(concurring). Wiley Sword was $8,471 in arrears in paying child support decreed in a judgment of divorce. He was found to be in contempt and sentenced under the statute1 to serve one year in the county jail. The Court of Appeals reversed and remanded for further proceedings; we all join in affirming that decision.
Our colleague states, and we agree, that
—"[t]he statute provides only for civil contempt”;
—the contempt being civil, designed "to secure compliance with a judicial decree”2 and not to punish for "past misconduct”,3 a contemnor "must be placed in the position of holding in hand 'the keys to the jail’ ”;
—the circuit court erred "in employing a civil statute as a vehicle for an unconditional order of punishment”;
—the circuit court erred in limiting the inquiry on the statutory issue of whether Sword had "suffi*389cient ability to comply” with the support order to whether he was in "reasonably good health” and had the "physical” capacity to work;
. —a person required, by a support order, to pay child support does not have "sufficient ability to comply” with the order unless he has the "present ability to pay” the amount sought through the contempt proceeding;
—"[o]ne cannot be expected to do the impossible, so further inquiry should have been directed to determine additional present circumstances 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”.
We also agree that in a civil contempt proceeding there is no right to a trial by jury and that an indigent defendant is not necessarily entitled to assigned counsel.
We write separately
—to emphasize the need for presentation of evidence in the contempt proceedings focused on defendant’s present ability to pay;
—to indicate that the criteria for determining present ability to pay outlined in our colleague’s opinion are pertinent to the extent in any given case they assist in making that determination;
—to express our view that an indigent defendant should be provided assistance for his defense where, considering the nature and course of the proceedings, fairness so requires.
—to suggest that where a contemnor has remained in jail for over two weeks, the circuit court should, on its own initiative, reconsider its determination of present ability to pay and, if he is indigent, counsel should be assigned to represent him.
*390I
The statute provides that a person who fails to pay child support, required by an order entered in a divorce action, may be detained if the court is satisfied that he "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”.
Alternative means of enforcement are provided:
—"placing such person on probation”;
—"committing] him to the coünty jail”;
—"committing] him to the county jail with the liberty of jail limits which shall be co-extensive with the iimits of the county, during such hours as the court shall determine, for the purpose of allowing said party to go to and from his place of employment under such supervision as the court shall deem necessary”; or
—Committing him "to any state prison or any penal institution in the state”.
Confinement is permitted "for such period as said party shall continue to be in cóntémpt, not to exceed 1 year”.4 (Emphasis supplied.)
In limiting confinement to thé period the con-' temnor "shall continue to be in contempt” the statute by its terms indicates a púrpose to authorize only civil contempt proceedings.
The statute contemplates sentences "intended to operate in a prospective manner — to coerce, rather than punish. As such, they relate to civil contempt. While any imprisonment, of course, has punitive and deterrent effects, it must be viewed as remedial” if the contemnor may avoid further incárceration by complying with the court order. *391Shillitani v United States, 384 US 364, 370; 86 S Ct 1531; 16 L Ed 2d 622 (1966).
"When the petitioners carry 'the keys qf their prison in their own pockets,’ In re Nevitt, 117 F 448, 461 (CA 8, 1902), the action 'is essentially a civil remedy designed for the benefit of other parties and has quite properly been exercised for centuries to secure compliance with judicial decrees.’ ” Shillitani v United States, supra, p 368.
" 'Essentially, the difference between civil and criminal contempt is that the former seeks to change respondent’s conduct by threatefiing him with a penalty if he does not change it, while the latter seeks to punish him for past misdoings which affront the dignity of the court. Criminal contempt being for past misconduct, there is no way for one so convicted to purge himself of the contempt.’ Jaikins v Jaikins, 12 Mich App 115, 120; 162 NW2d 325 (1968).” State Bar of Michigan v Cramer, 399 Mich 116; 249 NW2d 1 (1976).
Since the statute provides only for civil contempt proceedings the circuit court erred in entering an order of confinement that did not state the condition which Sword could perform to become entitled to release from custody. Sword was $8,471 in arrears in the payment of child support. Absent indication by the court that he would be released upon páyment of less than the full arrearage, the apparent condition Was that he pay the arrearage in full. The condition should have been stated in the order.
