                          STATE OF MICHIGAN

                            COURT OF APPEALS



KIMBERLY STURGIS,                                                    UNPUBLISHED
                                                                     October 25, 2016
               Plaintiff-Appellant,

v                                                                    No. 326163
                                                                     Wayne Circuit Court
                                                                     Family Division
URIAN STURGIS, SR.,                                                  LC No. 00-030453-DM

               Defendant-Appellee.


                                        AFTER REMAND

Before: JANSEN, P.J., and O’CONNELL and RIORDAN, JJ.

PER CURIAM.

        This case returns to us following our prior opinion and remand order, in which we
instructed the trial court to prepare a supplemental opinion further explaining its factual findings
and reasoning for its ruling holding plaintiff in contempt of court.1 The trial court has complied
with our remand instructions. We now affirm the trial court’s February 4, 2015 order holding
plaintiff in contempt and sentencing her to two days in jail.

                                  I. STANDARD OF REVIEW

        We review for an abuse of discretion a trial court’s order finding a party in contempt of
court. Arbor Farms, LLC v GeoStar Corp, 305 Mich App 374, 386; 853 NW2d 421 (2014). An
abuse of discretion occurs when the trial court chooses an outcome outside “the range of
reasonable and principled outcomes.” Id. (citation omitted). However, we review the trial
court’s underlying factual findings for clear error. Id. The clear-error standard is deferential, as
we only will conclude that a finding is clearly erroneous if we are left with a definite and firm
conviction that the trial court made a mistake. Id. at 386-387.




1
 Sturgis v Sturgis, unpublished opinion per curiam of the Court of Appeals, issued August 9,
2016 (Docket No. 326163).


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        Questions of law, such as the constitutional issue of whether a party was denied due
process, are reviewed de novo. In re Contempt of Henry, 282 Mich App 656, 668; 765 NW2d 44
(2009); In re Contempt of Dudzinski, 257 Mich App 96, 99; 667 NW2d 68 (2003). However,
plaintiff failed to preserve her due process claim by arguing in the trial court that her due process
rights were violated. See Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489
(1999). Unpreserved errors are reviewed for plain error. In re Henry, 282 Mich App at 666.
“To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must
have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected
substantial rights.” Id. (quotation marks and citation omitted).

                                          II. ANALYSIS

                                        A. DUE PROCESS

        Plaintiff contends that her due process rights were violated when the trial court held her
in contempt. She specifically argues that the trial court violated her right to counsel and right to
sufficient notice in order to prepare a defense. We reject plaintiff’s claims.

        Trial courts have both “inherent independent authority” and statutory authority to hold a
person in contempt. In re Contempt of Robertson, 209 Mich App 433, 436; 531 NW2d 763
(1995); see also MCL 600.1701 et seq. MCL 600.1701 provides circuit courts with the authority
to hold a party to an action in contempt. It provides, in relevant part:

               The supreme court, circuit court, and all other courts of record, have
       power to punish by fine or imprisonment, or both, persons guilty of any neglect or
       violation of duty or misconduct in all of the following cases:

                                               * * *

              (g) Parties to actions, attorneys, counselors, and all other persons for
       disobeying any lawful order, decree, or process of the court. [MCL 600.1701(g).]

        We have defined contempt of court as a “wilful act, omission or statement that tends to
impair the functioning of a court.” Arbor Farms, 305 Mich App at 387 (quotation marks and
citation omitted). The purpose of a trial court’s contempt “power is to preserve the effectiveness
and sustain the power of the courts.” Id. (citation omitted). “[A] party must obey an order
entered by a court with proper jurisdiction, even if the order is clearly incorrect, or the party must
face the risk of being held in contempt and possibly being ordered to comply with the order at a
later date.” Id. (quotation marks and citation omitted). The trial court’s “contempt power is
awesome and must be used with the utmost restraint,” meaning that the sanction imposed must
be the least that is necessary to achieve its purpose. In re Dudzinski, 257 Mich App at 109
(quotation marks and citations omitted). “The courts have the responsibility to apply the
contempt power judiciously and only when the contempt is clearly and unequivocally shown.”
Id.

