Civil Contempt for Refusing to Testify
The line of civil contempt cases in which persons have been incarcerated for refusal to testify before grand juries and other investigative bodies, regardless of whether the persons were eventually released by the reviewing court, see, e.g., Catena v. Seidl, 68 N.J. 224, 228-29, 343 A.2d 744 (1975), or remained incarcerated, see, In re Zicarelli, 55 N.J. 249, 271-72, 261 A.2d 129 (1979), aff'd, 406 U.S. 472, 92 S. Ct. 1670, 32 L. Ed. 2d 234 (1972);
In re Acceturo, 242 N.J. Super. 281, 284-86, 576 A.2d 900 (App.Div.), certif. denied, 127 N.J. 324, 604 A.2d 599 (1990); In re Manna, 124 N.J. Super. 428, 438-39, 307 A.2d 619 (App.Div.) , certif. denied, 64 N.J. 158, 313 A.2d 218 (1973) - have one significant characteristic distinguishing them from cases like this one and Marshall.
In the instances where only testimony was required, the adversary was the State and the opposing interest to be vindicated was that of the public's.
The courts could more easily determine that the public interest would no longer be served by continued incarceration than we or the trial court can decide for the plaintiff in this matter that her interests no longer require defendant's compliance with the terms of the underlying order. Cf. Morris v. Morris, 263 N.J. Super. 237, 244, 622 A.2d 909 (App.Div.1993) (balancing, in the context of an incarceration for failure to pay, the right of the obligee to enforce an alimony agreement incorporated into a judgment of divorce against the obliger's ability to pay); Lathrop v. Lathrop, 57 N.J. Super. 532, 536-40, 155 A.2d 106 (App.Div.1959) (discussing the Chancery Division's flexibility in insuring that parties adhere to a visitation order).
As we have opined in similar contexts:
In determining whether incarceration is punitive rather than coercive, a court must bear in mind a party's willful behavior. Acceturo, supra, 242 N.J. Super. at 288, 576 A.2d 900.
"It is to counter such willful conduct that courts have inherent power to incarcerate to enforce compliance with their lawful orders." Ibid. (citing Spallone v. United States, 493 U.S. 265, 274-75, 110 S. Ct. 625, 631-32, 107 L. Ed. 2d 644, 655 (1990)). the power would come to nothing if a defiant judgment debtor were able to secure his release by boldly and continuously asserting that he will never discharge his judgment-based obligations notwithstanding a finding that he has the capacity to do so. See ibid.Marshall, supra, 327 N.J. Super. at 528, 744 A.2d 209.
Civil contempt is employed as a coercive sanction to compel the witness to do what the law made it his duty to do. Penfield Co. v. S.E.C., 330 U.S. 585, 590, 67 S. Ct. 918, 921, 91 L. Ed. 1117, 1123 (1947). Civil contempt is designed to provide a litigant with a remedy against his opponent's refusal to do what he ought to do. In re Manna, supra, 124 N.J. Super. at 438, 307 A.2d 619.
In every sense of the term, as the trial court has found, this defendant is a "resistive suitor". See Federbush v. Federbush, 5 N.J. Super. 107, 112, 68 A.2d 473 (App.Div.1949) ("Incarceration . . . is part of equitable process to enforce judgment, but it is available only against a resistive suitor capable of meeting the judgment.
His ability to satisfy the judgment is his means of freedom."); see also Sgambati v. Sgambati, 242 N.J. Super. 688, 694, 577 A.2d 1328 (Ch.Div.1990). the trial court has found that defendant "possessed the . . . means but not the willingness to meet the order." Biddle v. Biddle, 150 N.J. Super. 185, 191, 375 A.2d 285 (Ch.Div.1977); see also Busch v. Busch, 91 N.J. Super. 281, 285, 219 A.2d 899 (Ch.Div.1966).
Because that ultimate determination is reasonably based on findings supported by substantial evidence in the record, we may not and will not reject it. See Cesare, supra, 154 N.J. at 411-13, 713 A.2d 390; Pascale v. Pascale, 113 N.J. 20, 33, 549 A.2d 782 (1988); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84, 323 A.2d 495 (1974).