II
The proceedings being for civil contempt (to change the defendant’s conduct and compel compliance with the court’s order), the statutory term "sufficient ability to comply with said order” does not relate to the contemnor’s past misconduct but *392to his present ability to comply; in short, his "present ability to pay”.5
"Since the purpose of civil contempt is to enforce compliance with a court’s order rather than to punish for disobedience, one convicted and sentenced for civil contempt may not be incarcerated beyond the time that he is able to comply with the court’s order. In Shillitani v United States, [supra], p 371, the United States Supreme Court declared:
" 'However, the justification for coercive imprisonment as applied to civil contempt depends upon the ability of the contemnor to comply with the court’s order.’ ” Spalter v Wayne Circuit Judge, 35 Mich App 156, 161; 192 NW2d 347 (1971).
A construction of "sufficient ability” that took into account past misconduct would deny the premise that the contemnor may not be incarcerated if he does not have the ability to comply with the court’s order. Construing, "sufficient ability” to mean "present ability to pay” establishes a standard consonant with that premise and the concept that the civil contemnor carries the keys of the prison in his own pocket.
Ill
Sword had remarried and was receiving benefits for his second family from the Aid to Dependent Children, Unemployed Fathers Program (ADC-U). Presumably, the authorities were satisfied that he and his family were needy and that he could not obtain employment.6
*393There is no evidence that Sword had the present ability to pay the $8,471 arrearage. Recrimination that if he had in prior years exercised greater diligence, industry and husbandry he might have improved his condition and would not find himself in this position has no bearing on his present ability to pay the arrearage.
IV
The contempt being civil there is no right to trial by jury and the court is not necessarily obliged to appoint counsel for an indigent defendant.
There must, however, be a factual predicate for the conclusion that the contempt is civil. The record must show that the defendant has in fact the present ability to comply with the court’s order.
The factual issue has constitutional implications. If the defendant does not have the present ability to pay, then he does not have the "keys to the jail”; what is nominally a civil contempt proceeding is in fact a criminal contempt proceeding — the defendant is not being coerced, but punished. If, because the defendant has no present ability to comply, the contempt proceeding is in effect criminal the defendant may be entitled to trial by jury, and, if indigent, to assigned counsel7
*394Whenever it is proposed to jail a person for nonsupport a stenographic record is required and there should be careful inquiry focusing on his present ability to pay.
The moving party shoüld be required to introduce all evidence in his possession bearing on the issue of present ability to pay. The defendant may be called upon to respond with full disclosure of all his assets and sources of income. Before the defendant can be incarcerated there should be findings supported by substantial evidence that he has the ability to perform the condition of the proposed order of confinement.8
V
If the defendant is employed and the issue concerns payment of current support allowances, there will generally be no need to incarcerate to obtain compliance. The statute provides: "the court may order an assignment to the friend of the court of the salary, wages or other income of the person responsible for the payment of support and maintenance, which , assignment shall continue until further order of the court”.9
The difficult factual issues are presented where it is sought to collect arrearages or the defendant is unemployed.
*395Our colleague’s opinion states ten criteria for determining "present ability to pay”.
Criterion 6, "[a]ssets, real and personal,” will in every case be relevant to the inquiry. "[A]ny transfer of assets to another” would be relevant only insofar as "by the exercise of diligence” the defendant could recover the transferred assets.
Criterion 5, "[defendant's personal history, including present marital status and present means of support”, would be relevant insofar as it shows means or lack of means of support and competing demands on defendant’s resources.
Criterion 3, "[w]ork opportunities available”, would be relevant only if the judge is willing to consider probation or a commitment with liberty of jail limits, thereby permitting the defendant to avail himself of such an opportunity. If a defendant is in jail, he is not "[available] for work [criterion 9]” and he cannot take advantage of a "work opportunity available”.
Criteria 2, "Education and skills” and 8, "[h]ealth and physical ability to obtain gainful employment” would be relevant on the question whether a work opportunity identified by the moving party is actually available to the defendant.
Criteria 10, "[l]ocation(s) of defendant since decree and reason(s) for move(s), if there has been any change of address”; 1, "Employment history, including reasons for any termination of employment”; 9, "[a]vailability for work (exact periods of any hospitalization, jail time, imprisonment)”; and 4, "[djiligence employed in trying to find work” are marginally relevant. While the defendant’s employment history might influence a prospective employer and his diligence in seeking and industry in holding employment might bear on whether he has ferreted out and availed himself of all opportu*396nities, such evidence would not tend to establish that he has in fact a current work opportunity and the present ability to pay.
