659 S.E.2d 331
The Opinion of the Court was delivered PER CURIAM.
The appellant herein and petitioner below, Barbara Conley Deitz (hereinafter
“Mrs. Deitz”), appeals from an order entered January 12, 2007, by the Circuit Court of
Gilmer County. By that order, the circuit court reviewed an order entered June 19, 2006,
by the Family Court of Gilmer County whereby the family court found the appellee herein
and respondent below, Billy Harrah Deitz (hereinafter “Mr. Deitz”), to be in contempt due
to his failure to pay Mrs. Deitz in accordance with the family court's prior orders (See footnote 1) and
ordered Mr. Deitz to pay these sums to Mrs. Deitz within one week or he would face
incarceration for six months. The circuit court determined that the family court had
correctly held Mr. Deitz in contempt but concluded further that the family court had
improperly failed to afford Mr. Deitz an opportunity to purge himself of contempt. On
appeal to this Court, Mrs. Deitz contends that the circuit court erred by interfering with the
family court's order and by staying the contempt proceedings that were initiated to collect
past due alimony contrary to W. Va. Code § 51-2A-12(c) (2001) (Supp. 2007). Upon a
review of the parties' briefs, the record presented for appellate consideration, and the
pertinent authorities, we affirm, in part, and reverse, in part, the circuit court's order and
remand this case to the family court for further proceedings consistent with this opinion.
On August 11, 2005, following hearings in May, 2005, and July, 2005, the
family court entered a Final Divorce Decree divorcing the parties and finding, among other
things, that Mr. Deitz had violated the court's temporary order by (1) selling a marital asset,
namely an oil well drilling service business, for approximately $150,000 of which Mr. Deitz
could account for only $50,000; (See footnote 4) (2) perpetrating a fraud upon the court and depriving Mrs.
Deitz of her equitable share of the parties' marital residence; (See footnote 5) and (3) failing to make the
aforementioned payments to Mrs. Deitz and those on her behalf. As a result, the family
court concluded that Mr. Deitz was in contempt of its temporary order as a result of his
failure to pay these outstanding sums. (See footnote 6) The family court ordered Mr. Deitz to fulfill these
obligations (See footnote 7) and further awarded Mrs. Deitz alimony in gross of $45,000 in an attempt to
equalize the distribution of the parties' marital property. In this regard, the court directed
Mr. Deitz to pay the alimony to Mrs. Deitz in three equal installments of $15,000 each, with
the payments being due on September 1, 2005, September 1, 2006, and September 1, 2007. (See footnote 8) Finally, the family court ordered Mr. Deitz to pay the remaining balance on the parties' AIG
credit card, the remainder of the Stonewall Jackson Memorial Hospital debt, and Mrs.
Deitz's attorney's fees in the amount of $5,000. (See footnote 9) Mr. Deitz appealed this order to the circuit
court, and the circuit court refused his appeal by order entered October 3, 2005. No appeals
to this Court were taken from these rulings.
Thereafter, on September 7, 2005, Mrs. Deitz filed a petition for contempt (See footnote 10) alleging that Mr. Deitz had failed to tender payment of the first installment of her award of
alimony in gross and that he also had not yet satisfied his prior obligations to her, including
payment of her attorney's fees, temporary alimony, and the other martial debts the family
court had ordered him to pay. The family court held a hearing on this matter on February
21, 2006, and, finding Mr. Deitz to be in contempt, entered a Final Order on Petition for
Contempt on March 8, 2006, ruling as follows:
the Respondent [Mr. Deitz] has willfully, knowingly,
intentionally and contumaciously violated the said August 15,
2005 Final Divorce Decree, entered herein, in that, Respondent
has neither paid any of the amounts set forth in the preceding
[order], nor any portion thereof;
. . . .