       In addition, “[n]o person may be deprived of life, liberty, or property without due process
of law.” In re Henry, 282 Mich App at 669, citing US Const Am XIV, § 1; Const 1963, art 1, §
17; Hinky Dinky Supermarket, Inc v Dep’t of Community Health, 261 Mich App 604, 605-606;

                                                 -2-
683 NW2d 759 (2004). In order to determine whether plaintiff was afforded due process in this
case, we first needed to determine whether the contempt proceedings were criminal or civil in
nature, as the due process safeguards vary between criminal and civil proceedings. Porter v
Porter, 285 Mich App 450, 456; 776 NW2d 377 (2009). It is often difficult to distinguish
between the two types of contempt “because both forms of contempt might result in the
contemnor’s being imprisoned for willfully failing to comply with an order of the court.” Id.
Specifically, criminal contempt proceedings require many of the due process protections required
in a criminal trial. See id. at 456-457.

         Here, it was not immediately apparent whether the contempt proceedings were intended
to be criminal or civil in nature. Accordingly, we asked the trial court to issue a supplemental
order on remand that “(1) indicate[d] the intended purpose of the contempt proceedings (2)
clarif[ied] the factual findings and conclusions of law that supported its finding of contempt, and
(3) state[d] whether plaintiff did, in fact, serve two days in jail after the order was entered.”
Sturgis, unpub op at 3. In its supplemental order, the court explained:

       At the continuation of [the show cause] proceedings, which were completed on
       February 4, 2015, this Court found, by a preponderance of the evidence presented
       and testimony taken during the January 28, 2015 and February 4, 2015
       proceedings (as well as throughout the extensive history of this case), that
       Plaintiff had continuously exhibited her non-compliance with all four (4) of this
       Court’s previous orders with respect to enrolling the minor children in mental
       health therapy sessions and securing a psychological evaluation for [her son]. As
       such, this Court found Plaintiff in civil contempt of court, sentencing her to a
       sanction of two (2) days in jail, in an effort to finally coerce her compliance with
       this Court’s voluminous record of Orders regarding the children’s mental health
       care that had gone substantially ignored by Plaintiff for nearly one and a half
       (1.5) years by the time these contempt proceedings were held.

              Plaintiff did serve her two (2) day jail sentence commencing at the
       conclusion of the proceedings held on February 4, 2015 until her release on
       February 6, 2015. [Emphasis added.]



        Likewise, our review of the record, in light of the trial court’s supplemental findings and
reasoning, confirms that the contempt proceedings at issue were, in fact, civil, as they sought to
coerce plaintiff into complying with the court’s multiple orders concerning the children’s mental
health treatment. See Porter, 285 Mich App at 455-456; DeGeorge, 276 Mich App at 591-592;
In re Contempt of Auto Club Ins Ass’n, 243 Mich App 697, 711-714; 624 NW2d 443 (2000).
Although the record clearly reflects the trial court’s justified frustration with plaintiff’s
noncompliance, it is now apparent, both from the lower court record and the trial court’s




                                                -3-
supplemental order, that the present case is not one in which the trial court was seeking to punish
plaintiff for her misconduct of disobeying the trial court’s orders. Porter, 285 Mich App at 455.2

        Next, given the fact that the contempt proceedings were civil in nature, we must
determine whether plaintiff’s due process rights were violated. To properly protect a party’s due
process rights during a civil contempt hearing, the trial court acts as the factfinder and
determines, by a preponderance of the evidence, whether contempt occurred. In re Auto Club
Ass’n, 243 Mich App at 712. This Court has also recognized, however, that proof of contempt
must be “clearly and unequivocally shown.” See, e.g., In re Dudzinski, 257 Mich App at 109; In
re Robertson, 209 Mich App at 439. In situations where “the contemptuous conduct occurs
outside the court’s direct view,” the trial court is required to hold a hearing to ascertain whether
the alleged conduct actually took place. In re Auto Club Ass’n, 243 Mich App 697 at 712-713.
The trial court is required to follow the procedures delineated in the applicable court rule, MCR
3.606, and it must ensure that “some measure of due process” is provided before it sanctions the
party who allegedly engaged in contempt. In re Auto Club, 243 Mich App at 713.

       Due process is fairly flexible, and the question of what process is due depends on the
nature of the specific proceedings, the risks at issue, and the private and governmental interests
at stake. In re Henry, 282 Mich App at 669. However, the touchstone of due process is
“fundamental fairness.” Id. This Court has held that civil contempt proceedings fulfill a party’s
due process rights as long as the party is “accorded rudimentary due process, i.e., notice and an
opportunity to present a defense.” Porter, 285 Mich App at 456-457.