Criterion 7, "[ejfforts made to modify the decree if it is considered excessive under the circumstances” would not tend to show present ability to pay unless the judge is willing to modify the decree and, as modified, the defendant has the present ability to comply fully with it.
In sum, the inquiry is not what was or might have been but what is: defendant’s "present” ability to comply with the order, including whether by the exercise of diligence he would be able to comply. If the defendant is not placed on probation or allowed the liberty of jail limits during hours of employment, no work opportunity otherwise available is in fact available. Whatever defendant’s past employment and personal history of industry or lethargy; diligence or neglect and the marketability of his skills, unless there is in fact a job available to him and he can, by taking advantage of that opportunity, comply with the court’s order, he does not on that account have present ability to comply.
VI
In some cases the moving party will be the custodial spouse. In others, whether or not the proceedings are brought in the custodial spouse’s name, the moving party will be the friend of the court or the prosecuting attorney. Sometimes proofs will be offered by the custodial spouse without assistance. More often, they are presented by the friend of the court or a lawyer seeking to enforce the support order. Even if the friend of the court is not a lawyer, he is trained and experienced and feels at home in the courtroom. The *397judge often takes over the questioning and develops the facts. An untrained person on the defensive in the unfamiliar environment of the courtroom may require assistance to respond adequately to the proofs adduced by the moving party’s lawyer, the prosecuting attorney, friend of the court or the judge.
Significant in this connection is the state’s interest in enforcing support orders. The burden of welfare payments for the support of dependent children has prompted government to seek enforcement of child support orders without regard to whether the person having custody of the child desires it. Under some Federal programs a portion of the monies recovered is returned to the counties. The courts in recent reports have called public attention to their role in recovering monies for the counties.10
If the proceedings are brought by the state, its initiative and monetary interest in the proceedings are factors to be considered in deciding whether assistance should be provided to the defendant. Artibee v Cheboygan Circuit Judge, 397 Mich 54; 243 NW2d 248 (1976). "That this is a confrontation between the state and an individual is 'a circum*398stance of great importance in determining a standard of fairness.’ ” Heist v Bay Circuit Judge, 396 Mich 326, 345; 241 NW2d 55 (1976).11
Another factor to be considered is whether the state supplies an advocate or counsel to represent the interest of the moving party. Artibee, supra; Reist, supra. Where the moving party is represented, the defendant may require assistance to present his side of the controversy.
Still another factor is the nature of the proofs presented or expected to be presented at the hearing.
We find instructive the analysis of the United States Supreme Court in Gagnon v Scarpelli, 411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973), where the Court held that the state was not under a constitutional duty to provide counsel for indigents in all probation revocation cases, and that the decision regarding the need for counsel should be made on a case-by-case basis in the exercise of an informed discretion.12
*399The need for assigned counsel should be infrequent and only in those cases where there is a substantial controversy regarding ability to pay.
VII
If the court determines that the defendant has the present ability to pay and he is jailed for failure to comply with the court’s order, it is expected that the oppressiveness of confinement will soon bring about compliance. This generally occurs. If that expectation is not realized it suggests that the defendant may not have the present ability to comply and that the court may have called upon him to do the "impossible”.
Further inquiry, on the court’s own initiative, is indicated, especially in those cases where the defendant was not represented by counsel during the contempt proceedings. We suggest as a safeguard against misuse of the civil contempt statute in cases where the defendant is without the wherewithal to comply, that the circuit court, as a matter of practice, review the civil contempt jail population periodically, not later than two weeks after sentence, and reassess determinations that the defendant has the present ability to pay; if the defendant is indigent, counsel should then be assigned to represent him.
*400The United States Supreme Court, in reversing in Maggio v Zeitz, 333 US 56; 68 S Ct 401; 92 L Ed 476 (1948), a finding of civil contempt for failure to comply with a turnover order of a referee in bankruptcy, indicated that where the passage of time "has made sufficiently certain what was doubtful before” namely, the contemnor’s inability to comply with the order, he should be released.13
Kavanagh, C. J., and Williams, J., concurred with Levin, J.1913 PA 239, as amended; MCLA 552.201; MSA 25.161.
People v Goodman, 17 Mich App 175; 169 NW2d 120 (1969).
Jaikins v Jaikins, 12 Mich App 115; 162 NW2d 325 (1968).
See fn 1, supra.
Similarly see Johansen v State, 491 P2d 759, 761 (Alas, 1971).