[A]s of the recited date of this Final Order on Petition for
Contempt, the Respondent continues to be in contempt of this
Court, never having purged himself of contempt set forth in
[the Final Divorce Decree relating to amounts ordered to be
paid by the Agreed Temporary Order]; however, the
Respondent has had an ample opportunity to purge himself of
the earlier contempt, and the same, for the purposes of this
hearing, demonstrate[s] a pattern or history of contemptuous
conduct on the part of the Respondent;
[A]s of the date of this Final Order on Petition for Contempt,
the Respondent owes the Petitioner the sum of Twenty-seven
Thousand One Hundred Two Dollars ($27,102.00), (See footnote 11) as
required by the said August 15, 2005 Final Divorce Decree
entered herein; and, in addition, the Petitioner should be
awarded interest thereon at the legal rate of ten percent (10%)
from September 1, 2005 until paid in full[.]
(Footnote added). The family court found further
[t]hat the Respondent [Mr. Deitz] violated the said
August 15, 2005 Final Divorce Decree entered herein, in a
knowing, willful, intentional and contumacious manner, as
shown by[:] a) Respondent's own testimony that he has
reduced his monthly expenses; b) and that he has made only
one (1) written job application in seven (7) months since the
entry of the August 15, 2005 Final Divorce Decree, despite the
fact that the Respondent is a skilled worker; and c) that he can
make charitable contributions from his Wash Service, yet he
cannot satisfy any part of his obligations to the Petitioner or her
counsel; and d) that he has entered into a second land contract
with a Mrs. Queen; and e) that his Wash Business has a cash
aspect; and f) even having five (5) months notice of this
Petition and hearing, the Respondent has made no effort to
obey the previous August 15, 2005 Final Divorce Decree;
That the Respondent at all times pertinent hereto, did
have, and presently has, the ability to pay the aforesaid
amounts owed by him to the Petitioner, considering all of the
foregoing;
. . . .
That further, the Respondent has the present ability to
purge himself of contempt inasmuch as: a) Respondent has not
reported that he is in default of any major debt; b) Respondent
continues to enjoy the apparent rent free occupation of the
Wash Service property and the former marital residence at 109
Charles Street in Glenville (both owned by the same Woodford
family) . . .; and, c) the Court is mindful of its findings in . . . .
the August 15, 2005 Final Divorce Decree regarding
Respondent's failure to account for approximately $100,000.00
from the proceeds of the unauthorized August 9, 2004 sale of
a marital service rig . . . . As a consequence, the Court believes
that the Respondent is currently accessing those unaccounted
for funds in order to support his former lifestyle[.]
. . . .
That the Respondent IS IN DIRECT CIVIL
CONTEMPT of the prior August 15, 2005 Final Divorce
Decree of this Court, entered herein, and of which he had full
knowledge; and, consequently, Respondent shall have a final
opportunity to purge himself of such contempt by payment of
the sum of Twenty-seven Thousand One Hundred Two Dollars
($27,102.00) to James Wilson Douglas, the attorney for the
Petitioner, on or before March 15, 2006. Should the
Respondent fail to make such payment to said attorney James
Wilson Douglas, counsel for the Petitioner, by 4:00 p.m. EST,
March 15, 2006, then the Respondent shall forthwith surrender
himself to the Sheriff of Gilmer County, West Virginia, and be
immediately incarcerated in the Central Regional Jail, at
Flatwoods, West Virginia, for a period of forty-five (45) days,
pending his release therefrom, conditioned upon his fully
purging himself of contempt as set forth hereinabove; namely,
by the immediate payment unto James Wilson Douglas,
counsel for the Petitioner, the sum of Twenty-seven Thousand
One Hundred Two Dollars ($27,102.00), as required by the
said August 15, 2005 Final Divorce Decree, entered herein,
plus interest thereon at the legal rate of ten percent (10%) from
September 1, 2005.
Finally, the family court awarded Mrs. Deitz an additional $500 in attorney's fees with
respect to her filing and litigation of her Second Petition for Contempt. (See footnote 12) After this ruling,
Mr. Deitz sold his wash service business and paid various of his personal obligations but
did not pay any of the sums he owed Mrs. Deitz. Consequently, Mr. Deitz was incarcerated
for forty-five days, from March 21, 2006, until May 4, 2006, pursuant to the family court's
order.
On May 16, 2006, Mrs. Deitz again filed a petition for contempt against Mr.
