On April 16, 1973, Wiley Sword was found in contempt of circuit court (Genesee County) for failing to pay child support and was sentenced to one year in jail. The Court of Appeals reversed because the trial court had not applied a proper standard for determining contempt and because the order failed to provide for release upon purge of the contempt. Defendant appealed to this Court because the Court of Appeals refused to provide for appointment of an attorney and for trial by jury upon remand.
We agree with the Court of Appeals that the judge employed incorrect criteria in his finding of contempt and that the circuit court exceeded its authority in sentencing defendant to a year in jail without provision for his right to purge himself of the contempt. We also agree with the Court of Appeals that the circuit judge was under no constitutional mandate to appoint an attorney for defendant. Although there is no prohibition against such an appointment, court-appointed counsel is not required. Neither is a jury trial required in non-support civil contempt hearings.
I
Since Mary Sword filed for a divorce from Wiley Sword on December 30, 1960, defendant has been *374in jail four times for non-payment of child support. During one of the times in jail, he was on a work-release program and worked at a potato chip factory. From those earnings, he made some payments, but departed from the job when released from jail. He claimed that he had been returned to Federal prison in Ohio on August 15, 1961 where he remained until paroled "in the latter part of '63” to Milwaukee, Wisconsin, where he was ordered to pay $15 per week under the "reciprocal code”. He claimed to have made some payments until he became sick and was unable to work "for awhile”. He apparently owed $405 under the Wisconsin order. He also was in jail for awhile in that state. Defendant has moved about the country and his whereabouts during the balance of this period remain unclear. However, he married again and had another family which was receiving public assistance (and had been for about four years). Defendant testified that he was enrolled in a work program but that the State Department of Social Services had been unable to find work for him.
Of the five children born during defendant’s first marriage, Mary Sword Hunter and her second husband adopted the two younger children,1 leaving three children for whom defendant was to pay $8 per week each. At the time of the adoption, defendant was released from all arrearage ($5,000) excepting $405 arrearage from the Wisconsin order.
At the time of the subject contempt hearing, one child was over 18, leaving defendant liable for payments of $8 per week for each of two children. He was $8,471.50 in arrears.
Mr. Sword appeared in circuit court on April 4, *3751973 where he asked for and was granted time to obtain counsel. Bond was set at $1500 and defendant was returned to jail. At a hearing on April 16, 1973, defendant said he could not retain counsel. There is no indication that he asked or tried to ask for publicly funded legal assistance from Legal Services of Eastern Michigan, which now represents him, or from any other agency providing legal services free to indigents.
The court stated counsel would not be appointed because the matter was one of civil contempt. Defendant was sentenced to one year in jail by virtue of an order which failed to provide for release upon defendant’s purging himself of the contempt. The sentence was imposed upon the finding that the arrearage existed as alleged and that defendant had "the physical ability to comply with the order”.
On August 1, 1973, defendant filed a pro per motion to dismiss the contempt charge claiming that he was entitled to appointment of counsel and a jury trial. This was denied September 6, 1973. Through an attorney from Legal Services of Eastern Michigan, defendant appealed. On December 13, 1973, the Court of Appeals granted the application and, on its own motion, ordered defendant released pending a decision.
The Court’s opinion was entered March 24, 1975 and reversed the trial court for two reasons. First:
"Because our statute contemplates consideration of all factors relevant to the defendant’s ability to comply, and not merely the element of physical capacity to work, the action of the lower court must be reversed. Any further determination of defendant’s ability to support his children must take into account more than his apparent physical ability to work and must consider whether, under all the circumstances, he has 'sufficient *376present ability’ to obey the support order, or neglected, or refused to obey the order.” 59 Mich App 730, 734; 229 NW2d 907 (1975).
Second, the trial court "exceeded its authority” by imposing a sentence "with no provision for allowing him to purge his contempt at any time”. Compare Roblyer v Roblyer, 354 Mich 226; 92 NW2d 330 (1958).
