Presiding Judge, concurring.
I concur by reason of stare decisis. I am constrained to follow the authority of Lepak v. McClain, and feel driven to comment.
In this case, we state that contempt will not lie when there is a finding that the party in contempt is found to have refused to pay money when he could afford to do so. The rational for this statement is Lepak v. McClain, 844 P.2d 852 (Okla.1992). Lepak and Potter v. Wilson, 609 P.2d 1278 (Okla. 980), both refuse to acknowledge that imprisonment for contempt for non-payment of a debt where the coerced party has the money to comply is not imprisonment for debt but imprisonment for willfully disobeying a court order.
As aptly noted by Justice Simms in the Lepak case, supra, at 866-867:
... The majority’s ruling fulfills the prophetic warning given by Justice Hargrave in his dissent to Potter v. Wilson, 609 P.2d 1278 (OHa.1980). In Potter, the terms of a divorce decree gave title to a jointly-owned' enterprise to the wife along with the outstanding indebtedness of the business thereby holding the husband harmless for that debt. When the wife defaulted on the debt, the husband brought a citation for contempt against the wife requesting the district court to use her contempt powers to enforce the divorce decree. The wife applied for a writ of prohibition, and a bare majority of this Court held that OHa. Const, art. 2, § 13, barred the district court from coercing “payment of a civilly adjudicated claim for money” by imprisonment.
In a dissent joined by Justices Barnes, Doolin and this writer, Justice Hargrave pointed out that the district court had the inherent power to use contempt to enforce its orders. He further stated:
“I feel the majority’s rationale is as applicable to 12 O.S.1971 § 850 as it is to the instant proceeding, which fact is an indicia of the error promulgated here ...” 609 P.2d at 1282.
Thus, in Potter, this Court took a large step toward erasing unquestioned inherent power of a court to enforce its orders by contempt. The majority in the instant case is taking another step in stripping the courts of their power.
* ⅝ * *
In addition, the majority overlooks the logic of Freeman v. Heiman, 426 F.2d 1050 (10th Cir.1970), in which the Tenth Circuit Court correctly concluded that § 850 did not violate the Okla. Const, art. 2, § 13 prohibition against imprisonment for debt.
Justice Hargrave’s dissent in Potter v. Wilson, supra then continues at p. 1282:
... as stated in the dawning days of our Republic in Respublica v. Oswald, 1 Dall. 319, 329, 1 L.Ed. 155, 160 (1788), by Chief Justice McKean, cited in part in Smith v. Speed, 11 Okl. 95, 66 P. 511 at 515 [(1901)]:
“... Some doubts were suggested, whether even a contempt of the court was punishable by attachment; but not only my brethren and myself, but likewise all the Judges of England, think, that without this power no court could possibly exist; — nay, that no contempt could indeed, be committed against us, we should be so truly contemptible. The law upon the subject is of immemorial antiquity; and there is not any period when it can be said to have ceased, or discontinued ...”.
The prophetic warning has come home to roost.