Deitz. (See footnote 13) By order entered June 19, 2006, following a hearing held on June 12, 2006, the
family court again held Mr. Deitz in contempt and ordered him to satisfy his obligations to
Mrs. Deitz by June 19, 2006, or face imprisonment for six months. Specifically, the family
court found
[t]hat the Respondent [Mr. Deitz] violated the said
August 15, 2005 Final Divorce Decree entered herein, in a
knowing, willful, intentional and contumacious manner, as
shown by[:] a) that there has been no effort made by the
Respondent to comply with said Order since August 15, 2005;
b) that even after the fort[y]-five (45) day incarceration in
Central Regional Jail for previous contempt charges, the
Respondent still refuses to abide by said Order; c) that the
Respondent owns firearms and furnishings that have a cash
aspect; d) that the Respondent has received in-kind services; e)
that the Respondent has received in-kind gifts; f) that the
Respondent recently purchased a new truck; g) that the
Respondent has disposed of Billy Deitz Wash Service
equipment in order to pay other debt; h) that the Respondent
has had multiple opportunities to purge himself of said
contempt; and i) that the Respondent has access to the
unaccounted for proceeds, in the approximate amount of
$100,000.00, from the unauthorized August 9, 2004 sale of a
marital service rig.
. . . .
That further, the Respondent has the present ability to
purge himself of contempt inasmuch as: a) Respondent has not
reported that he is in default of any major debt; b) Respondent
in March, 2006 transferred the Wash Service property lease to
a Third Party; that the former marital residence at 109 Charles
Street in Glenville (owned by the same Woodford family who
owns the Wash Service) is still occupied rent free by the
Respondent; c) the Respondent's utilities have been paid by a
Third Party, now and during incarceration; d) a down payment
of approximately $2,300.00 for Respondent's new truck was
paid by a Third Party; and, e) the Court is mindful of its
findings in . . . the August 15, 2005 Final Divorce Decree
regarding Respondent's failure to account for approximately
$100,000.00 from the proceeds of the unauthorized August 9,
2004 sale of a marital service rig . . . . As a consequence, the
Court believes that the Respondent is currently accessing those
unaccounted for funds in order to support his former lifestyle[.]
. . . .
That the Respondent IS IN DIRECT CIVIL
CONTEMPT of the prior August 15, 2005 Final Divorce
Decree of this Court, entered herein, and the February 21, 2006
Final Order on (Second) Petition for Contempt of which he had
full knowledge; and, consequently, Respondent shall have a
final opportunity to purge himself of such contempt by
payment of the sum of Twenty-eight Thousand One Hundred
Two Dollars ($28,102.00) (See footnote 14) to the Circuit Clerk of Gilmer
[County], on or before June 19, 2006. Should the Respondent
fail to make such payment to said Circuit Clerk of Gilmer
County, by 12:00 p.m. EDST, June 19, 2006, then the
Respondent shall forthwith surrender himself to the Sheriff of
Gilmer County, West Virginia, and be immediately incarcerated in the Central Regional Jail, at Flatwoods, West
Virginia, for a period not to exceed six (6) months, (See footnote 15) pending
his release therefrom, conditioned upon his fully purging
himself of contempt as set forth hereinabove; namely, by the
immediate payment unto the Circuit Clerk of Gilmer County,
the sum of Twenty-eight Thousand One Hundred Two Dollars
($28,102.00), as required by the said August 15, 2005 Final
Divorce Decree, entered herein, plus interest thereon at the
legal rate of ten percent (10%) from September 1, 2005.
(Footnotes added). The family court also awarded Mrs. Deitz an additional $500 in
attorney's fees for her efforts to bring and prosecute her Third Petition for Contempt. (See footnote 16)
Immediately after the entry of this order, the Circuit Court of Gilmer County
received an ex parte communication regarding the proceedings just had in the family
court. (See footnote 17) In response to this communication, the circuit court, sua sponte, entered an order
on June 19, 2006, finding that “the respondent [Mr. Deitz] has recently become employed”
and that Mr. Deitz should be afforded an opportunity to obtain counsel, and ruling that the
family court's order would be stayed pending further review by the circuit court.
