dissenting:
Judge Ferren’s opinion goes far to prove that the conclusion you reach depends on the issue you frame. His preoccupation with the due process rights of Dr. Elizabeth Morgan, unalloyed with any consideration of the other vital issues controlling this appeal, is myopic, and under the circumstances of this case, uncaring. It has prompted a majority decision1 that restricts the discretion of the Superior Court in a most vital arena, and poses a conflict with the rationale, not only of the judicial precedents the majority purports to rely upon, but also of our own prior decisions in this case.
I.
This case is about a missing child. It arose as a result of a custody action which is still pending in the Family Division. Dr. Morgan is in jail because she has hidden the child and because she refuses to reveal her whereabouts to the Family Division. At stake is the child’s welfare, the court’s power to effect orders based upon impartial findings, and the capacity of an interested party — whether right or wrong, accuser or accused — to circumvent the findings of a legally instituted, neutral arbiter and effect her will upon an innocent third party. Judge Ferren’s position, therefore, that the child’s best interests are irrelevant as against a constitutional claim of due process, is untenable.
The welfare of this missing child has been the primary concern of the Family Division since 1983, when the little girl was only nine months old, and the record before us reveals evidence justifying the grave concern voiced by the trial court for the current welfare of the child. In November 1984, Judge Bruce Mencher, in an exhaustive opinion evaluating the respective traits and personalities of the parents, as well as both sets of grandparents, granted custody rights to the mother and liberal visitation rights to the father (and sealed the record in “the best interest of the child”). The mother was described as having a deep and abiding love for the child and as having provided a nurturing environment. The court was impressed with the father’s love and concern for his child, but found credible testimony that his life had been marred by a tenor of instability because of his many marital problems. Judge Mencher *15took special pains to point out the contrast between the sets of grandparents — on the maternal side, restrained and emotionally sedate, “perhaps as a result of their emphasis on the importance of the more highly intellectual aspects of life,” and on the paternal side, “warm, outgoing and openly emotional.” Judge Mencher added that the child should have the opportunity to experience this beneficial contrast of personalities, that Dr. Morgan’s one failure to act in the best interests of the child had been her intolerance toward visitation rights and her unwillingness to allow the father any significant role in bringing up the child, and, in a sage prediction, that “if such a pattern were to continue it could only result in detriment to the child.”
In the months that preceded this ruling, and before the case was assigned by special order to Judge Dixon, at least eleven other Superior Court judges had handled numerous motions and issued orders with respect to visitation rights. One judge granted a motion for contempt against Dr. Morgan for refusing to comply with a consent order. As noted, certain aspects of the case are still pending in the trial court.
In the same vein, this court, faced with an avalanche of requests from Dr. Morgan for appellate relief (fifteen appeals and forty-nine motions, prompting, to date, the entry of sixty-seven orders and three written opinions), has kept the welfare of the child uppermost in its deliberations. We suggested the appointment of a guardian for the child, and as may have been expected, we reviewed with the strictest scrutiny every request for a stay of the monitored visitations ordered by the trial court, sometimes suggesting additional provisions to assure that under no circumstances would there be an opportunity for the abuse by then alleged by Dr. Morgan. After we had approved the trial court’s rejection of Dr. Morgan’s contention that Dr. Foretich had abused the child, Morgan II, supra note 1, 528 A.2d at 429, we refused to grant an emergency request for a stay of the two-week unsupervised visit ordered by the trial court, Morgan v. Foretich, 546 A.2d 407, 410-11 (D.C.1988) (Morgan III). Our court, sitting en banc, refused to stay the order, and the Supreme Court of the United States denied a stay, Morgan v. Foretich, 483 U.S. 1053, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987).
II.