2
  We note that plaintiff does not contest the trial court’s imposition of a definite sentence in this
case, even though usually “civil contempt proceedings seek compliance through the imposition
of sanctions of indefinite duration, terminable upon the contemnor’s compliance or inability to
comply.” DeGeorge, 276 Mich App at 592. Compare In re Moroun, 295 Mich App 312, 335;
814 NW2d 319 (2012) (opinion by K.F. KELLY, J.); id. at 343 (WILDER, J., concurring in part and
dissenting in part). If plaintiff intended to raise such a claim, we deem it abandoned. See River
Investment Group, LLC v Casab, 289 Mich App 353, 360; 797 NW2d 1 (2010); Houghton ex rel
Johnson v Keller, 256 Mich App 336, 339-340; 662 NW2d 854 (2003).
        Nevertheless, we find it important to note that plaintiff’s two-day sentence in this case
ended on Friday, February 6, 2015, the date on which a mental health appointment was
scheduled for the children, which both parents were supposed to attend. Consistent with the trial
court’s clarifications in its supplemental order, it appears that the definite term of incarceration in
this case was consistent with the scheduled appointment and, therefore, implicitly encompassed
the condition that would trigger plaintiff’s release from contempt. Accordingly, although the
trial court generally must ensure that confinement on the basis of civil contempt is conditional,
see In re Moroun, 295 Mich App at 336 (opinion by K.F. KELLY, J.), citing MCL 600.1715; id. at
342-343 (WILDER, J., concurring in part and dissenting in part), we conclude that reversal is not
required on that basis in this case given the timing of plaintiff’s next opportunity to comply with
the court’s orders and ensure that her children received mental health treatment.


                                                 -4-
        Plaintiff’s due process rights were not violated in this case. During the January 28, 2015
show cause hearing, the trial court notified plaintiff that it was inclined to hold her in contempt
based on her repeated noncompliance with its orders, explained that the matter was very serious,
and delineated each of the prior orders with which plaintiff had failed to comply. The trial court
also made sure to provide plaintiff with personal service of defendant’s motion to show cause,
which had initiated the contempt proceedings, and it went to great lengths to secure counsel for
plaintiff at the January 28, 2015 hearing as well as the following hearing on February 4, 2015.
Accordingly, even if we assume, without deciding, that plaintiff was entitled to counsel during
these proceedings, her claim that she was not provided with counsel is not supported by the
record.3 Likewise, her claim that she did not receive proper notice pursuant to MCL 600.1968(4)
and MCR 2.107(B)(1)(b) is unavailing.

        Further, at both show cause hearings, plaintiff was sworn under oath and provided an
opportunity to present her defense to the trial court and explain why she repeatedly failed to
comply with the trial court’s multiple orders concerning her children’s mental health treatment.
While plaintiff asserts that she was not given sufficient time to prepare for the show cause
hearings, the record reflects that she was served by mail with notice of defendant’s motion to
show cause on December 3, 2014, and that the trial court gave plaintiff from January 28, 2105—
the time at which she was personally served—to February 4, 2015, to prepare a response to the
allegations of contempt.4 Moreover, given the fact that the trial court took ample time during
both show cause hearings to hear plaintiff’s reasoning regarding why she failed to comply with
its orders for nearly a year and a half, the record belies plaintiff’s claim that she was not given a
sufficient opportunity to exonerate herself. See In re White, 327 Mich 316, 317; 41 NW2d 882
(1950).

       Thus, the record shows that plaintiff was afforded “fundamental fairness,” and that her
due process rights were protected under the circumstances of this case. See In re Henry, 282
Mich App at 669. Plaintiff has failed to establish a plain error affecting her substantial rights.

                         B. FINDING OF WILLFUL DISOBEDIENCE




3
  Plaintiff’s reliance on Mead v Batchlor, 435 Mich 480, 483; 460 NW2d 493 (1990), abrogated
by Turner v Rogers, 564 US 431, 449; 131 S Ct 2507; 180 L Ed 2d 452 (2011), is misplaced.
Mead, 435 Mich at 483, 488-506, addressed the right of an indigent person to be assisted by
counsel in contempt proceedings arising from the failure to pay child support, which is a
situation distinct from the instant case. Further, Mead was later abrogated by Turner, 564 US at
441-449. Most importantly, however, the record confirms that the trial court went to great
lengths in this case to ensure that plaintiff was assisted by appointed counsel throughout the civil
contempt proceedings. There is no indication that plaintiff’s due process rights were violated.
4
  Notably, the statute and the court rule cited by plaintiff do not discuss the length of time before
a show cause hearing that a party must be provided notice.