Thereafter, on June 29, 2006, the circuit court held a hearing and ruled, in its July 6, 2006,
order
A. That a conditional stay of the June 19, 2006 Final
Order on Third Petition for Contempt and June 19, 2006 Jail
Commitment Order is hereby GRANTED, provided that the
Respondent [Mr. Deitz] shall:
1. Pay unto the Clerk of this Court, the sum of
$400.00 on or before Friday, June 30, 2006 at 4:00 p.m., and
the Clerk of this Court shall then forthwith pay directly or via
United States mail, said sum of $400.00 unto the Petitioner
[Mrs. Deitz];
2. Pay unto the Clerk of this Court, the sum of
$400.00 within twenty-four (24) hours of his payday from his
employment, and the Clerk of this Court shall then forthwith
pay directly or via United States mail, said sum of $400.00 unto
the Petitioner; and,
3. Process a timely statutory appeal of the
aforesaid June 19, 2006 Final Order on Third Petition for
Contempt and June 19, 2006 Jail Commitment Order, within
thirty (30) days of entry.
B. That should the Respondent fail, neglect or refuse to
satisfy any of the foregoing conditions of this Stay, then said
Stay shall be automatically lifted and vacated, and any law
enforcement officer to whom this Order may come, shall FORTHWITH apprehend the Respondent and place him in the
Central Regional Jail until he has purged himself of contempt
by fully complying with the aforesaid June 19, 2006 Final
Order on Third Petition for Contempt and June 19, 2006 Jail
Commitment Order.
In compliance with this order, Mr. Deitz filed, on July 19, 2006, his appeal from the family
court's order and began making $400 payments to the circuit clerk commensurate with his
paydays. His payments began on June 30, 2006, and, pursuant to the record in this case,
were current through March 19, 2007. As of March 19, 2007, Mr. Deitz had paid Mrs.
Deitz, through the circuit clerk, a total of $7,600 of the $28,102 due her. There is no
indication that Mr. Deitz paid Mrs. Deitz the second alimony in gross installment of
$15,000 that was due on September 1, 2006. (See footnote 18)
By final order entered January 12, 2007, the circuit court affirmed the family
court's order insofar as it held Mr. Deitz to be in contempt of its prior orders as a result of
his nonpayment of the monies owed to Mrs. Deitz. However, the circuit court concluded
that the family court had not provided Mr. Deitz an opportunity to purge himself of the
aforementioned contempt, both because of the limited time the family court accorded to Mr.
Deitz to purge his contempt and also because the family court did not specifically “set forth
a 'method' by which the contemptor may purge himself of the contempt.” The circuit court
further questioned the family court's finding that Mr. Deitz had the ability to pay the
amounts he owed insofar as the family court did not identify any certain assets from which
Mr. Deitz could satisfy his obligations. Accordingly, the circuit court set aside that portion
of the family court's order directing the incarceration of Mr. Deitz if he continued in his
refusal to make payment and remanded the matter with instructions “that the Family Court
enter an order of contempt, allowing the respondent [Mr. Deitz] to purge himself of that
contempt by remaining gainfully employed and by making payments of $400.00 per pay
period, to the Clerk of this Court, within 24 hours of his receipt of said pay, which sum
upon receipt thereof shall be paid by the Clerk to the petitioner [Mrs. Deitz].” (See footnote 19) From this
order of the circuit court entered January 12, 2007, Mrs. Deitz now appeals to this Court.
[i]n reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.
Syl., Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004). Guided by this standard,
we turn now to the errors assigned in this case.
(a) In addition to the powers of contempt established in
chapter forty-eight [§§ 48-1-101 et seq.] of this code, a family
court judge may:
(1) Sanction persons through civil contempt
proceedings when necessary to preserve and enforce the rights
of private parties or to administer remedies granted by the
court;
(2) Regulate all proceedings in a hearing before the
family court judge; and
(3) Punish direct contempts that are committed in the
presence of the court or that obstruct, disrupt or corrupt the
proceedings of the court.