This is not the first time that Dr. Morgan has raised the specter of a constitutional violation to seek her release in spite of her defiance of court orders. In attacking her initial contempt commitment she urged that she had been denied a due process right to a public hearing. This court rejected her argument and held in effect that the best interests and the privacy rights of the child outweighed Dr. Morgan’s right to a public hearing in a civil contempt proceeding in the Family Division. See Morgan v. Foretich, 521 A.2d 248, 253 (D.C.1987) (Morgan I); Morgan II, supra note 1, 528 A.2d at 426-27. If the best interests of the child may be balanced against Dr. Morgan’s claimed right to an open hearing before being committed, it stands to reason that the child’s best interests may be weighed against Dr. Morgan’s claimed right to be released on the ground that she can never be coerced to produce the child she has hidden. Cf. Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 902-03, 47 L.Ed.2d 18 (1976) (noting that due process “is not a technical conception with a fixed content unrelated to time, place and circumstances” (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961)), and holding that, in determining what process is due, the government’s interest must be weighed against private liberty or property interests and the risk of erroneous decisions); Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (balancing, in a procedure to terminate the petitioner’s parental rights, the state’s interest in the welfare of the child against the parent’s interests in maintaining the care and custody of her children). Significantly, the first sentence of our opinion in Morgan III reads, “The formal parties to this appeal are the divorced parents of a daughter, H, the ultimate real party in interest.” 546 A.2d at 408.
*16Judge Ferren attempts to use the civil contempt cases, involving recalcitrant immunized witnesses who have refused to testify in criminal trials or before grand juries in the government’s fight against organized crime, to support his conclusion not only that Dr. Morgan must be released, but that the welfare of the child in this custody dispute — the very interest underlying the commitment — cannot be considered in assessing Dr. Morgan’s right to release. I suggest that, to the contrary, these cases require affirmance of the trial court’s order.
By way of background, I briefly allude to case development that renders questionable Dr. Morgan’s reliance on her continued recalcitrance to secure her release. Embedded in Anglo-American law is the inherent power of the judiciary to coerce obedience-to its orders by summarily holding a recalcitrant person — such as an immunized witness who refuses to testify at a grand jury proceeding or at trial — in civil contempt and thus imprisoning him until he complies. In re Grand Jury Investigation (Braun), 600 F.2d 420, 422 (3d Cir.1979).
The Supreme Court has characterized such conditional commitment orders, although they grow out of criminal proceedings, as civil in nature, and therefore valid orders of imprisonment for which indictment and jury trial are not constitutionally required. Shillitani v. United States, 384 U.S. 364, 368-71, 86 S.Ct. 1531, 1534-36, 16 L.Ed.2d 622 (1966). The rationale for coercive imprisonment without the safeguards constitutionally afforded criminal defendants is that contemnors hold “the keys of their prison in their own pockets.” Id. at 368, 86 S.Ct. at 1534 (quoting In re Nevitt, 117 F. 448, 461 (8th Cir.1902)); King v. Department of Social and Health Services, 110 Wash.2d 793, 800, 756 P.2d 1303, 1308 (1988) (en banc).2 Of course, since it is impossible to succeed in coercing what is beyond a person’s power to perform, the rationale for conditional imprisonment vanishes when the contemnor no longer has the ability to comply with the court’s order and thus use the key. See Shillitani, supra, 384 U.S. at 371, 86 S.Ct. at 1536 (citing Maggio v. Zeitz, 333 U.S. 56, 76, 68 S.Ct. 401, 411, 92 L.Ed. 476 (1948)); In re Grand Jury Investigation, supra, 600 F.2d at 423. In recent years, courts faced with situations involving indeterminate periods of confinement for civil contempt have reasoned that once that confinement has lost its coercive force, it becomes punitive and requires release. See, e.g., Lambert v. Montana, 545 F.2d 87 (9th Cir.1976). To foreclose such indeterminate confinements and to draw the line between what is coercive and what is punishment, a federal statute exists. See 28 U.S.C. § 1826 (1989 Supp.); In re Grand Jury Investigation, supra, 600 F.2d at 425.
The majority can draw no comfort from reliance on- these “immunized witness” cases.- In Morgan II, supra note 1, 528 A.2d at 428, we held that “justification is established only upon a showing of inability to perform or substantial performance,” and only last year, we reiterated this principle in D.D. v. M.T., supra note 1, 550 A.2d at 44 (citing Maggio v. Zeitz, supra, 333 U.S. at 76, 68 S.Ct. at 411; Smith v. Smith, 427 A.2d 928, 932 (D.C.1980)). Moreover, the criminal witness cases cannot be used to support Judge Ferren’s insistence that only factors bearing on the status of the contemnor (i.e., age, health, length of incarceration, reasons given by the contemnor for refusing to obey, etc.), to the exclusion of the very reasons for the confinement, can be relevant to the continued confinement of Dr. Morgan. The relevancy of the welfare of a third party in these cases has not surfaced because, factually, theré has been no third party.