Because the proceedings were civil, the Court of Appeals declined to extend the right to appointed counsel and jury trials, saying:
"The defendant in a true civil contempt proceeding has no need of the ritual of a full-scale criminal trial, for he may end his imprisonment at any moment by merely complying with the court’s order, or may convince the court after a short period of confinement that he will comply. His ability to secure his freedom at any time eliminates the necessity for the elaborate and costly proceedings involved in a criminal jury trial. Furthermore, the state, representing the people, has a substantial interest in the efficiency of proceedings designed to secure support for minor children. To, require a pitched battle over the relatively simple issue of disobedience of a support order could lead to a further breakdown of the administration of justice in our courts as expenses and delays increase.” 59 Mich App 737-738.
Judge R. B. Burns concurred in the result but said that the Court did not have to discuss the constitutional issue.
II
1913 PA 239 (MCLA 552.201-552.203; MSA 25.161-25.163) provides "a penalty for failure to pay money for the support and maintenance of minor children”. MCLA 552.201 reads in part:
*377"Whenever the court shall be satisfied that the party is of sufficient ability to comply with said order, or by the exercise of diligence could be of sufficient ability, and has neglected or refused to do so, said court may forthwith punish such person for contempt of said court by making an order placing such person on probation or may commit him to the county jail * * * for such period as said party shall continue to be in contempt, not to exceed 1 year, however.” (Emphasis added.)
The Court of Appeals correctly concluded that "our statute contemplates consideration of all factors relevant to the defendant’s ability to comply”. Justice Campbell in Haines v Haines, 35 Mich 138, 143, 144 (1876), said "the question of punishment * * * will depend on whether the conduct * * * is intentionally and willfully contumacious, or * * * is qualified by circumstances which should fairly exempt him from serious blame”. He said that "the process of contempt to enforce civil remedies is one of those extreme resorts which cannot be justified if there is any other adequate remedy”.
The question in Brown v Brown, 135 Mich 141, 143, 146; 97 NW 396 (1903), was whether a support order "may be lawfully enforced through imprisonment for contempt”. The Court found there was "as much necessity for stringent measures to compel the support of helpless children as there can be for that of the divorced wife”.2
The Court in Van Dommelen v Van Dommelen, 218 Mich 149, 154; 187 NW 324 (1922), discussed an alimony award:
*378"As a recognized incident of divorce it is founded on the continuing obligation assumed by the husband under his contract of marriage to support his wife and children, not based exclusively on his property or estate but also on his earnings or ability to earn and their necessities. In making the award, and later in enforcing it, the court is expected and required to have due regard to the ability of the husband, the character and circumstances of the parties and all other circumstances of the case. Though based on existing facts it is largely anticipatory.”
The "issuance of an order of contempt rests in the sound discretion of the court”. Barnaby v Barnaby, 290 Mich 335, 337; 287 NW 535 (1939).3
The Court of Appeals decision is consistent with Van Dommelen in its finding that the trial court "must consider whether, under all the circumstances, [defendant] has 'sufficient present ability’ to obey the support order”. Also see Wellman v Wellman, 305 Mich 365; 9 NW2d 579 (1943).
Defendant, however, requests more specific criteria by which the judge may determine present ability to pay. The plethora of possible circumstances surrounding a multitude of alleged contemnors precludes the realization of our ambition to be helpful by precision.
Therefore, we only suggest some possible lines of inquiry of defendant in addition to the accuracy of the alleged arrearage.
1. Employment history, including reasons for any termination of employment.
2. Education and skills.
3. Work opportunities available.
4. Diligence employed in trying to find work.
*3795. Defendant’s personal history, including present marital status and present means of support.
6. Assets, real and personal, and any transfer of assets to another.
7. Efforts made to modify the decree if it is considered excessive under the circumstances.
8. Health and physical ability to obtain gainful employment.
9. Availability for work (exact periods of any hospitalization, jail time, imprisonment).4
10. Location(s) of defendant since decree and reason(s) for move(s), if there has been any change of address.
Different circumstances will suggest other, questions, but the sum total should reveal (1) whether there is an arrearage and, if any, the amount, and (2) why the order of the court was not obeyed. If the judge concludes from the testimony of defendant and others that defendant has "sufficient ability to comply with” the order or "by the exercise of due diligence could be of sufficient ability, and bas neglected or refused” to comply, defendant may be found in contempt of court.
The trial court erred in limiting the test of ability to pay solely to that of physical ability.