(b) A family court judge may enforce compliance with
his or her lawful orders with remedial or coercive sanctions
designed to compensate a complainant for losses sustained and
to coerce obedience for the benefit of the complainant.
Sanctions must give the contemnor an opportunity to purge
himself or herself. In selecting sanctions, the court must use
the least possible power adequate to the end proposed. A
person who lacks the present ability to comply with the order
of the court may not be confined for a civil contempt.
Sanctions may include, but are not limited to, seizure or
impoundment of property to secure compliance with a prior
order. Ancillary relief may provide for an award of attorney's
fees.
See also W. Va. Code § 48-1-304 (2001) (Repl. Vol. 2004) (setting forth general contempt
powers of courts in domestic relations cases); W. Va. Code § 51-2A-2(a)(10) (authorizing
family courts to “exercise jurisdiction over . . . [a]ll actions brought, including civil
contempt proceedings, to enforce an order of spousal . . . support . . . .”).
Despite the authority of family courts to enforce their orders through contempt
proceedings, family courts nevertheless remain courts of limited jurisdiction that are
inferior to circuit courts. As such, a final order of a family court may be challenged in the
circuit court either by a direct appeal to the circuit court or through resort to the circuit
court's original jurisdiction.
Pursuant to Article VIII, Sections 6 and 16 of the West Virginia Constitution, W. Va. Code § 51-2-2 (1978), and the Family Court statutes, W. Va. Code §§ 51-2A-1 to 23 (2001), family courts are courts of limited jurisdiction and are inferior to circuit courts. Family courts are, therefore, subject to both the appellate jurisdiction and the original jurisdiction of the circuit courts in this State.
Syl. pt. 4, State ex rel. Silver v. Wilkes, 213 W. Va. 692, 584 S.E.2d 548.
Alternatively, a party aggrieved by an order of a family court may obtain
more immediate relief therefrom by seeking a stay of the family court's ruling pending an
appeal therefrom. In this respect, the Legislature has provided very explicit instructions for
parties desiring to obtain a stay of a family court's final order:
(a) Any person desiring to file a petition for appeal from
a final order of the family court may file a motion for a stay of
proceedings to the family court in which the order was entered.
The motion for a stay shall be filed with the clerk of the circuit
court and served on the respondent in accordance with rule 5 of
the rules of civil procedure. The family court may, sua sponte,
order a stay of all or part of a final order pending appeal.
Subject to the provisions of subsection (c) of this section, the
family court may order a stay for the period of time allowed for
the filing of a petition for appeal to the circuit court or for any
additional period of time pending disposition of the appeal. If
the circuit court refuses to consider the petition for appeal, the
stay is vacated.
(b) If the family court judge denies a motion for a stay
of the proceedings pending appeal, or if the relief afforded is
not acceptable, the person desiring to file the petition for appeal
may file a motion for a stay of the proceedings to the circuit
court. The motion for stay shall be filed with the clerk of the
circuit court and served upon the other party in accordance with
rule five of the rules of civil procedure. Subject to the
provisions of subsection (c) of this section, the circuit court
may order a stay for the period of time allowed for the filing of
a petition for appeal to the circuit court or for any additional
period of time pending disposition of the appeal. If the circuit
court refuses to consider the petition for appeal, the stay is
vacated.
(c) An order granting a motion for a stay under the
provisions of this section may not include a stay of an award
for the payment of spousal support or child support pending the
appeal, except that an award of past-due child support may be
stayed pending an appeal.
W. Va. Code § 51-2A-12 (2001) (Supp. 2007). See also W. Va. R. Prac. & Proc. for Fam.
Ct. 27 (defining procedure for requesting stay of family court order in language virtually
identical to W. Va. Code § 51-2A-12).
