Hennepin County District Court File No. 27-FA-273-776
The opinion of the court was delivered by: Ross, Judge
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
Affirmed in part, remanded in part Ross, Judge
Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Chutich, Judge.
Christopher Marks, Sr., appeals from the district court's order finding him in constructive civil contempt of court for failing to meet his child-support obligations. Marks challenges the district court's conditional contempt order finding that he had the extant ability to meet purge conditions. Marks also challenges the district court's final contempt order confining him without finding that confinement is likely to produce compliance and finding that he had the ability to comply with release conditions. Because the record supports the district court's express finding that Marks had the ability to satisfy the purge conditions and its implicit finding that confinement is likely to produce compliance, we affirm. But we remand for a more precise determination of the conditions that Marks must meet to obtain release.
Christopher Marks and Laura Schwartz divorced in 2002 and have three minor children for whom Marks has been ordered to pay child support since 2003. He has been found in contempt of court at least six times for his repeated failure to comply with child-support orders.
In February 2008, Marks was ordered to pay $659 in monthly child support based on imputed monthly income of $3,333. In July 2011, the district court ordered Marks to pay Schwartz $500 for unreimbursed medical expenses. Marks moved to decrease his child-support obligation in August 2011 and submitted documents showing that he worked at DaVita Dialysis earning $2,335 monthly. In October 2011, the district court granted Marks's motion and reduced his monthly child-support obligation to $495, but it also ordered him to pay an extra 20% or $99 until he eliminated his child-support arrearage. The October 2011 order also directed Marks to pay the balance of the $500 owed for unreimbursed medical expenses from the July 2011 order plus $200 for unreimbursed medical expenses incurred by Schwartz in June and July 2011.
In November 2011, Schwartz moved to hold Marks in contempt of court because Marks failed to pay the unreimbursed medical expenses. At the hearing on her motion in December 2011, Schwartz submitted documents that Marks owed her $1,478.29 for unreimbursed medical expenses. She asserted that Marks also failed to pay $790.80 from a previous contempt order. Marks maintained that an ambiguity or clerical error in a previous order justified his failure to pay his portion of the unreimbursed medical expenses. He claimed that he had paid the $790.80 and stated that he intended to pay at least $800*fn1 toward his share of the unreimbursed medical expenses.
In a January 2012 order, the district court found Marks in constructive civil contempt of court for failing to comply with its previous orders. The court observed that Marks failed to pay his portion of unreimbursed medical expenses and child support on a timely basis. The district court allowed Marks to purge himself of the contempt by paying Schwartz (1) his share of unreimbursed medical expenses ($1,478.29), (2) timely child support following the court's October 2011 order ($495 plus 20% or $99) and $790.80 for arrearages, (3) $100 for the motion filing fee, and (4) his share of future unreimbursed medical and dental expenses. The district court ordered Marks to serve 180 days in jail, stayed for 90. The district court informed Marks that it would vacate the stay upon Marks's failure to meet the purge conditions only after a review hearing, commonly known as a Mahady hearing. See Mahady v. Mahady, 448 N.W.2d 888, 890 (Minn. App. 1989).
The district court held the Mahady hearing in March 2012. Marks conceded that he had not satisfied the purge conditions. He testified that he had quit his job at DaVita Dialysis and was denied unemployment benefits. Marks claimed that he had applied for several jobs, but he provided no documentary proof. Marks admitted that he had the ability to make a partial payment of his share of the unreimbursed medical expenses at the time of the December 2011 hearing but said that he later spent that money on rent and groceries because he and his current wife were both unemployed by the time the district court issued the January 2012 conditional contempt order. He testified that he had no money in the bank and that no one owed him money. Marks added that he had obtained part-time seasonal employment beginning in April and was in the process of being certified as a commission-based insurance salesman.
In an order filed in April 2012, the district court found Marks in willful constructive civil contempt of court for refusing to meet his obligations to pay child support, unreimbursed medical expenses, and other previously ordered costs. The district court decreased Marks's monthly child-support obligation from $495 to $459, plus 20% or $92 per month until the elimination of his arrearage, which totaled $16,418.42 as of March 19, 2012. The April 2012 final contempt order provided the same purge conditions as the January 2012 conditional contempt order-with the exception of the modified monthly child-support obligation-and added that Marks "shall be subject to release from confinement if he makes payment of a portion of the arrearages in the amount of $5,000 or ...