The opinion
Melvin Mayfield, Judge, concurring. I concur in the majority opinion with one reservation. The trial judge’s order holding the appellant in contempt provides:
She may purge herself yet of this contempt by paying to the clerk the sum of $6,983.51 on or before November 20, 1985. If payment has not been made in full by that time then the Sheriff of any County wherein Mrs. White may be located is ordered to incarcerate her promptly notifying the Court of such action and to hold her untilfurther order of this Court or the receipt of $18,775.00, the total sum ordered previously. (Emphasis added.)
The trouble with this provision is that, unless she pays $6,983.51 by November 20, 1985, appellant is ordered confined until she pays the total sum of $ 18,775.00, but the court makes no finding, and the record does not show, that the appellant has, or will ever have, the ability to pay either amount.
This point is specifically raised by the appellant and is not responded to by the appellee. Apparently, the exact point has not been decided in Arkansas but the law is clear. In Mays v. Mays, 193 Conn. 261 , 476 A.2d 562 (1984), the court said:
It is clear that the court could reasonably have found the defendant’s failure to make any substantial payments upon the support order for four years was inexcusable and constituted a contempt. The punishment imposed of incarceration “until such time as the defendant purges himself,” however, would exceed the court’s authority under the circumstances of this case if it is construed to mean that the defendant must remain in confinement until such time as the arrearage of $5220 is paid. Such an interpretation of the order would appear to deprive the defendant of liberty for his lifetime, since the only evidence presented on the subject indicated that his assets were minimal and that he had no available means of paying the large sum required to discharge his obligation. Nothing in the record warrants an assumption that his financial situation was likely to improve during his imprisonment.
“ [I] n civil contempt proceedings, the contemnor must be in a position to purge himself.” 17 Am. Jur. 2d, Contempt § 4; see Morelli v. Superior Court of Los Angeles County, 1 Cal. 3d 328, 332 , 82 Cal. Rptr. 375 , 461 P.2d 655 (1969). Otherwise the sanction imposed would cease to be remedial and coercive but would become wholly punitive in actual operation. The order of confinement until purged entered in this case does not specify what the defendant must do in order to purge himself, except to pay the entire $5220 arrearage, a feat which the evidence does not even remotely suggest he was able to perform. The case, therefore, must be remanded to the trial court so that the court may set forth in the order the conditions under which the defendant may be deemed to have purged himself and to be entitled to his release from imprisonment. Those conditions, of course, must be reasonably within the power of the defendant to meet. An order of confinement upon an adjudication of civil contempt must provide the contemnor with the key to his release in terms which are not impossible for him to satisfy.
In Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985), the court said:
As this Court has previously stated, the purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court. Because incarceration is utilized solely to obtain compliance, it must be used only when the contemnor has the ability to comply. This ability to comply is the contemnor’s “key to his cell.” Pugliese. The purpose of criminal contempt, on the other hand, is to punish. Criminal contempt proceedings are utilized to vindicate the authority of the court or to punish for an intentional violation of an order of the court. Andrews; Pugliese; Demetree v. State ex rel. Marsh, 89 So. 2d 498 (Fla. 1956); InreS.L.T., 180 So. 2d 374 (Fla. 2d DCA 1965). Because this type of proceeding is punitive in nature, potential criminal contemnors are entitled to the same constitutional due process protections afforded criminal defendants in more typical criminal proceedings. See Aaron v. State, 284 So. 2d 673 (Fla. 1973); see also Fla. R. Crim. P. 3.830, 3.840. We continue to adhere to the view that incarceration for civil contempt cannot be imposed absent a finding by the trial court that the contemnor has the present ability to purge himself of contempt. Without the present ability to pay from some available asset, the contemnor holds no key to the jailhouse door. (Emphasis in the original.)
See also Barrett v. Barrett, 368 A.2d 616 (Penn. 1977); Sword v. Sword, 249 N.W.2d 88 (Mich. 1976); Ex parte Cummings, 610 S.W.2d 238 (Tex. Civ. App. 1980).
It is true that the court’s order in the instant case does direct the sheriff to hold appellant until further order of the court or until the money due is paid. Therefore, I concur in affirming this case based on the assumption that the court has not, and will not, leave the appellant incarcerated for civil contempt without an order, supported by proper evidence, providing the key to her release in terms that are not impossible for her to satisfy.