Applying these authorities to the facts giving rise to the instant appeal, it is
important to note that when the circuit court sua sponte stayed enforcement of the family
court's order of contempt, it did so not at the behest of a party aggrieved by said order but,
instead, on its own motion. No party had filed a petition for appeal from the family court's
June 19, 2006, contempt order nor had any party requested the circuit court to exercise its
original jurisdiction to prevent the family court from enforcing its order. Moreover, while
W. Va. Code § 51-2A-12(a) permits a family court to sua sponte stay its own order, this
section does not accord identical powers to circuit courts. Rather, circuit courts may stay
an order entered by a family court only after a motion requesting such relief has been
properly filed with the circuit court. Here, no such motion had been filed with the circuit
court at the time it sua sponte stayed enforcement of the family court's contempt order.
Because no instrument had been filed by any party requesting the circuit court to grant
relief from the family court's order of June 19, 2006, the circuit court exceeded its
legitimate powers by sua sponte staying the enforcement of the family court's order.
Accordingly, we reverse the circuit court's rulings to the contrary. (See footnote 21)
[w]ithin thirty days following the entry of a final order of a family court judge . . . , any party may file a petition for appeal with the circuit court. No appeal may be had under the provisions of this article from any order of a family court judge . . . other than a final order.
Accord W. Va. R. Prac. & Proc. for Fam. Ct. 28 (explaining procedure for filing an appeal
from a family court's final order). See also W. Va. R. Prac. & Proc. for Fam. Ct. 22(c)
(directing, in part, that “[a] family court final order shall contain language explicitly
informing the parties (1) that it is a final order; (2) that any party aggrieved by the final
order may take an appeal either to the circuit court or directly to the supreme court of
appeals; [and] (3) that a petition for appeal to the circuit court may be filed by either party
within thirty days after entry of the final order . . . .”). Therefore, the circuit court properly
had before it for consideration Mr. Deitz's appeal from the family court's order of
contempt.
Finding that the circuit court had jurisdiction to hear Mr. Deitz's appeal from
the family court's order of contempt, we must now consider whether the circuit court
correctly reviewed the family court's order. When a case is appealed from family court to
circuit court,
(a) [t]he circuit court may refuse to consider the petition
for appeal[,] may affirm or reverse the order, may affirm or
reverse the order in part or may remand the case with
instructions for further hearing before the family court judge.
. . . .
(c) The circuit court shall review the findings of fact
made by the family court judge under the clearly erroneous
standard and shall review the application of law to the facts
under an abuse of discretion standard.
W. Va. Code § 51-2A-14 (2005) (Supp. 2007). (See footnote 22)
In its review of the family court's order of contempt, the circuit court affirmed the family court's finding that Mr. Deitz was in contempt of its prior orders. The record evidence is abundant that Mr. Deitz has repeatedly, and contumaciously, refused to obey the family court's orders directing him to pay Mrs. Deitz the monies he owes her. Therefore, we find that the circuit court correctly upheld the family court's ruling of contempt and affirm the circuit court's order in this regard.
Having affirmed the contempt ruling, though, the circuit court then concluded that the family court had not afforded Mr. Deitz an ample opportunity to purge himself of contempt. In particular, the circuit court found that the family court had not allowed Mr. Deitz a reasonable period of time within which to pay the amounts he previously had been ordered to pay before ordering that he be incarcerated for his nonpayment. Specifically, the circuit court ruled that
[t]he family court abused its discretion when it allowed the
respondent [Mr. Deitz] a very limited period of time to pay the
sum of approximately twenty-seven thousand dollars . . . . As
to the hearing that was held on February 21, 2006, (even if one
gives the family court the benefit of the doubt that the period of
time should be calculated from February 21, 2006, when the
order was not entered until March 10, 2006), the respondent
only had 23 days to come up with twenty-seven thousand
dollars, and as to the June 12, 2006 hearing, (which order was
not entered until June 19, 2006), the respondent was only given
seven days to come up with twenty-seven thousand dollars.
Such limited period of time is clearly an abuse of discretion by
the family court, under both 48-1-304 and 51-2A-9.
In addition, the respondent was out of jail, as a result of
the previous order of incarceration by the family court,
approximately 40 days, when the family court ordered his
incarceration for a second time, for the failure to pay the same
sums. When adding this fact, the limited period of time to
purge the contempt is especially egregious.
