Dunagan v. Commonwealth

GRAVES, Justice. The Bullitt Circuit Court entered an order dismissing an indictment against Mark Dunagan for flagrant non-support, KRS 530.050, on double jeopardy grounds. The Court of Appeals vacated the circuit court’s order and remanded for trial. We granted discretionary review and affirm the Court of Appeals. While the Court of Appeals focused on the nature of the contempt proceeding, namely whether it was civil or criminal, we are of the opinion that the decision turns more on whether double jeopardy principles prevent prosecution for flagrant nonsupport after a civil court has revoked a conditionally discharged sentence and imposed jail confinement for contempt for failing to pay child support. In a 1987 dissolution action in Jefferson Circuit Court, Dunagan was ordered to pay $65 per week child support. In 1994, a Bullitt County grand jury indicted Duna-gan for flagrant non-support. According to figures presented by his former wife, Dunagan was over $10,000 delinquent in child support. In the spring of 1996, with the Bullitt County indictment still pending, the Jefferson Circuit Court found Dunagan in contempt for failing to pay child support as ordered by that court. Dunagan received a sentence of ninety (90) days in jail, discharged on the condition that he pay the court-ordered child support and make payments on the arrearage. When Dunagan failed to make the weekly payments, the court ordered him to serve 30 days of the 90 day sentence, probating the remaining 60 days on the condition that he comply with the payment order. In September 1996, the Bullitt Circuit Court dismissed the 1994 Bullitt County indictment on Dunagan’s motion, concluding that prosecuting him for flagrant nonsupport after the Jefferson Circuit Court had held him in contempt for failure to pay child support for the same time period would constitute double jeopardy. The Court of Appeals disagreed, relying primarily on its previous decision in Commonwealth ex rel. Bailey v. Bailey, Ky. App., 970 S.W.2d 818 (1998), which held that both a flagrant non-support prosecution and a civil contempt proceeding may lie for the same failure to pay support so long as the purpose of the civil action is coercive rather than punitive. The Bailey court applied the distinction between civil and criminal contempt as described in Commonwealth v. Burge, Ky., 947 S.W.2d 805 (1996). The power to punish for contempt is an essential and inherent attribute of judicial authority. Young v. Knight, Ky., 329 S.W.2d 195 (1959). In this case, the indictment and the contempt citation addressed the same failure to pay. However, the contempt citation was for failing [930] to perform an act ordered by the Court to enforce an individual’s rights, while the indictment was for an offense against society as a whole. One issue is whether the Jefferson Circuit Court’s partial revocation of a conditionally discharged sentence for Dunagan’s contempt is properly characterized as having a “coercive” or “punitive” purpose. Dunagan contends that the court’s actions — conditionally sentencing him to 90 days in jail, and later requiring him to serve 30 of those days — constituted punishment rather than coercion. The first contempt proceeding was clearly civil in nature since the sentence was discharged conditioned upon Dunagan’s compliance with the payment order. While the second contempt proceeding may be characterized as criminal in nature, in that the circuit court partially revoked the conditional discharge and ordered Dunagan to serve 30 days of the 90 day sentence, Dunagan could have avoided any period of confinement by complying with the court’s payment order. Notwithstanding, a criminal prosecution for flagrant non-support following an incarceration for civil contempt is not double jeopardy. The civil contempt proceeding did not place Dunagan in jeopardy but rather was in response to civil contempt, designed to compel compliance with the court’s previous orders. The elements of the contempt charge are not the same as the charge of flagrant non-support. Duna-gan was indicted for flagrant non-support because of his persistent failure to provide support which resulted in: (1) an arrear-age of more than $1,000; and (2) six consecutive months without payment. KRS 530.050. On the other hand, Dunagan was in contempt of the Jefferson Circuit Court’s order as soon as he failed to comply with the terms of such. The finding of contempt in this case was not dependent upon the elements of KRS 530.050. We affirm the holding in Bailey, supra, that a person convicted of flagrant non-support may also be subjected to civil action — even though both the criminal and the civil actions are based upon the same failure to pay support. The test is not only whether the purpose of loss of liberty in the civil action is coercive rather than punitive, but also whether the offense of flagrant non-support requires proof of facts which contempt does not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). We find that it does and, as such, hold that no double jeopardy violation results. The decision of the Court of Appeals is affirmed and this matter is remanded to the Bullitt Circuit Court for entry of appropriate orders in conformance with this opinion. LAMBERT, C.J., COOPER, GRAVES, and KELLER, J.J., concur. WINTERSHEIMER, J„ dissents in a separate opinion in which JOHNSTONE, and STUMBO, J.J., join.