father had been telling his five-year-old son that mother wanted father to go to jail and that father would probably not be able to visit him anymore. Father admitted making these statements. The court prohibited father from making any such statements to the children, calling the statements harmful to the children, chastising father for putting the children in the middle of the parents' difficulties, and warning father that his continued remarks would jeopardize his visitation rights. Father violated this order immediately, however. The son reported to mother that, after the hearing, father had made further remarks. Father later admitted to a county child support officer that he had told his son "that the Judge wants to put him in jail and his son asked him why he didn't just kill the Judge."
Although father had requested the second continuance in order to obtain counsel, he ultimately appeared at the hearing pro se, having refused to answer the questions on the application for counsel out of fear of incriminating himself. Consequently, without knowing father's financial circumstances, the court could not determine whether or not he was entitled to counsel at the county's expense.
When the county called father for cross-examination, he asserted his Fifth Amendment privilege against self-incrimination and refused to answer questions about his employment. The court then explained to father:
When father responded, "I don't understand what you're saying," the court explained further, "Well, if you're not answering, I can assume that it's because you don't want them to know about some -- some money or assets or things such as that." Father replied, "Well, you're -- I guess you're entitled to assume whatever you want."
In a criminal trial you're not required to take the stand and testify, but in a civil trial you are. If you take and assert the constitutional right not to testify on the grounds that some of your answers might incriminate you, the Court, in a civil matter, says that means that the answers that you would give would in fact be detrimental, and so I can assume that the information that you would give to him is the -- would be detrimental to your interests.
Father declined to answer questions about his former employer, payments from his former employer, loans, monthly expenses, sources of income, bank accounts, checking accounts, cash, mode of transportation, and his reason for not paying child support. He also pleaded the Fifth Amendment when questioned about his failure to pay the $50 fee from the second continuance and his violation of the court order not to speak to his children about this proceeding.
The district court found father in constructive civil contempt of court, because he failed to pay the $50 fee that he promised the court he would pay to respondent and because he had the ability to pay the ordered child support, but failed to do so. The court also found appellant in constructive civil contempt of court for having made comments to his son in direct violation of the court's order. Consequently, the court remanded father to the custody of the county sheriff and placed him in the adult detention center until he met these conditions: pay $2,000 for the court fee and child support arrears; provide complete financial disclosure to the court; and work with Olmsted County to set a payment schedule for his support arrears. The court also limited father's visitation rights until further order of the court. Finally, the court entered judgment against father in the sum of $4,610 for child support arrears.
1.for contempt based on failure to pay child support
Constructive civil contempt arises when a person disobeys a lawful court order. Minn. Stat. §subd. 3(3) (1994). "The purpose of the contempt power is to provide the trial court with the means to enforce its orders."
Erickson v. Erickson
, 385 N.W.2d 301, 304 (Minn. 1986). This court imposes the abuse of discretion standard when reviewing a trial court's exercise of power to enforce a child support order.
"Civil contempt proceedings are designed to induce future performance of a valid court order, not to punish for past failure to perform."
Engelby v. Engelby
, 479 N.W.2d 424, 426 (Minn. App. 1992). Civil contempt may also result in jail time, however.
Minn. Stat. §(1994);
Minn. Stat. §(1994) (obligor's disobedience of child support order is prima facie evidence of contempt). Indeed, the order to show cause that father received informed him that "a finding of contempt may be punishable by jail."
When 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, and in such case the act shall be specified in the warrant of commitment.
Father invoked the Fifth Amendment privilege to avoid incriminating himself for not paying child support despite his ability to do so. The privilege against self-incrimination applies in civil cases, such as this one, as well as criminal cases.
, 479 N.W.2d at 427. But father may not gain an unfair advantage by invoking the Fifth Amendment, because he is the only source of evidence for mother's case.
Parker v. Hennepin County Dist. Court
, 285 N.W.2d 81, 83 (Minn. 1979)).
To prevent unfair use of the privilege by civil defendants, courts have drawn inferences adverse to the defendant, stricken the defendant's pleadings, counterclaims or affirmative defenses, and even entered default judgments. Such sanctions do not punish a defendant for asserting the privilege, but for failing to answer as he typically would under normal circumstances.