Ill
Defendant claims that, on remand, he is entitled to appointed counsel if he is indigent. The Court of Appeals rejected the claim because the contempt was a civil proceeding and the possible burden on the courts outweighs any benefits to the defendant.
In People ex rel Attorney General v Yarowsky, 236 Mich 169, 171-172; 210 NW 246 (1926), defend*380ant was held in contempt for violating an injunction against operating a house of prostitution. The Court said:
"It is not always easy to distinguish whether these proceedings are civil or criminal. The test is well stated in State v Knight, 3 SD 509; 54 NW 412; 44 Am St Rep 809 [1893]:
" 'If the contempt consists in the refusal of a party to do something which he is ordered to do for the benefit or advantage of the opposite party, the process is civil, and he stands committed till he complies with the order. The order in such a case is not in the nature of a punishment, but is coercive, to compel him to act in accordance with the order of the court. If, on the other hand, the contempt consists in the doing of a forbidden act, injurious to the opposite party, the process is criminal, and conviction is followed by fine or imprisonment, or both; and this is by way of punishment. In one case the private party is interested in the enforcement of the order, and, the moment he is satisfied, the imprisonment ceases. On the other hand, the State alone is interested in the enforcement of the penalty, it being a punishment which operates in terrorem, and by that means has a tendency to prevent a repetition of the offense in other similar cases.’ ” (Emphasis added.)
The heart of the argument in favor of defendant’s constitutional right to an appointed attorney if he is indigent is that he may be incarcerated.
There is heavy reliance upon Argersinger v Hamlin, 407 US 25, 37; 92 S Ct 2006; 32 L Ed 2d 530 (1972), in which the United States Court held that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial”. Argersinger contemplates punishment for a criminal act whereas civil contempt is remedial or coercive. The objective is to bring about compliance with a *381court order entered after trial, not punishment for the oifense of which defendant was determined guilty at the time of trial.
More germane to the problem before us is Gagnon v Scarpelli, 411 US 778, 782, 783, 787, 790; 93 S Ct 1756; 36 L Ed 2d 656 (1973), in which the Court said probationers as well as parolees are "entitled to a preliminary and a final revocation hearing”. Neither of these are "a stage of a criminal prosecution” but they do "result in a loss of liberty”. Also see Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972).
The "more difficult question” was "whether an indigent probationer or parolee has a due process right to be represented by appointed counsel at these hearings”. The Court said:
"[W]e think that the Court of Appeals erred in accepting respondent’s contention that the State is under a constitutional duty to provide counsel for indigents in all probation or parole revocation cases. While such a rule has the appeal of simplicity, it would impose direct costs and serious collateral disadvantages without regard to the need or the likelihood in a particular case for a constructive contribution by counsel.”
Providing attorneys in all cases would prolong hearings and greatly increase the government’s financial burdens.
"We thus find no justification for a new inflexible constitutional rule with respect to the requirement of counsel.”
In some cases there may be special circumstances which would lead the trial judge to appoint counsel, but he or she is not under a constitutional mandate to do so as a general rule.
*382The nature of a civil non-support proceeding lends credence to plaintiffs contention that the appointment of an attorney for an indigent does hot rise to the level of a guaranteed constitutional right.
The order of the court resulting from a previous trial has allegedly been disobeyed.
The affidavit of complaint usually is filed by the named plaintiff or Friend of the Court. After proper notice and when the time of hearing arrives, the judge in most cases questions the párties in a relatively informal hearing. The Friend of the Court is usually not an attorney nor represented by an attorney. The door is always open to coünsel of named plaintiff and/or defendant. The facts establishing the arrearage are bookkeeping matters and rarely are subject to substantial dispute. Inquiry concérriing defendant’s ability to pay, reasons for the arrearage and mitigating circumstances normally are not complicated. CifcUit judges handle many cases in a day or part óf a day; As the Court of Appeals related, Annual Report of the Supreme Court 1973 revealed 54,000 divorce cases disposed of and "[i]t can be safely estimated 25,000 support cases are added to thé thousands of files of the Friend of the Court each year and there remain until all children are 18 yéars of age”; 59 Mich App 742.
