dissenting.
I respectfully dissent. The effect of the trial court’s ruling was to find the appellant-respondent in contempt, order him incarcerated until the contempt was purged, and' stay the incarceration for twenty days to allow the purge. I believe that such action was within the trial court’s authority.
Green’s sole claim on appeal is that the provision in the contempt order which subjects him to arrest and imprisonment upon his failure to file a dismissal of the Alabama suit is an unlawful “penalty in anticipation of a future' contempt.” Appellant’s Brief at 1. Green argues that the proper procedure to follow when there has been a failure to comply with a contempt order which requires the doing of an affirmative act is for the trial court to bring the offender before the court a second time and then determine an appropriate remedy, if any. Green relies upon the decision of our supreme court in Thomas v. Woollen, 255 Ind. 612, 266 N.E.2d 20 (1971).
In Thomas, the trial court entered an order requiring the defendants to close a driveway that was located in violation of restrictive covenants and “to take all reasonable measures in the future as occasion arises” to prevent its re-use. 255 Ind. at 613, 266 N.E.2d at 21. Eleven days later, the trial court entered a contempt judgment, which awarded the plaintiffs damages, attorney fees, and costs and ordered the defendants to take affirmative action within a prescribed period of time. The contempt judgment provided:
[I]n the event such [affirmative] action not be completed within such period, the defendants [shall] pay an additional sum of $300.00 damages and the sheriff [shall] incarcerate the defendant James G. Thomas and confine him until he has complied.
Id. Our supreme court stated:
It is not to be anticipated that the lawful orders of the court will be violated but rather that they will be obeyed. If they are violated, however, the remedy is by way of attachment or a rule to show cause. In either event, the matter and alleged offender is again brought to the attention of the court for appropriate action. There must be some prima facie showing that the order has been violated. There may be intervening circumstances that rendered compliance impossible or circumstances surrounding the violation may have rendered it relatively innocent. These are factors that should be taken into account in determining whether or not there has been a contempt and, if so, what the penalty should be. They cannot be determined in advance. To anticipate the breach, assess *559the penalty and provide for the execution, it appears to us, amounts to the abandonment by the trial court of its responsibility in this area and should not be sanctioned.
Id., 255 Ind. at 617, 266 N.E.2d at 23 (citations omitted). The court reversed the contempt judgment “insofar as it prescribed the damages and incarceration in anticipation of a future contempt.” Id.
In Caito v. Indianapolis Produce Terminal, Inc., 162 Ind.App. 590, 320 N.E.2d 821 (1974) and Bottoms v. B & M Coal Corp., 405 N.E.2d 82 (Ind.Ct.App.1980), this court reversed contempt judgments to the extent that each judgment predetermined the penalty for noncompliance and ordered automatic incarceration. In Bottoms, the court stated:
Although there are older cases to the contrary, we believe Thomas and Caito control the issue. Fundamental notions of fairness demand an opportunity for a noncomplying party to present reasons for failure to follow the mandates of a court. The person may have been prevented from complying for a myriad of reasons we cannot even begin to imagine. In such a case a court could properly conclude no additional sanctions or coercions would be called for. In the other extreme, the only excuse for noncompliance might be pure stubborn rebellion, a situation in which relatively harsh measures, including incarceration, would be justified. In either case the noncomplying party must first be given the opportunity to explain the noncompliance. A court cannot ‘anticipate the breach, assess the penalty and provide for the execution.’ Thomas v. Woollen, supra, 255 Ind. at 617, 266 N.E.2d at 23.
Bottoms, 405 N.E.2d at 89 (footnote omitted).
Each of the foregoing eases held that the trial court erred when it prescribed the penalty, including incarceration, for a future contempt. In each case the trial court ordered the defendant to take certain affirmative action beyond the purging of a present contempt. In Thomas, the defendants were ordered to close a driveway and to “take all reasonable, measures in the future as the occasion arises” to prevent its re-use. 255 Ind. at 613, 266 N.E.2d at 21. In Caito, the defendants were ordered to remove overhead doors without damage, and in Bottoms the defendants were ordered to pay a sum of money within a specified period of time. In each case, a question remained for judicial determination: whether the defendant’s failure to perform the affirmative act would be contemptuous.
The contempt order in this ease can be distinguished from the above cases. In the present action, the penalty which the triál court imposed was for a past and continuing contempt, not one occurring in the future. If Green failed to dismiss the Alabama lawsuit as ordered, no question remained for judicial determination. The contempt had already occurred and had been adjudicated. Unlike the cases upon which Green relies, the only affirmative act required here was that the present contempt be purged. Green was to be incarcerated only if he failed to do so.
In Bottoms, we said that “Fundamental notions of fairness demand an opportunity for a non-complying party to present reasons for failure to follow the mandates of a court.” Bottoms, 405 N.E.2d at 89. There are no such concerns here. Green had the opportunity to appear and present whatever reasons he may have claimed for his failure to follow the mandates of the trial court’s liquidation order. He failed to do so. Green does not claim in this appeal that the trial court’s contempt finding was erroneous. He only claims that the trial court erred by ordering him incarcerated if he failed to purge his contempt.
Moreover, while I believe that Thomas and Caito can be distinguished from the instant case, at the same time I believe that a question should be raised whether such decisions rest upon a faulty premise which should be re-examined. The premise upon which both Thomas• and Caito rest is that the trial court’s orders anticipated future non-compliance and pre-determined the sanction for such non-compliance. In actuality, in both cases the trial court determined that a contempt had occurred, imposed a penalty for such contempt and afforded the respondent the opportunity to avoid that penalty by purging the contempt. The faulty premise yields an illogical conclusion: namely, that although a trial court can determine that a *560respondent is in contempt and incarcerate that respondent immediately until the contempt is. purged, the court cannot hold a respondent in contempt but defer incarceration to allow that purge to occur.
Requiring trial courts to hold subsequent hearings to determine whether there were justifications for the respondents’ failures to purge' an already adjudicated contempt serves no: purpose and imposes significant additional burdens on both the court and the party who initially sought the contempt sanction. It also extends contempt proceedings where1 the respondent was ordered to purge: the contempt or be incarcerated ad infinitum because a hearing would always be required to determine whether the respondent’s failure to purge the already adjudicated contempt was in itself contemptuous.
I would affirm the trial court in all respects.