In fact, the controlling case — the only civil contempt case bearing a factual resemblance to the instant case — the only *17case involving the refusal of a contemnor to produce a child — is King, supra. Judge Ferren dismisses this case in a footnote, with the conclusory comment, “We must disagree.” In that case, the Supreme Court of the State of Washington reversed the decision of a lower appellate court terminating the confinement of a father who had refused to reveal the whereabouts of an allegedly abused son, and ordered re-commitment. The court, relying on the Second Circuit’s decision in Simkin v. United States, 715 F.2d 34 (2d Cir.1983) (an immunized witness case), held that given the express legislative concern for the physical and emotional well-being of children, the trial court’s power to coerce compliance was crucial.3 King, supra, 110 Wash.2d at 800, 756 P.2d at 1308. Because the mere passage of time does not transform coercive contempt into punitive contempt, id., 110 Wash.2d at 802, 756 P.2d at 1309, the trial court could use its broad civil contempt powers to coerce compliance with its order to bring to the court a child who was allegedly the victim of abuse, and could therefore incarcerate the responsible adult until he or she complied with the order. Id., 110 Wash.2d at 800, 756 P.2d at 1308.
The approach of King, says Judge Fer-ren, cannot be countenanced because this imprisonment is for all practical purposes “punitive.” Judge Ferren’s conclusion is wrong. It is right only insofar as it tells us that for due process reasons Dr. Morgan’s continued confinement must bear a reasonable relationship to the purpose for which she was committed. Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972); In re Grand Jury Investigation, supra, 600 F.2d at 424; Lambert v. United States, 545 F.2d 87, 89 (9th Cir.1976). It is wrong, however, when it tells us that there is no such reasonable relationship. Dr. Morgan’s continued confinement bears more than a reasonable relationship to the safety of a child whom she has caused to be removed from the jurisdiction of a protecting court. In the circumstances of this case, the custody action cannot be separated from the contempt.4 “[A] civil contempt proceeding is part of the original cause.” D.D. v. M.T., supra note 1, 550 A.2d at 44. Even if Dr. Morgan therefore had a right to rely upon a due process claim, here, powerful countervailing interests in the safety of the child would defeat that claim in the absence of statutory compulsion.
The trial court found that Dr. Morgan had not proved that Dr. Foretich sexually abused the child. This was the holding that this court affirmed in Morgan II, supra note 1, 528 A.2d at 428, and Morgan III, supra, 546 A.2d at 409, and with respect to which the Supreme Court of the United States has denied certiorari, Morgan v. Foretich, — U.S. -, 109 S.Ct. 790, 102 L.Ed.2d 781 (1989). The majority’s release of Dr. Morgan at this stage of the proceedings, therefore, presents a frightening prospect for child custody disputes. Those who have taken sides in this controversy would do well to consider that a child abuser could as easily avail himself or herself of the majority’s holding as an accuser could. Cf. In re Maurice M., 314 Md. 391, 550 A.2d 1135 (1988) (mother suspected of child abuse held in contempt for *18refusing, on self-incrimination grounds, to produce child), cert, granted in part sub nom. Baltimore City Department of Social Services v. Bouknight, — U.S. -, 109 S.Ct. 1636, 104 L.Ed.2d 152 (1989); see also King, supra (father suspected of abuse held in contempt for refusing to produce child).
This is why the power to compel compliance, and the balancing of competing interests, is so crucial to custody proceedings. A missing child in these proceedings divests a protecting court of the power to act. In the tumult of charges and controversy in this case, we have no way of knowing in what way or by whom the child may have been psychologically (or otherwise) abused. We only know that the trial court rejected Dr. Morgan’s allegations. While the civil contempt aspect of the case may have evolved from a contest between two parties, it is also a third party, a child, who is aggrieved. This was the import of Judge Steadman’s wise citation of a Kikuyu proverb in our prior decision: “When elephants fight it is the grass that suffers.” Morgan III, supra, 546 A.2d at 413.
III.
The majority is right to the extent that there is some authority in the “immunized witness” contempt cases, that release should follow a finding that the contemnor cannot be coerced; it is wrong — unquestionably wrong — in concluding that we can disturb the finding of the trial court in this case that there is a “realistic possibility” or “substantial likelihood” that continued confinement will accomplish its coercive purpose. See Simkin, supra, 715 F.2d at 37.