In 1973 there were 20,000 criminal cases disposed of by the circuit courts of Michigan. The large majority of indigent defendants have attorT rieys appointed at county expense. (This does not include those chárged with misdemeanors arid petty crimes for whom counsel is appointed for lower court disposition.)
The magnitude of probably more than doubling the number of appointed counsel to be paid for in *383the main part by local funds is apparent. The exorbitant financial burden would be equalled by a need for more court time, personnel and space to accomodate defendants’ demands for counsel and jury trial.
Although we would not deny any person a fair trial, the nature of non-support civil proceedings usually is not complex. If it is, the judge may appoint counsel. However, we do not make a general rule to fit the exception in civil non-support cases.
Defendant argues that equal protection of the law requires appointment of an attorney because another person could retain one. Such is true of all civil cases. If we were to say (on équál protection grounds) that every contempt defendant is entitled to counsel because some defendants can afford counsel, there would be no cap on the well. Every indigent wife and husband prosecuting or defending any suit would.be entitled to counsel. We have said that the constitution is concérnéd with practical consequence. Certainly that tenet applies here where the overriding interest of the state is in obtaining support for minor children, not in punishing the defendant or removing him from society.
Unlike Artibee v Cheboygan Circuit Judge, 397 Mich 54; 243 NW2d 248 (1976), Mr. Sword’s parenthood has been established arid his support obligations ordered in a previous proceeding. Unlike in a criminal contempt, if defendant is incarcerated, he must be placed in a position of holding in hand "the keys to the jail”. His term of incarceration is therefore indefinite within the one year maximum.
The entire purpose and thrust of the civil proceedings are different from those of criminal contempt — as is the result.
*384IV
Defendant also claims he is entitled to a jury trial.
Argersinger noted that the "right to trial by jury, also guaranteed by the Sixth Amendment by reason of the Fourteenth, was limited by Duncan v Louisiana [391 US 145; 88 S Ct 1444; 20 L Ed 2d 491 (1968)] to trials where the potential punishment was imprisonment for six months or more”. 407 US 29. If the contempt is designed to punish, not compel, and if the defendant cannot purge himself, MCLA 600.1715; MSA 27A.1715 provides that the punishment may not exceed a $250 fine and 30 days imprisonment. There would be no right to trial by jury.
If the contempt is civil, the sentence may or may not exceed six months. However, Duncan was a Sixth Amendment case and applies only to criminal trials.
It has long been held that juries are not available in contempt cases. In In re Chadwick, 109 Mich 588, 598; 67 NW 1071 (1896), the Court said:
"We are not aware of any decision under a constitution similar to ours holding that one accused of contempt is entitled to a jury trial. It is apparent that this power should be lodged in the court. It is repugnant to all ideas of propriety to say that a jury should determine whether an act committed or statement made in the presence of the court or outside it was insulting and degrading to the court itself, and tended to obstruct the due course of justice. The authorities are nearly uniform that the court must determine the question. Such has been the uniform practice in the courts of this State. 'Cases of contempt of court were never triable by jury, and the object of the power would be defeated in many cases if they were. The power to punish con-tempts summarily is incident to courts of law and *385equity.’ Cooley, Constitutional Limitations (4th ed), p 394, note 2. The judicial department is entirely distinct from the legislative, and the Constitution leaves this power existing in the court as it was at the common law.” (Emphasis added.)
Also see People v Doe, 226 Mich 5; 196 NW 757 (1924).
A bitter union/employer fight was involved in Cross Co v UAW Local No 155, 377 Mich 202, 210, 211; 139 NW2d 694 (1966). An injunction was violated. Because the Court found the "sentences were in the nature of punishment for offenses committed” and therefore were criminal, the proceedings "had to be carried on in observance of basic constitutional protections afforded to those charged with commission of a crime”.
However, the Court said "it does not follow that it must have all the attributes of the usual criminal proceeding — one of which is trial by jury”. The Court said a jury trial was not required by the constitution or public policy. Injunctive powers "ought to be exercised with utmost discretion and reserve” but, once asserted, "there is much to be said for preservation by the court of its power to enforce orders issued with speed and dispatch, even summarily”.
