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Stehle v. Zimmerebner

Supreme Court of Arkansas

June 30, 2016

KATIE D. STEHLE APPELLANT
v.
ERNEST W. ZIMMEREBNER APPELLEE

         APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23DR-00-856] HONORABLE H.G. FOSTER, JUDGE

          Dustin Duke, Center for Arkansas Legal Services, for appellant.

          No response.

          COURTNEY HUDSON GOODSON, Associate Justice

         Appellant Katie D. Stehle appeals the order entered by the Faulkner County Circuit Court incarcerating her as a sanction for her failure to make proper efforts to retire her child-support arrearage. For reversal, Stehle contends that the circuit court erred by incarcerating her for civil contempt without finding that she is able to pay the arrearage. She also argues that the circuit court erred in finding her in contempt and by incarcerating her because its orders were too indefinite for her to know the duties imposed on her. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(7), as a second or subsequent appeal following an appeal decided by this court. Both arguments raised on appeal have merit, and we reverse and remand for proceedings consistent with this opinion.

         I. Factual Background

         Our review of the record reflects that Stehle and appellee Ernest W. Zimmerebner divorced in 2001. At that time, the circuit court awarded Stehle custody of their daughter, KZ. However, in 2003, the circuit court granted Zimmerebner's motion for a change of custody and ordered Stehle to pay child support. The court subsequently denied Stehle's request that custody of the child be returned to her, and Stehle appealed that order. In an unpublished opinion, the court of appeals reversed. Stehle v. Zimmerebner, CA-07-165 (May 21, 2008). This court accepted review of that decision, and we affirmed the circuit court's denial of Stehle's motion for a change of custody. Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009).

         The instant litigation begins with an order filed on May 1, 2014. In it, the circuit court found that Stehle was in willful contempt for her failure to pay child support as ordered, and the court granted judgment for an arrearage in the amount of $15, 536.08. Along with Stehle's biweekly support obligation of $189, the court ordered Stehle to pay the additional sum of $37.80 to be applied toward the arrearage. The order also contained a provision stating that "[s]hould [Stehle] miss any payment and remain in default for 30 days, then [Stehle] shall be immediately picked up and incarcerated until such time as all arrears are satisfied."

         On January 20, 2015, Zimmerebner filed a motion for contempt and body attachment, alleging that Stehle had missed payments of child support and had remitted sums below the required amount. Pursuant to the May 1, 2014 order, he asked the circuit court to issue an order of body attachment for Stehle's immediate arrest. The motion also included a request for an increase in child support and asserted that Stehle was in contempt for violating certain aspects of the court's visitation orders and for not paying her share of health-care expenses incurred on behalf of the child. The circuit court issued a body attachment that same day, stating that Stehle was to be held on a cash bond of $12, 035.99, the current amount of the arrearage. Stehle responded with a motion to stay execution of the body attachment, and she requested an expedited hearing on her ability to pay the arrearage in support. In her motion and accompanying brief, she alleged that she had been a full-time student from 2012 until the spring of 2014, at which time she had earned a bachelor's degree and a teaching certificate. Stehle also stated that she had obtained a teaching job in late November 2014 and that since early December 2014, her child-support payments had been made pursuant to a wage-withholding order. The circuit court granted Stehle's request to stay the execution of a body attachment pending a hearing that the court set for January 28, 2015.

         At the hearing, Stehle testified that she has two children living in her home and that her husband had lost his job the past September. She stated that she had no money in savings, that her house was mortgaged, and that she could not obtain a loan to retire the arrearage. Stehle further testified that, following her graduation, she worked part-time at a daycare center and that she worked as much as she was allowed. She said that she had paid what she could in support except for those times when she did not have work. Stehle stated that in the fall of 2014 she worked forty hours per week as an unpaid substitute teacher as part of a teaching-internship program. She testified that she would learn the following June whether her teaching contract would be extended for another year.