                                                -5-
       Plaintiff also argues that the trial court clearly erred in finding that she willfully
disobeyed the orders that required her to secure mental health treatment for her children. We
disagree.

        As an initial matter, the record does not support plaintiff’s claim that the trial court held
her in contempt specifically based on a finding that she willfully disobeyed its orders. The
court’s February 4, 2015 order finding plaintiff in contempt of court only states that she was
found in contempt for violating the court’s orders; there is no mention that the violations were
willful or deliberate. The trial court similarly stated on the record at the February 4, 2015
hearing that plaintiff was being held in contempt of court “based on the history[] of [her] non-
compliance with this [c]ourt’s orders[.]” Likewise, the trial court’s supplemental order
explaining its factual findings and reasoning does not include an express finding of willfulness.

        Moreover, “a finding of willful disobedience of a court order is not necessary for a
finding of civil contempt.” Davis v City of Detroit Fin Review Team, 296 Mich App 568, 625;
821 NW2d 896 (2012). See also In re Contempt of United Stationers Supply Co, 239 Mich App
496, 499-501; 608 NW2d 105 (2000). Accordingly, the trial court had the authority to hold
plaintiff in civil contempt solely based on the fact that she failed to comply with the court’s
orders, see Arbor Farms, 305 Mich App at 386, which appears to be what actually occurred in
this case.

        Nevertheless, to the extent that the trial court’s apparent frustration with plaintiff’s
excuses, “disingenuous explanations,” and “feigned reasons” for failing to comply with its orders
and its stated belief that “there’s some reason that [she] [does not] want these children to be
evaluated[] and have mental help” are equivalent to a finding that plaintiff willfully disobeyed its
orders, the trial court did not clearly err in so concluding.

        As the court emphasized in its supplemental order, it entered numerous orders requiring
plaintiff to take action with regard to her children’s mental health care. These orders required
plaintiff to ensure that the children were enrolled in therapy, to ensure that the children attended
therapy sessions, and to schedule a psychological evaluation for her son. Consistent with its
statements at the February 4, 2015 hearing, the court explained in its supplemental order that
“[a]t every single one of these proceedings, [p]laintiff consistently presented this Court with
disingenuous explanations as to why she had not yet complied with this Court’s numerous orders
concerning the mental health care of the parties’ children. This Court simply did not believe
Plaintiff mother’s testimony or her numerous excuses for not complying with this Court’s
orders.” A review of the show cause hearing transcripts, as well as the prior review hearing
transcripts, reveals that plaintiff presented numerous excuses and explanations for why she was
not able to comply with the trial court’s orders. She repeats these explanations and excuses on
appeal, specifically asserting that she did not have the financial means to comply because of
defendant’s failure to pay child support and because of the lack of medical insurance for her son.
The trial court, which was very familiar with the parties and their circumstances, duly heard and
considered plaintiff’s assertions, ultimately concluding that plaintiff’s excuses were disingenuous
and that she had a reason for disobeying the court’s orders. The record also confirms that
between November 2012 and February 2015, the trial court had repeatedly insisted, both from
the bench and in written orders, that plaintiff’s children receive mental health treatment, and
plaintiff consistently failed to comply.

                                                -6-
        In reviewing a trial court’s factual findings for clear error, we must defer “to the trial
court’s superior ability to judge the credibility of the witnesses who appeared before it.” Ambs v
Kalamazoo Co Rd Comm’r, 255 Mich App 637, 652; 662 NW2d 424 (2003); see also MCR
2.613(C). Thus, on this record, to the extent that the trial court concluded that plaintiff had
willfully violated its orders, such a finding was not clearly erroneous. See Arbor Farms, 305
Mich App at 386-387.

                                       III. CONCLUSION

      Plaintiff has failed to demonstrate a plain error affecting her due process rights.
Likewise, she has failed to establish that the trial court’s factual findings were clearly erroneous.

       Affirmed.

                                                              /s/ Kathleen Jansen
                                                              /s/ Peter D. O'Connell
                                                              /s/ Michael J. Riordan




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