In People v Goodman, 17 Mich App 175, 177-178, 179; 169 NW2d 120 (1969), Justice Fitzgerald wrote:
"Recent decisions of Michigan courts clearly follow the rule of Shillitani v United States, 384 US 364; 86 S Ct 1531; 16 L Ed 2d 622 (1966), that when it appears the defendants conditionally carry the 'keys of their prison in their own pocket’ then the action is essentially civil. If, in other words, the intent of the sentence can be said to be a coercive inñuence of the future behavior of the defendant in order to secure compliance *386with a judicial decree, then the sentencing is a part of a civil.proceeding. However, where the future behavior of thé defendants can be said to have no influence over the use of the keys, such use already having been decreed arid controlled by thé court; then the sentence is One of punishment for behavior already committed in violation of the decree, and the contempt action, being unconditional as to result, is criminal;” (Emphasis added.)
The Court found that a jury trial was not mandatory even though that particular case was "determined to be criminal in nature”. Also see People v Nowicki, 384 Mich 482; 185 NW2d 390 (1971).
A willful failure to pay child support can be á felony punishable up to three years in a state prison (MCLA 750.161; MSA 28.358) and, of course, a jury woüld be necessary. Punishment for failure to comply with a support order also coüld be brought under MCLA 600.1715; MSA 27A.1715 in which incarceration is limited to an uncóriditional 30 days. Under Duncan, supra, no jury would be required.
However, when MCLA 552.201; MSA 25.161 is employed, there is no maximum time certain providéd for punishment. The statute provides only for civil contempt and a conditional maximum period of incarceration from which at any time the defendant may free himself by complying with the order. This statute is remedial. No jury is required.
V
The circuit court erred, however, in employing a civil statute as a vehicle for an unconditional order for punishment.5
*387If the court contemplates coercion and the order reflects the remedial aspect of the contempt proceeding by setting forth conditions with which defendant may reasonably be expected to comply and thereby obtain release, the contempt proceeding is civil.
VI
In summary, neither appointed counsel nor a jury trial is constitutionally required in civil nonsupport contempt proceedings. This conclusion is based both upon legal and practical analyses of the factors involved.
For instance, the hearings usually are not complicated or formal in the sense of á criminal trial. The judge, not a prosecutor, normally inquires of all witnesses. If the case warrants, the judge may appoint counsel. The possible incarceration for failure to obey court order is not unconditional punishment but is designed to coerce the support of children and obedience to the court order.
The impact of right to appointed counsel and jury in all civil contempt cases is beyond our ability to predict. The cost of such counsel and juries in probably thousands of cases annually includes not only locally paid attorney fees, but local financing of staff, courtrooms, jurors supportive system and, in whole or part, of additional judges.
However, the trial judge erred when he employed failure to pay the ordered support and the present physical ability of defendant to work ás the sole criteria for incarceration for civil contempt of court. One cannot be expected to do the impossible, so further inquiry should have been directed to determine additional present circum*388stances of defendant. If he reasonably could have been expected to purge himself of the contempt while in jail, a conditional incarceration would have been appropriate. Therefore, in addition to employing the wrong criteria, the judge also erred in unconditionally sentencing defendant to a year in jail.
Affirm the Court of Appeals and remand to the circuit court for proceedings consistent with this opinion.
Fitzgerald, Lindemer, and Ryan, JJ., concurred with Coleman, J.A copy of the probate court order of confirmation was filed in the circuit court on October 9, 1967.
Also see Curtis v Curtis, 253 Mich 312, 316; 235 NW 167 (1931), (contempt decree upheld as defendant "has been wilfully disobedient to the order of the court and has shamelessly neglected his child”) and In re Lupu, 285 Mich 500, 504; 281 NW 236 (1938), (contempt upheld in part because "it is quite as much a matter of good public policy that he should be required to respect rather than defy the order of the court”).
Also see Wellman v Wellman, 305 Mich 365; 9 NW2d 579 (1943), and Lytle v Lytle, 319 Mich 47; 29 NW2d 138 (1947).
E.g., Mr. Sword had been in a hospital at one time, in jail another time and in prison twice. When and for how long?
In Spatter v Wayne Circuit Judge, 35 Mich App 156, 160-161; 192 NW2d 347 (1971), the Court said criminal contempt "is to punish the offender for his disobedience or contumacious behavior”. The purpose of civil contempt "is to compel obedience to an order of the court”.