APPEAL from the Circuit Court of Will County; the Hon. THOMAS
VINSON, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Defendant, Matthew J. Marcisz, was found guilty of contempt for violating an injunction entered in a divorce proceeding in the Circuit Court of Will County and was sentenced to six months' imprisonment at the Illinois State Penal Farm. Defendant contends on appeal that his conviction should be reversed because the contempt proceedings were criminal in nature and did not conform to minimal constitutional standards required for criminal prosecutions. The People of the State of Illinois, substituted as appellee in this case, contend that the conviction should be affirmed since the contempt was civil. In addition, the State's attorney has filed a motion to withdraw on the grounds that the People are not a proper party to a civil action.
On July 16, 1973, pursuant to a decree of divorce, defendant was enjoined from interfering with his ex-wife's occupancy of the home in which she resided. Subsequently Patricia Marcisz filed a petition for a rule to show cause alleging that the defendant had violated the injunction by entering her home without her permission. At the contempt hearing, Patricia Marcisz testified that the defendant had twice entered her home. The first entry was accomplished by forcibly breaking down the door, and Patricia Marcisz had to summon the police and have defendant removed. Defendant again forcibly entered her home two days later, at which time he destroyed a television and stereo, broke the windows, and scuffled with his ex-wife before being removed by police officers. At the hearing, defendant requested and was denied the assistance of counsel and was called upon to testify under section 60 of the Civil Practice Act.
• 1 The central issue presented is the difficult question of whether the contempt was criminal or civil.
Criminal contempt consists of acts tending to lessen the dignity or impede the process of the court, and such proceedings are instituted to vindicate the authority of the court. Civil contempt ordinarily consists of failing to do something ordered to be done by a court in a civil action for the benefit of an opposing litigant, and proceedings are instituted to compel or coerce obedience to the order or decree. People ex rel. Kazubowski v. Ray, 48 Ill.2d 413, 272 N.E.2d 225 (1971); People ex rel. Chicago Bar Association v. Barasch, 21 Ill.2d 407, 173 N.E.2d 417 (1961).
This distinction is exceedingly difficult to apply, because a contemptuous act may exhibit characteristics of both types of contempt. Therefore, courts must make a careful analysis, taking into consideration the nature of the act to be punished and the nature and purpose of the punishment.
• 2, 3 Generally, civil contempt proceedings are prospective in nature and are usually instituted where a party has failed to perform an affirmative act which that party had been ordered to do for the benefit of an opposing party. In effect, a civil contempt proceeding is but a continuation of the original proceeding which resulted in the order or decree. The court seeks to compel obedience to its order or decree by punishment which the contemnor can avoid by compliance with the order or by punishment imposed until there is compliance. Criminal contempt, which usually involves a more direct disrespect of the court's authority, is instituted to punish, as opposed to coerce, a contemnor for past contumacious conduct. It has been said that civil contempt consists in refusing to do what had been ordered, whereas criminal contempt consists in doing what had been prohibited. Shillitani v. United States, 384 U.S. 364, 16 L.Ed.2d 622, 86 S.Ct. 1531 (1966).
In discussing the nature and purpose of punishment for contempt, our supreme court has said in Barasch:
"These principles, while seemingly plain and adequate, are most difficult to apply. The line of demarcation in many instances is indistinct and even imperceptible. [Citation.] A further guide may be found in the purpose of punishment. Imprisonment for criminal contempt is inflicted as a punishment for that which has been done, whereas imprisonment for civil contempt is usually coercive and * * * `he [the contemnor] carries the key of his prison in his own pocket.'" (21 Ill.2d 409, 410.)
See also 12 Ill. L.&Pr. Contempt § 103 (1955).
In difficult cases, such as the one before us, these principles are not subject to easy application. As was said before, contempt is sui generis, and may partake of the characteristics of both. Also, we note that the logic of determining whether a contemptuous act is civil or criminal, and hence what punishment is appropriate, by looking at the punishment actually imposed is open to doubt. However, since important constitutional protections attach to a criminal contemnor, the distinction must be made.
Cases following Barasch provide some illustration of these principles. In Sullivan v. Sullivan, 16 Ill. App.3d 549, 306 N.E.2d 604 (1st Dist. 1973), the defendant was imprisoned for a definite term for failure to pay alimony. The court noted that the purpose of the contempt proceeding was to coerce the defendant to pay alimony in accordance with the order in the divorce proceeding. The court then reversed the sentence as inappropriate and held that, in order to be coercive, a proper punishment should contain conditions for payment which, if satisfied, would affect the defendant's release.
However, in American Cyanamid Co. v. Rogers, 21 Ill. App.3d 152, 314 N.E.2d 679 (4th Dist. 1974), where a judgment debtor was jailed for a definite term for wilful refusal to pay the debt, the court classified the contempt as criminal. The court there noted that, although the defendant had wilfully refused to pay a few months previously, at the time of the contempt proceeding the defendant was bankrupt. Therefore, as it was impossible to coerce payment from the defendant, and as there was nothing the defendant could do to purge himself of this contempt, the contempt proceeding was obviously intended to punish the defendant for his past contumacious act.
• 4 In other cases where the proceedings and resulting punishment were found to be coercive, the contempt has been construed as civil. (County of Cook v. Lloyd A. Fry Roofing Co., 13 Ill. App.3d 244, 300 N.E.2d 830 (1st Dist. 1973) (imposition of a per diem fine in order to force the defendant to comply with court-ordered pollution standards); City of Park City v. Brosten, 24 Ill. App.3d 442, 321 N.E.2d 15 (2d Dist. 1974) (imprisonment of the ...