The family court['s] . . . order was clearly erroneous in
the application of 48-1-304(b) in that the family court failed to
even set forth a “method” by which the contemptor may purge
himself of the contempt.
The circuit court also questioned the propriety of the family court's finding that Mr. Deitz
“had the current ability to pay the twenty-thousand [sic] dollars that was ordered” and
concluded that the family court's findings in this regard were “not fact specific as to assets
that the respondent [Mr. Deitz] has available to pay the lump sum of twenty-seven thousand
dollars[.]” We disagree with the circuit court's assessment of the propriety of the family
court's contempt sanctions.
When imposing sanctions for contempt, a court must afford the contemnor
an opportunity to purge him/herself of the contempt. With respect to the contempt powers
of family court judges, W. Va. Code § 51-2A-9(b) directs that “[s]anctions must give the
contemnor an opportunity to purge himself or herself.” Similarly, W. Va. Code § 48-1-
304(b) requires “the court shall afford the contemnor a reasonable time and method
whereby he may purge himself of contempt.” Neither of these provisions, however,
explains the manner in which a court should allow a contemnor to purge him/herself of
contempt but instead rest such a determination in the court's sound discretion.
It appears that the circuit court's main concern with the family court's
sanctions is the length of time within which it expected Mr. Deitz to purge himself of
contempt by paying the monies he owes to Mrs. Deitz. Although the circuit court found
these time periods to be unreasonably short, we believe that, given the history of this case
and Mr. Deitz's apparent steadfast resolve to not pay Mrs. Deitz the monies he owes her,
the time periods established by the family court were quite reasonable. While the circuit
court suggests that these rulings require Mr. Deitz to quickly obtain a sum in excess of
twenty-seven thousand dollars in order to satisfy his debts, the circuit court fails to consider
the fact that a portion of this debt has been due since before the family court entered its final
order of divorce on August 11, 2005. Another substantial portion of this debt, i.e. $15,000,
has been due since September 1, 2005, and Mr. Deitz was ordered to pay this specific
amount because he, himself, ignored the family court's prior orders, disposed of marital
property without authorization, appropriated the proceeds of this sale to his own use, and,
when questioned by the family court about this transaction, could not account for
approximately two-thirds of the total $150,000 proceeds he received by virtue of the sale.
This is not a case where the contemnor was blindsided by a court's order to pay or be
incarcerated. Here, Mr. Deitz has had ample notice of the nature and amount of his debts,
and he has, on numerous occasions, willfully refused to pay them. Under these
circumstances, the family court did provide Mr. Deitz an adequate opportunity to purge
himself of contempt, and the circuit court abused its discretion by reaching a contrary
conclusion.
The circuit court also takes issue with the family court's finding that Mr. Deitz
has the present ability to satisfy the aforementioned debts. Both W. Va. Code § 51-2A-9(b)
and W. Va. Code § 48-1-304(c) prohibit a contemnor's incarceration for contempt due to
nonpayment of monies ordered to be paid where he/she “did not pay because he[/she] was
financially unable to pay,” W. Va. Code § 48-1-304(c). Accord Moore v. Hall, 176 W. Va.
83, 85 n.2, 341 S.E.2d 703, 705 n.2 (1986) (“[A] person cannot be found in contempt of
court for failure to make court-ordered payments, unless such person had the ability to pay
and willfully refused to do so.”). The family court found that Mr. Deitz has resources at his
disposal from which he could pay Mrs. Deitz the sums he owes her. There is no evidence
in the record presented for our consideration on appeal to dispute this finding, and Mr.
Deitz, in his argument before this Court, did not indicate that he could not pay the amounts
the family court has ordered him to pay. As we previously have observed, “[t]he
[contemnor] was free to present any evidence he deemed relevant and was uninhibited in
this regard by the lower court.” State ex rel. Zirkle v. Fox, 203 W. Va. 668, 673, 510 S.E.2d
502, 507 (1998). Because Mr. Deitz did not sustain his burden of proof on this point, and
because there is no indication in the record of this case to suggest that Mr. Deitz is not able
to pay these amounts, we conclude that the circuit court erred by finding that the family
court had failed to consider Mr. Deitz's present ability to pay when, clearly, it had done so.