         Following the hearing, the circuit court issued an order dated February 13, 2015. In this order, the court continued the stay of the body attachment and reserved ruling on the alleged contempt for her failure to pay support until a review hearing in July 2015. The order stated that Stehle "should make every effort to pay her child support pursuant to previous orders of the Court, including maintaining full-time gainful employment." The court also ordered Stehle to apply toward the child-support arrearage any income-tax refund she might receive for the 2014 tax year.

         On March 16, 2015, the circuit could held a hearing on the other contempt issues and the request for increased child support, as well as a related petition for an order of protection. In its order from that hearing dated April 2, 2015, the circuit court found that Stehle was in contempt for engaging in a series of behaviors in violation of previous orders. It withheld punishment pending the July 2015 hearing. The circuit court increased Stehle's child-support obligation to $201 to be paid every two weeks, and the court ordered her to pay $369.60 as her portion of the child's medical expenses. In addition, the circuit court awarded Zimmerebner $3, 100 in attorney's fees. With respect to both the medical expenses and attorney's fees, the order states that Stehle "shall make a good faith effort to retire this debt and the Court shall evaluate her efforts at the review hearing."

         At the July 2015 hearing, the circuit court determined that the arrearage had been reduced to $11, 909. The parties agreed that Stehle had paid $200 toward the medical expenses and attorney's fees. Stehle's husband, Michael Stehle, testified that after he lost his job, he cashed in his 401k that netted $34, 000, which was used during the period of his unemployment. Michael stated that they had $380 in the bank; that they were two months behind on their mortgage; and that they had been required to make substantial repairs to their vehicle. He testified that they owed state and federal income taxes for the 2014 tax year; thus, they did not receive a refund.

         The circuit court took the issue of Stehle's contempt and possible incarceration under advisement. On July 31, 2015, the circuit court entered an order finding Stehle in contempt and requiring her to report to jail every weekend. Specifically, the order states, 1. That Defendant shall report to the Faulkner County Detention Center . . . at 5:00 p.m. on July 31, 2015, as a sanction for the Court's finding of civil contempt for failure to make proper efforts to retire her child support arrearages as of July 27, 2015, in the amount of $11, 909.00 (which does not include interest accrued as of March 31, 2014). That Defendant shall be released at 7:00 p.m. Sunday, August 2, 2015, and Defendant shall report to the Faulkner County Detention Center the following Friday at 5:00 p.m. until Sunday at 7:00 p.m. where she will continue to be incarcerated every weekend until proper effort, in the opinion of the Court, is made to retire the sums previously ordered to be paid.

         2. In determining what is a proper effort, the Court will consider substantial payment reducing the arrearages, a substantial regular payment being established, additional employment (such as a summer job given that Defendant is a teacher and has her summers off), or any other action that convinces the Court that the Defendant is taking this obligation seriously, which to date has not occurred.

         3. Upon satisfaction of the Court that substantial effort is being made, Defendant will be deemed to have purged herself of contempt. The issue of Plaintiff's request for $800.00 in attorney's fees for the present action is taken under advisement.

         Stehle brings this appeal from the circuit court's decision.

         II. Ability to Pay

         As her first point on appeal, Stehle argues that the circuit court erred by holding her in contempt without determining whether she has the ability to pay additional sums toward the arrearage. She contends that she does not have the means to pay the arrearage and that the circuit court wrongfully ordered her incarceration for the nonpayment of this debt.

         Contempt is divided into criminal contempt and civil contempt. Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000). Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004). Civil contempt, on the other hand, protects the rights of private parties by compelling compliance with orders of the court made for the benefit of those parties. Johnson, supra. Because civil contempt is designed to coerce compliance with the court's order, the contemnor may free himself or herself by complying with the order. Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (2007). This is the source of the familiar saying that civil contemnors "carry the keys of their prison in their own pockets." Ivy v. Keith, 351 ...


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