684 NE2D 553 - Green v. Maginn

SULLIVAN, Judge,

¶1concurring.

¶2While I thoroughly agree with the import of the dissent in that it seems an unnecessary procedural formalism to require another evi-dentiary hearing in order to incarcerate a contemptuous defendant, I must concur in the majority opinion in light of Thomas v. Woollen (1971) 255 Ind. 612, 266 N.E.2d 20. That case is binding upon us despite arguable misapplication in Bottoms v. B & M Coal Corp. (1980) Ind.App., 405 N.E.2d 82 and in Caito v. Indianapolis Produce Terminal, Inc. (1974) 162 Ind.App. 590, 320 N.E.2d 821.

¶3In this regard, I am unable to discern any meaningful difference between the “further affirmative action” ordered in Thomasand the further action ordered here, i.e. dismissal of the Alabama lawsuit.1 That the “further” act contemplated here was a simple and straightforward dismissal in order to purge Green of his already adjudicated contempt does not appear, under the Thomasholding, to permit coercive incarceration absent a new show cause order and opportunity to be heard. Such conclusion, in essence forbids a common sense trial court order which would afford a contemnor an opportunity to avoid jail by purging the contempt. Any such purge order would necessarily require an affirmative act to purge the contemptuous act. Nevertheless, the existing case law seems to .impose a new and seemingly unnecessary level of adjudication upon, such an “indulgent [tjrial [jjudge”. See Caito, supra,320 N.E.2d at 826.

¶4Conversely, the present state of Indiana law as drawn from the cited cases, would seem to encourage, if not require, immediate coercive jailing upon a determination of contempt. Clearly, in many if not most situations, the contemnor will be unable to purge *558the contempt while he is incarcerated, e.g., paying a child support arrearage. Again, for this reason, a simple purge order should be permitted even though it may require some affirmative act on the part of the respondent. See Brown v. Brown (1933) 205 Ind. 664, 187 N.E. 836; Denny v. Brady (1932) 203 Ind. 682, 182 N.E. 313. In such instances it has been stated that “the keys to the jail [are] in [the respondent’s] pocket.” Duemling v. Fort Wayne Community Concerts, Inc. (1963) 243 Ind. 521, 188 N.E.2d 274, 277.

¶5A new show cause order and evidentiary hearing should not be required unless compliance with the “affirmative act” directed by the purge order is subject to differing interpretations or has multiple components. In the latter instance a “punishment” for anticipated non-compliance would be premature. It is this type “affirmative action” to which the holding of Thomasshould be restricted. It should not, as was done in Caitoand in Bottoms, be applied to the doing of a uncomplicated, unambiguous, act which would purge an already adjudicated contempt.2

¶6Perhaps our Supreme Court will revisit its holding in Thomas, or at least clarify and delineate its application to contempt purge orders. Until such time, however, I am constrained to apply it to the facts before us. For this reason I concur.

¶7. The court in Thomasfound significance in the fact that the contempt consisted not only of the failure to close a driveway but failure to take reasonable measures "in the future” in order to prevent the use of the driveway. In doing so, it concluded that the subsequent judgment of contempt erroneously provided for damages or incarceration if “further" affirmative action were not completed within a specified time period. However, it would seem that the "further” affirmative action contemplated by the latter order was nothing more than the doing of the acts which were not done earlier and which formed the basis for the contempt.

¶8The injunction in Thomasordered defendants "to take all reasonable measures in the future as occasion arises in order to prevent anybody from crossing the green strip [driveway] prescribed in the preceding paragraph.” ThomasRecord at 18. In the "purge” order, the defendants were ordered to "take all measures necessary to keep this east leg of their driveway closed to traffic for so long as the permanent injunction decree entered by this Court in this cause remains in full force and effect” (Thomas Record at 41) and to do so within a specified time period failing which the defendants were ordered to pay the sum of $300.00 and be committed to jail.

¶9To this extent, the order merely permitted the defendant to purge the contempt. Yet,' the Thomascourt required a new show cause order and hearing. Accordingly, the same resultáis indicated in the case before us.

¶10. If the “further affirmative action” ordered by the trial court in Thomasin its "purge" order was, in fact, different in kind or degree from merely curing the contempt, the application of Thomasin Caitoand in Bottomswould appear misplaced. On the' other hand, both the Caitoand Bottomscourts may have read the Thomasorders as do I. See footnote 1, supra. In that event, it is understandable why the two Appellate Court decisions felt bound by Thomas.