5.6Failure to Pay Money Judgment

A.Statutory Authority

“The supreme court, circuit court, and all other courts of record, have power to punish by fine or imprisonment,^[1] or both, persons guilty of any neglect or violation of duty or misconduct in all of the following cases:

* * *

(e) Parties to actions, attorneys, counselors, and all other persons for the nonpayment of any sum of money which the court has ordered to be paid.” MCL 600.1701(e).

B.Caselaw Examples of Using Contempt Proceedings to Enforce Money Judgments

1.Specific Fund or Article

Caselaw has permitted an order for transfer of a specific fund or article to be enforced by contempt proceedings. Carnahan v Carnahan, 143 Mich 390 (1906); American Oil Co v Suhonen, 71 Mich App 736 (1976).

In Carnahan, 143 Mich at 396-397, a woman was ordered to transfer a specific fund she maintained in a Canadian bank to her former husband. A finding of contempt for her refusal to do so was affirmed by the Michigan Supreme Court, which noted:

“This is not a decree for the payment of money in the ordinary sense. It is not subject to the exemption law. The decree requires delivery of the specific thing—i.e., the fund—in contradistinction to the payment of a debt, and a writ of execution is not appropriate in such a case.” Id. at 397.

In Suhonen, 71 Mich App at 740-741, the Court relied on Carnahan in affirming the trial court’s contempt citation, where an oil company salesman failed to pay to the company $3,300 in an account subject to his control as directed by the trial judge.

A contempt citation against the plaintiff-husband who refused to comply with the court order that he execute a deed to his former wife of income-producing real property situated in Beirut, Lebanon was affirmed. Schaheen v Schaheen, 17 Mich App 147, 148, 150 (1969). The Court affirmed the order on the basis of its conclusion that transfer of the property was covered by the “specific fund principle.” Id. at 150.

2.Duty to Pay Arising From a Fiduciary Relationship

Where the duty to pay arises from a fiduciary relationship between the parties, the use of contempt proceedings has been upheld. See Maljak v Murphy, 22 Mich App 380, 383-384, 386 (1970) (contempt citation affirmed where contemnor refused to refund an unearned attorney fee to the estate of his former client); MCR 8.122 (claims by clients against attorneys). In affirming the contempt citation, the Maljak Court emphasized that the attorney was “not an ordinary debtor” but rather someone who “bears a special responsibility” and is subject to the power of the circuit court “‘to make any order for the payment of money or for the performance of any act by the attorney which law and justice may require.’” Maljak, 22 Mich App at 385, quoting GCR 1963, 908 (now MCR 8.122).

3.Child or Spousal Support

MCL 552.631 permits an order for child support or spousal support to be enforced by use of the contempt power.² In Schoensee v Bennett, 228 Mich App 305, 317 (1998), the Court held that an award of attorney fees in a child custody action is not a money judgment and is therefore enforceable by contempt proceedings.

C.Limitation on the Use of Contempt Power to Enforce Certain Types of Money Judgments

Historically, money judgments, including the property settlement provisions of a divorce judgment, generally may not be enforced by contempt proceedings. Belting v Wayne Circuit Judge, 245 Mich 111 (1929); Thomas v Thomas, 337 Mich 510, 513-514 (1953); Guynn v Guynn, 194 Mich App 1, 2-3 (1992). This restriction on the use of contempt power is a necessary outgrowth of the constitutional prohibition against imprisonment “for debt arising out of or founded on contract, express or implied . . . .” Const 1963, art 1, § 21. See also Brownwell Corp v Ginsky, 247 Mich 201 (1929) (prohibition applies even if the court orders the money paid to the court). “[T]he process of contempt to enforce civil remedies is one of those extreme resorts which cannot be justified if there is any other adequate remedy.” Haines v Haines, 35 Mich 138, 144 (1876).

However, 2005 PA 326, effective December 27, 2005, eliminated the limiting language in MCL 600.1701(e) to allow contempt procedures in many types of collection matters. See DeGeorge v Warheit, 276 Mich App 587 (2007) (where the plaintiff and his attorney were ordered to reimburse the defendants for filing a frivolous lawsuit, and the attorney paid his personal debts before complying with the court order, the Court affirmed a finding of contempt because the attorney violated a court order and MCL 600.1701(e) permits the circuit court to punish people for failing to pay a money judgment).