The majority’s reasoning is nothing more than a thinly disguised attempt to hold that this appellate court can find as a matter of law that Dr. Morgan cannot be coerced into obeying the trial court’s order. Basic legal principles, and of course common sense, tell us that this cannot be the case. Any question as to the conduct of a human being is a factual one — a determination to be made by a factfinder on a case-by-case basis.5 In the civil contempt context, the determination as to whether continued confinement will compel obedience requires a prediction as to what a particular human being will do in the future — obviously a matter for the factfinder.6 Since a prediction, to the extent that a prediction about human behavior can be valid, is still a prediction, it is a factfinder who is in the best position to determine if there is a realistic possibility that continued confinement will coerce. A factfinder is in the best position to determine credibility. A factfinder is in the best position to determine whether a contemnor has the ability to comply with the court’s order, a fact that need not concern us here in view of Dr. Morgan’s recalcitrance — an admission that she can comply but will not. Moreover, this court cannot credit, as a matter of law, the protestation of a contemnor that he or she will never relent, nor can we determine it as a matter of fact, since this would defeat the very purpose of the justification for coercive imprisonment. Judge Dixon, after a hearing, made findings of fact. The majority’s *19conclusions about the facts of this case are not the words of a factfinder.
It is for these reasons that appellate courts, without exception, have held that it is the trial court that has the discretion to make the determination as to whether continued confinement will accomplish its purpose and that the trial court’s decision is “virtually unreviewable.” Thus, the Second Circuit noted in Simkin, supra, 715 F.2d at 38:
A district judge’s determination whether a civil contempt sanction has lost any realistic possibility of having a coercive effect is inevitably far more speculative than his resolution of traditional factual issues. Since a prediction is involved and since that prediction concerns such uncertain matters as the likely effect of continued confinement upon a particular individual, we think a district judge has virtually unreviewable discretion both as to the procedure he will use to reach his conclusion, and as to the merits of his conclusion. [Citing Soobzokov v. CBS, Inc., 642 F.2d 28, 31 (2d Cir.1981); In re Grand Jury Investigation, supra.] ... We have located no decision of a court of appeals requiring a district court to take testimony from a contemnor on the issue of the utility of continued confinement or rejecting a district court’s conclusion that such confinement is warranted.
******
There must be an individualized decision. (Footnotes omitted; emphasis supplied.) See also Sanchez v. United States, 725 F.2d 29, 31 (2d Cir.1984) (explaining Sim-kin from burden of proof standpoint, and noting “the District Judge must determine, as best he can, whether the contemnor has persuaded him that continued confinement holds no realistic possibility of producing a willingness to testify.”). See In re Parrish, 782 F.2d 325, 328 (2d Cir.1986) (“[I]t is whether the district judge believes, based on all the circumstances pertinent to that contemnor, that no such realistic possibility exists.” (emphasis in original)); In re Dickinson, 763 F.2d 84, 89 (2nd Cir.1985) (citing Simkin, “a district judge has virtually unreviewable discretion both as to the procedure he will use to reach his conclusion, and as to the merits of his conclusion”); Soobzokov v. CBS, Inc., supra, 642 F.2d at 31.
The majority, disregarding the degree of deference it is required to accord the trial court’s finding, follows a most distressing approach.7 It rejects an abuse of discretion standard of appellate review, and although it pronounces a clearly erroneous standard, it nonetheless proceeds to substitute its judgment for that of the trier-of-fact. The majority’s abstract discussion of the reasons why Judge Dixon’s findings of fact are clearly erroneous speaks for itself in unpersuasive detail. Yet it becomes a vehicle for ordering Dr. Morgan’s release. Judge Ferren and Judge Belson have not heard Dr. Morgan testify.
