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IN THE COURT OF APPEALS 7/29/97 OF THE STATE OF MISSISSIPPI

NO. 96-CA-00152 COA

JAMES CURTIS FLOYD APPELLANT v. CYNTHIA KAY FLOYD APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. THOMAS L. ZEBERT COURT FROM WHICH APPEALED: RANKIN COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: G. DAVID GARNER ATTORNEY FOR APPELLEE: L. WESLEY BROADHEAD (WITHDRAWN); CYNTHIA DAVIS (PRO SE) NATURE OF THE CASE: DOMESTIC RELATIONS-HEARING ON CONTEMPT MOTION FOR FAILURE TO PAY CHILD SUPPORT

TRIAL COURT DISPOSITION: THE CHANCELLOR FOUND JAMES CURTIS FLOYD TO BE IN CONTUMACIOUS CRIMINAL CONTEMPT OF COURT FOR FAILURE TO PAY CHILD SUPPORT. MANDATE ISSUED: 8/19/97

BEFORE McMILLIN, P.J., HERRING, AND KING, JJ. McMILLIN, P.J., FOR THE COURT: James Curtis Floyd was found to be in "contumacious criminal contempt" of the Chancery Court of Rankin County for non-payment of child support. The chancellor ordered Floyd incarcerated "until such time as he has purged himself by paying the judgment [determining the arrearage] in the amount of $12,248.57, plus interest at the legal rate, or an amount to be approved by this Court." Floyd has appealed this judgment claiming that the chancellor was manifestly in error in determining that his non-payment was wilful. Floyd claims that his failure to pay was based upon his inability to work due to medical problems. We determine that the present judgment must be reversed and remanded for problems apparent on the face of this record. The basis on which we reverse does not require us to reach a determination of whether, in the times that Floyd's child support obligations were accruing, he was unable to pay or merely unwilling to do so. It may be, because his support obligations were accruing on a monthly basis, that a proper inquiry would produce varying results, i.e., that at times his non-payment was in wilful disregard of his obligation and at other times, due to circumstances beyond his control, he lacked the ability to pay his monthly obligation. These are matters properly reserved for determination by the chancellor at a hearing held on remand in accordance with the terms of this opinion. We begin our consideration with an observation. This Court concludes that the chancellor was in error in his terminology concerning the nature of his contempt adjudication. The chancellor adjudicated Floyd to be in "contumacious criminal contempt," yet proceeded to impose sanctions that are considered civil contempt sanctions. This confusion between the two concepts appears to be widespread. There seems to be a common misconception that the line dividing civil contempt from criminal contempt is drawn based upon considerations of the wilfulness or maliciousness with which the alleged contemnor disregards his obligation. Under that concept, at some undefined (and essentially undefinable) point along a continuum, a party's "civil contempt" becomes so egregious that it rises to a "criminal" disregard for his obligations to the court and thus transforms itself into "criminal contempt." There is no such concept recognized in the law. A person who knowingly and wilfully disobeys a court order by which he is legally bound is in contempt of court. The issue of whether the contempt will be treated as civil or criminal depends, not on the necessity to quantify the party's disdain for the

court's order, but rather on how the court proposes to deal with the alleged contemnor. Thus, it is the nature of the proceeding that controls the terminology properly to be applied to the contempt -whether "civil" or "criminal" -- and not some subjective analysis of how obstinate the contemnor's behavior is deemed to be. Civil contempt proceedings are designed, not to punish the contemnor for past transgressions, but to coerce the intransigent party to carry out the court's order. See Newell v. Hinton, 556 So. 2d 1037, 1044 (Miss. 1990). Included among the coercive remedies available to the court in a civil contempt proceeding is the ability to confine the contemnor until such time as he complies with the court's order. It has been said that in such case, the contemnor "carries the keys to his prison door in his own pocket," since his ability to perform is within his control. He may purge himself of his contempt by performing his obligation and thereby obtain his release from confinement. See Gompers v. Buck's Stove and Range Co., 221 U.S. 418, 442 (1911); see also Newell, 556 So. 2d at 1044. On the other hand, there may be acts of contempt that the court deems worthy of punishment whether or not they are subsequently performed in the face of the court's coercive power. In such a proceeding, the contemnor is exposed to a confinement intended to punish him for his prior act of disobedience rather than to compel some future action. The contemnor is sentenced to a fixed term of imprisonment which he must serve without regard to whether he is now prepared to perform, or has already performed in a belated manner. This is a criminal contempt proceeding. See Newell, 556 So. 2d at 1045; see also Miss Code Ann.

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