¶1concurring specially:
¶2Although the record presents such a confusing combination of proceedings that analysis is difficult, I agree with the conclusion reached by the majority and concur therein.
¶3In petitioner’s brief, she has stated, with respect to whether respondent has been in contempt of court, that his financial stature at the time of the contempt hearing is unimportant. Because the matter has been remanded, I deem further discussion on this issue to be desirable. The opinion correctly indicates that the order appealed is one for indirect civil contempt as distinguished from indirect criminal contempt. In People v. Marcisz (1975), 32 Ill. App. 3d 467, 334 N.E.2d 737, an opinion by Mr. Justice Stengel of the appellate court for the third district gives a full explanation of the differences between criminal and civil contempt proceedings as applied to the enforcement of orders in matrimonial proceedings. That portion of that decision of importance here was affirmed in Marcisz v. Marcisz (1976), 65 Ill. 2d 206, 357 N.E.2d 477.
¶4As explained in People v. Marcisz, if the purpose of the proceeding is to coerce the respondent into making payments he should have made, the proceeding is civil in nature and any order for the incarceration of the respondent must contain a purge provision with which the respondent can comply. The respondent’s present financial situation is thus material at a hearing if such an order is requested. On the other hand, if the proceeding is (1) to punish the respondent for his prior contemptuous conduct in wilfully failing to make the payments, and (2) to uphold the court’s authority, the respondent’s present financial situation is immaterial. However, such a proceeding is criminal in nature and must be conducted in the manner explained in People v. Marcisz. Because of the criminal nature of the proceedings, the burden of proof would apparently not shift to the respondent at any time. For this reason, the safer practice would be to initiate such a proceeding by a petition to hold the respondent in contempt rather than a petition for a rule against him to show cause why he would not be held in contempt.