Credibility is of critical significance in this case. Dr. Morgan has justifiably or unjustifiably wrapped herself in the mantle of motherhood. It would be well for all of us, litigants and judges alike, to recall the wisdom of King Solomon as reported in 1 Kings 3:16-28. There Solomon hears a dispute between two women, each of whom has borne a child. One child has lived, the other has died. Each woman claims the living child as her own. When Solomon sends for a sword and proposes to divide the living child between them, one woman accedes and the other opts to relinquish the child, prompting Solomon to decide the identity of the real mother. Lest this account be taken as support for Dr. Morgan’s position, I hasten to say that it is Dr. Morgan who has, from the beginning, fought to unseal the record before us to publicly air lurid details of evidence she has submitted which are relevant to, but not determinative of, her right to curtail visitation, and which might run the risk of irrevocably harming her daughter. She has *20made her daughter a fugitive from the law. A reasonable factfinder could draw the inference that she is willing to risk harm to her daughter to vindicate in a public forum her claim that the man with whom she once shared a mutual obsession has abused his daughter and that the judicial system (which she has exhaustively used) has failed to protect the daughter. Even today, in this proceeding, while proclaiming that she will never produce the child, she is demanding the protection of this court for herself and strenuously arguing that the best interests of the child are not at issue.8
I do not know what Judge Ferren means by suggesting that vindication of the trial court’s authority should not be our concern.9 I join the majority in commending Judge Dixon’s diligence and fortitude. I would only add that one cannot read the transcripts and rulings in this case without concluding that the.trial court.has fulfilled, in the finest tradition, the judicial oath “that I will administer justice — without respect to persons.”
I 'would leave with the trial judge— where it belongs — the discretion to determine facts underlying this contemnor’s demand for release. I would hold that at this point in time, there has been no showing of abuse' of discretion.10
Before ROGERS, Chief Judge, MACK, NEWMAN, FERREN, BELSON, TERRY, STEADMAN, SCHWELB,* and FARRELL,† Associate Judges.ORDER
PER CURIAM.
It appearing that a majority of the judges of this court has voted, sua sponte, to rehear this ease en banc, it is
ORDERED that the opinions and judg-^ ment filed this date are hereby vacated. It is'
FURTHER ORDERED that the Clerk shall schedule this matter for consideration before the court sitting en banc as soon as' the calendar permits. Counsel are hereby directed to provide ten copies of the briefs heretofore filed with the Clerk within 10 days from the date of this order.
Before ROGERS, Chief Judge, and MACK, NEWMAN, FERREN, BELSON, TERRY and STEADMAN, Associate Judges.
JUDGMENT
On consideration of the emergency motion of Dr. Morgan for immediate release *21from incarceration pursuant to the District of Columbia Civil Contempt Imprisonment Limitation Act of 1989 (the Act), Pub.L. No. 101- (September 23, 1989), and the opposition thereto by Dr. Foretich contesting the constitutionality of the Act, and it appearing that Dr. Morgan is incarcerated by virtue of an order of the Superior Court of the District of Columbia issued in a proceeding for custody of a minor child conducted in the Family Division of the Superior Court, and that the enactment of the Act requires reconsideration of that order, this appeal having been taken from an order of the Superior Court denying the motion of Dr. Morgan for relief from an order of civil contempt and from an order of that court refusing to issue a writ of habeas corpus, it is
ORDERED and ADJUDGED that the-ease is remanded to the Superior Court for entry of an order forthwith releasing Dr. Morgan from custody pursuant to the Act, such release being without prejudice to any proceedings which the trial court may conduct, following release, with respect to the constitutionality of the Act.
. Although Judge Belson says that he joins in Judge Ferren's opinion, I cannot read his statement as joining anything more than disposition — that is, that Dr. Morgan must be released simply because she will not obey a court order, a position we are not at liberty to take in view of Morgan v. Foretich, 528 A.2d 425 (D.C.1987) (Morgan II) and D.D. v. M.T., 550 A.2d 37 (D.C.1988). It is not clear to me, moreover, that he embraces Judge Ferren’s holding that a child's best interest cannot be weighed against a constitutional claim of due process, nor how he could do so in view of established law.
. Even in the context of criminal contempt, where due process concerns are more central, a summary proceeding is all that is required prior to commitment for a contempt, like that here, committed in the court’s presence. Super.Ct.Crim.R. 42; In re Hunt, 367 A.2d 155, 156 (D.C.), cert. denied, 434 U.S. 817, 98 S.Ct. 54, 54 L.Ed.2d 72 (1977). Notably, nonappearance counts as a contempt committed in the court’s presence, id.; by similar logic, withholding a child from the court’s protection is a contempt committed in the presence of the court.
