B.L., by counsel Edmund J. Rollo, appeals the order of the
Circuit Court of Monongalia County, entered on December 6,
2016, denying his fifth motion to dissolve a civil contempt
order. Respondent A.D. appears by counsel Ward D. Stone Jr.
and Joseph V. Schaeffer.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
2005, respondent obtained a judgment of $500, 000 against
petitioner as compensation for petitioner's having
infected respondent with the human immunodeficiency virus.
Though petitioner received a distribution of nearly $375, 000
from his mother's estate later that same year, he did not
disclose the receipt of that money and failed to make any
payment on the judgment. Petitioner has maintained (despite
the dearth of corroborating evidence) that he donated the
entirety of his inheritance in small, anonymous gifts to
thousands of charities. The circuit court entered an order of
civil contempt in July of 2010, upon petitioner's failure
to offer evidence supporting his assertion that he made these
charitable donations. Though petitioner was ordered to
incarceration for his contempt, the circuit court later
modified its order to provide for home confinement. The
contempt order specified that petitioner would remain
confined until he paid $363, 000 toward the
years since he was found in contempt, petitioner has sought
dissolution of the contempt order in five separate motions.
In his most recent attempt, filed in September of 2016,
petitioner asserted that the passage of time has rendered him
unable to prove the charitable donations, that the contempt
order has lost any coercive effect, and that home confinement
detrimentally affects his health. The circuit court conducted
a hearing, then denied the fifth motion to dissolve the
contempt order on December 6, 2016. The appeal of that denial
is before us on petitioner's single assignment of error:
that the circuit court abused its discretion in denying his
motion, because the contempt order is no longer
coercive. Our review is established as follows:
"In reviewing the findings of fact and conclusions of
law of a circuit court supporting a civil contempt order, we
apply a three-pronged standard of review. We review the
contempt order under an abuse of discretion standard; the
underlying factual findings are reviewed under a clearly
erroneous standard; and questions of law and statutory
interpretations are subject to a de novo review." Syl.
Pt. 1, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d
Syl. Pt. 3, State ex rel. Zirkle v. Fox, 203 W.Va.
668, 669, 510 S.E.2d 502, 503 (1998).
explained on the last occasion that petitioner came before us
seeking dissolution of his contempt order:
[c]ivil contempt proceedings are not meant to punish the
defendant but rather to benefit the [p]laintiff. Floyd v.
Watson, 163 W.Va. 65, 70, 254 S.E.2d 687, 691 (1979).
"[C]oercive measures influence the defendant to act in a
way that will ultimately benefit the moving party."
Id. at 71, 254 S.E.2d at 691. "The appropriate
sanction in a civil contempt case is an order that
incarcerates a contemner for an indefinite term and that also
specifies a reasonable manner in which the contempt may be
purged thereby securing the immediate release of the
contemner[.]" State ex rel. Robinson v.
Michael, 166 W.Va. 660, 670, 276 S.E.2d 812, 818 (1981).
However, a civil contempt order is inappropriate when the
condemner has no ability to purge himself or the contempt
order has lost its coercive effect. In re Yoho, 171
W.Va. 625, 631, 301 S.E.2d 581, 587 (1983); Shillitani v.
U.S., 384 U.S. 364, 371, 86 S.Ct. 1531, 16 L.Ed.2d 622
(1966). Petitioner bears the burden of proof in showing that
he cannot comply with the court order or that the order has
lost its coercive effect. State ex rel. Zirkle v.
Fox, 203 W.Va. 668, 673, 510 S.E.2d 502, 507 (1998);
In re Dickinson, 763 F.2d 84, 87 (2d Cir.1985);
In re Crededio, 759 F.2d 589, 590-591 (7th
Cir.1985). "Ordinarily, it is for the district judge to
determine when and if the borderline between coercion and
punishment has been reached." Soobzokov v. CBS,
Inc., 642 F.2d 28, 31 (2d Cir.1981). A district court
judge will have virtually unreviewable discretion in
determining whether the contempt order still has a coercive
effect. Simkin v. U.S., 715 F.2d 34, 38 (2d
B.L. v. A.D., No. 12-0809, 2013 WL 6604448, at *3
(W.Va. Dec. 16, 2013)(memorandum decision).
complement these earlier-stated principles with common-sense
notions explained by our sister court:
The credibility of the contemnor's avowed refusal to
comply with the order is one circumstance that a court may
consider in determining whether a sanction for civil contempt
remains coercive. ([In re] Crededio, 759
F.2d  at 593 [(7th Cir. 1985)].) There is no
requirement, however, that a court accept a contemnor's
declaration as dispositive. (In re Parrish (2d
Cir.1986), 782 F.2d 325, 327; Simkin [v. United
States], 715 F.2d  at 37 [(2nd Cir.
1983)]; United States v. Dien (2d Cir. 1979), 598
F.2d 743, 745.) "Obviously, the civil contempt power
would be completely eviscerated were a defiant witness able
to secure his release merely by boldly asserting that he will
never comply with the court's order." In re
Grand Jury Investigation, 600 F.2d  at 425
[(3rd Cir. 1979)].
. . . The unique nature of the finding required in these
circumstances has been expressed as follows:
"The determination to be made by the . . . judge is far
removed from traditional fact[-]finding. What is called for
is obviously not a retrospective determination of a
historical fact, nor even a prospective determination of a
future fact, such as the amount of medical expenses a tort
victim will incur. The determination is not even akin to
fact-finding as to a future hypothetical matter, such as the
profits a plaintiff would have made but for a defendant's
actionable wrongdoing. Instead, the . . . judge is obliged to
look into the future and gauge, not what ...