Accordingly, we reverse the circuit court's ruling on this point.
Finally, the circuit court questions the propriety of the nature of the sanctions
the family court imposed upon Mr. Deitz as a result of his contempt. In its contempt order
of June 19, 2006, the family court allowed Mr. Deitz one week to pay Mrs. Deitz the
monies he owes her or face incarceration for a period of six months. The circuit court,
however, found the sanction of imprisonment to be too harsh and instead directed the
family court to enter an order of contempt
allowing the respondent [Mr. Deitz] to purge himself of that contempt by remaining gainfully employed and by making payments of $400.00 per pay period, to the Clerk of this Court, within 24 hours of his receipt of said pay, which sum upon receipt thereof shall be paid by the Clerk to the petitioner [Mrs. Deitz].
While we appreciate the circuit court's attempts to encourage Mr. Deitz to continue making
regular payments to Mrs. Deitz in satisfaction of his obligations to her, we nevertheless find
that the circuit court abused its discretion by overturning the sanctions imposed by the
family court. W. Va. Code § 48-1-304(b) and W. Va. Code § 51-2A-9(b) both indicate that
imprisonment is an appropriate sanction for contempt where the circumstances warrant such
a penalty. Furthermore, we typically have afforded broad discretion to lower courts
imposing sanctions for contempt to enable those tribunals to fashion a punishment that
corresponds with the intransigence of the contemnor. In this regard, we have observed that
“the law is . . . not to be lightly mocked,” and a court may, therefore, “impos[e] whatever
legal sanctions it ch[ooses] to compel the [contemnor's] acquiescence to the court's
authority.” Donahoe v. Donahoe, 219 W. Va. 102, 105, 632 S.E.2d 42, 45 (2006) (per
curiam). Accord Armstrong v. Armstrong, 201 W. Va. 244, 248, 496 S.E.2d 194, 198
(1997) (per curiam) (directing circuit court to determine whether contemnor had ability to
pay monies pursuant to divorce decree, and, if he had such ability to pay, further instructing
circuit court to hold contemnor “in civil contempt with an appropriate sanction until the
monies owed under the divorce decree are paid in full” (emphasis added)). Given the broad
discretion a court has in deciding what sanctions are most appropriate to punish a
contemnor for disobeying the court's orders and considering the willful disobedience Mr.
Deitz has displayed for the family court's many orders, we do not believe the family court's
sanctions of immediate payment within one week's time or incarceration were too severe.
Therefore, we reverse the circuit court's ruling to the contrary and remand this case to the
family court for the imposition of sanctions in accordance with its June 19, 2006, order of
contempt.
On remand to the family court, we cannot emphasize enough that, when Mrs.
Deitz initially pursued contempt sanctions against Mr. Deitz, she undoubtedly had two
aims: (1) to receive the monies Mr. Deitz has been ordered to pay her and (2) to punish Mr.
Deitz for his recalcitrance. Therefore, we urge the family court to devise a sanction that
will ensure Mrs. Deitz's timely receipt of the monies to which she is entitled and of which
Mr. Deitz's payment is long overdue. (See footnote 23) To this end, the family court should consider Mr.
Deitz's current ability to pay to determine whether it would be appropriate to continue Mr.
Deitz's current bi-monthly payments of $400, whether the amount of each payment should
be increased, or whether another payment arrangement would more fitting. Moreover, the
family court should, consistent with W. Va. Code § 48-1-304(d), (See footnote 24) award Mrs. Deitz interest
on the unpaid installments of the alimony award as to which Mr. Deitz is in arrears. Finally,
the family court is directed to hold Mr. Deitz accountable for his dissipation of marital
assets and to ensure that Mrs. Deitz receives her equitable share of such property. While
we appreciate Mr. Deitz's efforts to date to pay in accordance with the bi-monthly payment
plan established by the circuit court, under no circumstances should Mr. Deitz be rewarded
for his defiance of the family court's orders.