Father claims that he did not understand the possible consequences of his actions and was entitled to further explanation from the court.
This claim fails, however, in light of the plain notice in the order to show cause that warned father of punishment "by jail." Indeed, father's repeated comments to his children demonstrate that he knew he could go to jail as a result of these proceedings. In addition, the trial court explained to father that, when he pleaded the Fifth Amendment, the trial court would draw adverse inferences from his failure to testify. Father acknowledged that he understood. Father admitted to renting a home, but refused to answer numerous questions about his income, his job history, his financial status, his reason for not paying support, and how he affords to make payments on his home, car or boat. From this silence, the court was entitled to assume facts to father's detriment.
, 285 N.W.2d at 83 (Fifth Amendment does not prohibit court from making adverse inferences in civil action when party refuses to testify (citing
Baxter v. Palmigiano
, 425 U.S. 308, 318, 96 S.Ct. 1551, 1558 (1976)). The court could assume that father has money and assets sufficient to pay support, but simply has chosen not to do so. Under those circumstances, Minn. Stat. §gave the court the power to imprison father until he paid child support and fees, provided financial information, and reached an agreement to pay arrearages. The court did not abuse its discretion in imposing these sanctions.
2.for contempt based on interaction with children
Father also contends that the trial court abused its discretion when, as a sanction for pleading the Fifth Amendment, it limited his visitation rights to his children. Contrary to father's belief, however, these sanctions are not related to his pleading the Fifth, but rather are for constructive civil contempt of court based on father's violation of the court order that prohibited him from discussing the contempt proceedings with his children.
The visitation statute allows the court to restrict visitation in order to serve the children's best interests only if it finds that visitation is likely to endanger the children's physical or emotional health or that the noncustodial parent has chronically and unreasonably failed to comply with visitation. Minn. Stat. §subd. 5 (1994). The trial court has broad discretion in establishing visitation of children.
Manthei v. Manthei
, 268 N.W.2d 45, 465 (Minn. 1978).
Before the second continuance hearing, the court had received reports that father had told his son that mother wanted him to go to jail. Finding father's remarks harmful to the children, the court ordered father not to discuss the contempt proceedings with his children or else he would not be able to see them. The court said:
At the motion hearing, the court learned from mother and the social worker that father had violated this order. Indeed, father had admitted to the social worker that he had made additional remarks to his children. When the court held father in contempt for willfully violating the order, it had the power to limit visitation, because it had warned father of this consequence at the prior hearing and had found father's conduct to be emotionally harmful to the children.
Minn. Stat. §subd. 5. The court did not abuse its discretion by limiting visitation in order to safeguard the emotional welfare of father's children.
These kids didn't ask to be part of your *fight with your ex-wife. They didn't have any choice about where they were born or when. It happened. And you have no right *to draw them into this fight. If I throw you in jail, somebody can tell them that you're in jail and why it happened. But you don't have to start playing games with these kids and try to put *their mother in a bad light by saying that you might end up in jail. * I'm telling you that if you do that again, that is harmful to the children, and I won't let you see them then until we get it resolved.
We note for the record that father has not raised any procedural challenge to the contempt proceedings under
Hopp v. Hopp
, 279 Minn. 170, 174-75, 156 N.W.2d 212, 216-17 (1968) or, more recently,
Mower County Human Servs. v. Swancutt
, ___ N.W.2d ___ (Minn. July1996).
Father does not challenge the sufficiency of findings to support the court's order. Although the trial court did not make an express finding on the children's best interests before limiting visitation, we see from the facts here, the court's order, and its earlier remarks to father on the record, that the likelihood of harm to the children resulting from father's continued remarks about the contempt proceeding justified the court's decision and suggest the court implicitly found that temporary limited visitation would serve the best interests of the children.
See Gregory v. Gregory
, 408 N.W.2d 695, 698 (Minn. App. 1987) (lack of specific findings do not require remand where record presents facts supporting trial court's decision).