. The King court also recognized the importance of considering the best interests of the child in the decision, as this was the very purpose for which the father had been incarcerated:
In deciding whether a contemnor’s incarceration should continue, the trial court should also consider the significance of the ends to be achieved. It is appropriate for the court to balance its interests in enforcing compliance with a particular order and a con-temnor’s liberty. At some point, extended incarceration due to noncompliance with a relatively minor court order may be an abuse of discretion. In this case, the physical safety and well-being of a minor child may be endangered by Mr. King's continued defiance of the court order. It is an example of the kind of factors the court should weigh in deciding whether to continue or terminate incarceration for civil contempt.
King, supra, 110 Wash.2d at 805, 756 P.2d at 1310.
. The United States District Court for the District of Columbia has declined to entertain a petition for a writ of habeas corpus because of the pendency of the custody suit in the District of Columbia courts.
. Importantly, the Supreme Court's holding about constitutional fact review in Bose Corp. v. Consumer Union of the United States, 466 U.S. 485, 511, 104 S.Ct. 1949, 1965, 80 L.Ed.2d 502 (1984), relied upon in Judge Ferreris opinion, is limited to the First Amendment context. Moreover, unless it would involve abdicating our duty to state an actual constitutional norm or rule, independent appellate review of the facts is generally not warranted even in constitutional contexts. See Monaghan, Constitutional Fact Review, 85 Colum.L.Rev. 229, 264, 266 (1985). Many facts are determinative of a case, but few must be reviewed independently to determine the content of the law to be applied to them. Moreover, where the only fact on review is a predictive judgment about the contemnor’s future behavior, it may be detrimental to important constitutional concerns to rely upon anything less than the trial court’s judgment, based upon direct exposure to the contemnor.
. For example, it is the factfinder who is called upon to determine whether a person accused of crime will be dangerous if released before trial, United States v. Edwards, 430 A.2d 1321 (D.C.1981) (en banc), cert. denied, Edwards v. United States, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982), and whether a mentally ill person will, if released, constitute a danger to himself or others. Jones v. United States, 432 A.2d 364 (D.C.1981) (en banc), aff’d, 463 U.S. 354, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983).
. The District of Columbia has suggested another approach — the establishment of a time period limiting the duration of conditional confinement for civil contempt — a time period when due process considerations may be presumed to attach. This is of course a matter for the legislature.
. In Morgan III, supra, 546 A.2d at 414, we stated:
Probably neither our courts nor any courts anywhere in the world can deal in a perfect way with matters so intimately linked to a family unit formed and dissolved. We can but try. The little girl H grows older day by day. It is she, first and foremost, to whom the courts must seek to render justice as the process moves on.
. In D.D. v. M.T., supra note 1, 550 A.2d at 44, we stated:
Courts have a right to demand, and do insist upon, full and unstinting compliance with their commands. One who is subject to a court order has the obligation to obey it honestly and fairly, and to take all necessary steps to render it effective. Village of Great Neck Estates v. Rose, 279 A.D. 671, 108 N.Y. S.2d 95, 97 (2d Dept.1952), appeal dismissed, 303 N.Y. 904, 105 N.E.2d 491 (1951). He or she may not do the prohibited thing, nor permit it to be done by his or her connivance. Roehl v. Public Utility Dist. No. I of Chelan County, 43 Wash.2d 214, 231, 261 P.2d 92, 101 (1953) (en banc). Indeed, he or she must be diligent and energetic in carrying out the orders of the court, Swift v. Blum, 502 F.Supp. 1140, 1143 (S.D.N.Y.1980), and a token effort to comply will not do. Sound Storm Enterprises, Inc. v. Keefe, 209 N.W.2d 560, 568 (Iowa 1973).
.Judge Belson mischaracterizes my view in suggesting that I have concluded "that the trial judge can make a purely discretionary decision as to whether a contemnor should be released.” Although the civil contempt cases, relied upon and yet distinguished by Judge Ferren, speak of trial decisions as being "virtually unreviewable,” I am only suggesting that the trial court has the right to determine the underlying fact of “coer-cibility” if that is the trigger of release. (I note that our cases have spoken in terms of "inability to perform or substantial performance." Morgan II, 528 A.2d at 428; D.D. v. M.T., supra note 1, 550 A.2d at 44.) I would only reverse for abuse of discretion.