Sword does not appear to be a "deadbeat” who has or could have the money to pay but simply forgets or refuses to do so.
He was apparently indigent and anxious to stay out of jail. He told the judge that he was willing to waive a hearing because “sixteen days up there in a cell block is getting me”.
He was in a work program and seeking employment. Putting him *393in jail for a year assured that even if a job had been found he could not take it.
By reason of the Sixth Amendment, as applied to the states through the Fourteenth Amendment, a person cannot be sentenced to serve more than six months for criminal contempt without an opportunity for a jury trial. Codispoti v Pennsylvania, 418 US 506, 511-512; 94 S Ct 2687; 41 L Ed 2d 912 (1974); Taylor v Hayes, 418 US 488; 94 S Ct 2697; 41 L Ed 2d 897 (1974).
"In order to obviate the confusion arising from such proceedings we hold that conviction for criminal contempt can be sustained only upon a record which shows compliance with the procedural safe*394guards established for the prosecution of any other crime of equal gravity.” People v Johns, 384 Mich 325, 333; 183 NW2d 216 (1971).
Similarly see State Bar of Michigan v Cramer, 399 Mich 116; 249 NW2d 1 (1976).
If the arrearage is substantial, as it was in this case, the court might establish a condition of periodic payment of a smaller amount. The condition established has considerable bearing on present ability to pay. A defendant unable to pay $8,471 in a lump sum might have the ability to pay a smaller sum each week against such arrearage.
MCLA 552.203; MSA 25.163. See in 1, supra.
Child support payments are made through the office of the friend of the court. Each county friend of the court has an enforcement staff which either on its own or on complaints filed by the custodial spouse initiates enforcement actions against the non-paying spouse. When court action is taken typically either the county prosecutor or a friend of the court staff person appears in circuit court to recommend and advance the contempt proceeding. Some judges take an active role in questioning the defendant regarding his or her failure to pay.
Where Federal money is involved (the custodial spouse is on ADC or ADC-U, for example), many counties have extra enforcement officers paid with Federal funds whose task is to pursue the nonpaying spouse to recoup money for the Federal program, with a portion of that money going to the counties. Women on ADC do not receive the child support money paid by the fathers of their children; that money goes to the government unit making the ADC payments, giving it an additional incentive to pursue and collect from delinquent fathers.
Similarly see Tetro v Tetro, 86 Wash 2d 252; 544 P2d 17, 19 (1975), and Otton v Zaborac, 525 P2d 537 (Alas, 1974), where counsel was appointed in civil contempt actions for nonsupport.
"We think, rather, that the decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system. Although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairness — the touchstone of due process — will require that the State provide at its expense counsel for indigent probationers or parolees.
"It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements. The facts and circumstances in preliminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision. Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged *399violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record.” Gagnon v Scarpelli, 411 US 778, 790-791; 93 S Ct 1756; 36 L Ed 2d 656 (1973).
"Every precaution should be taken that orders issue, in turnover as in other proceedings, only after legal grounds are shown and only when it appears that obedience is within the power of the party being coerced by the order.
"Of course, to jail one for a contempt for omitting an act he is powerless to perform would reverse this principle and make the proceeding purely punitive, to describe it charitably. At the same time, it would add nothing to the bankrupt estate. That this Court in the Oriel case contemplated no such result appears from language which it borrowed from a Circuit Court of Appeals opinion which, after pointing out that confinement often failed to produce the money or goods, said, ' "Where it has failed, and where a reasonable interval of time has supplied the previous defect in the evidence, and has made sufficiently certain, what was doubtful before, namely, the bankrupt’s inability to obey the order, he has always been released, and I need hardly say that he would always have the right to be released, as soon as the fact becomes clear that he cannot obey.” ’ Moreover, the authorities relied upon in Chief Justice Taft’s opinion make it clear that his decision did not contemplate that a coercive contempt order should issue when it appears that there is at that time no wilful disobedience but only an incapacity to comply.
"The trial court is obliged to weigh not merely the two facts, that a turnover order has issued and that it has not been obeyed, but all the evidence properly before it in the contempt proceeding in determining whether or not there is actually a present ability to comply and whether failure to do so constitutes deliberate defiance which a jail term will break.” Maggio v Zeitz, 333 US 56, 69, 72-73, 76; 68 S Ct 401; 92 L Ed 476 (1948).