HOLLAND, Justice:

    The parties were divorced on July 1, 1993. Thereafter, the appellee, Mary Anne Salicete ("Salicete")

filed a series of petitions for a Rule to Show Cause. Each petition alleged that the appellant, Michael

DiSabatino ("DiSabatino"), had violated prior orders of the Family Court.

    The Family Court conducted hearings, made findings of fact, and entered dispositions on several of

the petitions. The first order at issue in this appeal was entered on November 16, 1994. It imposed

sanctions upon DiSabatino which: placed him on curfew; restricted his driver's license; and ordered

him to pay Salicete the sum of $18,000 by December 1, 1994. DiSabatino filed a notice of appeal

from that judgment on November 30, 1994, but did not seek to have it stayed.

    On December 27, 1994, the Family Court conducted a hearing and concluded that DiSabatino was in

contempt of its November 16, 1994 judgment. The sanctions imposed included DiSabatino's

commitment to the Department of Adult Corrections as of December 28, 1994 at 12:00 noon.

DiSabatino was to be incarcerated until such time as he purged himself of the contempt finding, by

paying to Salicete the sum of $18,000 with interest at 8% from December 1, 1994. DiSabatino filed a

notice of appeal from that judgment on January 25, 1995.

    DiSabatino's two appeals were consolidated. FN1 DiSabatino contends that each of the proceedings

and judgments in the Family Court were for "serious" criminal contempt. The undisputed record

2/27/2003 http://web2.westlaw.com/result/text.wl?RP=/Find/default.wl&RS=WLW2.83&VR=2.0&S ...

reflects that DiSabatino was denied the full panoply of rights which are afforded to an accused person,

inter alia, the right to trial by jury. Thus, DiSabatino argues the adjudications of contempt and the

sanctions imposed by the Family Court must be reversed.

constitutional rights that are guaranteed to a defendant in a criminal proceeding, including the right to

a trial by jury. Consequently, the judgments of the Family Court are reversed.

Del.C. § 1509(a). FN2 The Family Court conducted a hearing on December 14, 1993. It concluded

that DiSabatino had violated the restraining order during the period of November 18-20, 1993, by:

approaching Salicete at a tavern; pouring a glass of wine over her head; addressing her with profanity;

and driving to her house at 3:30 a.m., where he insulted her from his parked vehicle.

FN2. § 1509. Preliminary injunction; interim orders pending final hearing.

(a) Upon the filing of a petition for divorce or annulment, a preliminary injunction shall

be issued against both parties to the action, enjoining them from:

    (1) Transferring, encumbering, concealing or in any way disposing of any property

except in the usual course of business or for the necessities of life, and requiring the

parties to notify the other of any proposed extraordinary expenditures and to account to

the Court for all extraordinary expenditures after the preliminary injunction becomes

effective;

    (2) Molesting or disturbing the peace of the other party;

    (3) Removing any natural or adopted child of the parties then residing in Delaware from

the jurisdiction of this Court without the prior written consent of the parties or the

permission of the Court;

    (4) Utilizing credit cards or otherwise incurring any debt for which the other party is or

may be liable except in connection with the martial litigation or necessities of life for the

benefit of the party or the parties' minor children.

    The preliminary injunction shall be effective against the petitioner upon the filing of the

through Saturday; and abide by a curfew restricting him from leaving his home after 7:00 p.m. on any

day of the week. The Family Court also warned DiSabatino that any further violations would result in

a home confinement program, monitored by the use of an ankle bracelet.

Salicete filed another petition for a Rule to Show Cause when DiSabatino failed to pay her the

$18,000 of assessments. The Family Court conducted a hearing on December 27, 1994. The Family

Court found DiSabatino in contempt for not paying $18,000 to Salicete by December 1, 1994. As a

sanction for that contempt finding, DiSabatino was committed to the Department of Adult

Corrections, until such time as he paid the $18,000 plus 8% interest from December 1, 1994 to

Salicete. The sentence was made to be effective at noon on December 28, 1994. The Family Court

stated that the sentence would be vacated upon notice that the assessment had been paid.

    Courts have "an inherent contempt authority, ... as a power 'necessary to the exercise

of all others.' " United Mine Workers v. Bagwell, 512 U.S. 821, ----, 114 S.Ct. 2552, 2559, 129

L.Ed.2d 642 (1994). As the United States Supreme Court has stated:

That the power to punish for contempts is inherent in all courts, has been many times decided and

may be regarded as settled law. It is essential to the administration of justice. The courts of the United

States [and Delaware], when called into existence and vested with jurisdiction over any subject, at

once became possessed of the power.  Young v. United States ex rel. Vuitton et Fils, S.A.,

481 U.S. 787, 795, 107 S.Ct. 2124, 2131, 95 L.Ed.2d 740 (1987) ("Young v. United States ").

By virtue of that inherent authority, courts have the

power to impose either civil or criminal sanctions for contempt. Id. The relatively broad civil and

criminal contempt power, that is inherently vested in the judicial branch of government, has been

explained traditionally, as follows:

    Courts independently must be vested with "power to impose silence, respect, and decorum, in their

presence, and submission to their lawful mandates, and ... to preserve themselves and their [judicial]

officers from ... insults...."  United Mine Workers v. Bagwell, 512 U.S. at ---- , 114 S.Ct. at 2559

 (quoting Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227, 5 L.Ed. 242 (1821)).

The inherent contempt power of the Delaware courts and the breadth of its scope are well established.

The General Assembly has provided that no conduct constitutes a crime unless it is made an offense

by the "Criminal Code or by another law." 11 Del.C. § 202(a). In Section 202(b), however, the

General Assembly expressly recognized that subsection (a) did not affect the inherent power of a

court "to employ any sanction authorized by law for the enforcement of an order or a civil judgment

or decree." 11 Del.C. § 202(b) (emphasis added).FN3

FN3. See State v. Barron, Colo.Supr., 677 P.2d 1370, 1373 (1984) (en Banc ). See also In

112 L.Ed.2d 333 (1990) (New Jersey criminal code, "while abolishing common-law crimes, preserves this

    Thus, independent of contempt as a statutory crime, FN4 Delaware courts have the inherent

power to impose criminal sanctions for contempt. Although many constitutional criminal procedural

protections are required when a court invokes its inherent authority to initiate an action for criminal

contempt, those "proceedings are not intended to punish conduct prescribed as harmful by the general

criminal laws." Young v. United States, 481 U.S. at 800, 107 S.Ct. at 2133-34. Rather, "they are

designed to serve the limited purpose of vindicating the authority of the court." Id.

FN4. See 11 Del.C. §§ 1271, 1271A, and 1272.

    Consequently, when the court exercises its inherent contempt authority to commence

a contempt proceeding that is of a criminal nature, it is not a criminal prosecution. Young v.

United States, 481 U.S. at 804, 107 S.Ct. at 2136. FN5 The proceeding is for an offense against the

court, as an institution of public justice. Id. Accordingly, even a court which has no criminal

jurisdiction has the inherent power to impose punishment which is criminal in nature for contempt of

its orders, e.g., the Delaware Court of Chancery. See City of Wilmington v. General Teamsters Local

Union 326, Del.Supr., 321 A.2d 123 (1974).

FN5. See also Ballengee v. State, Fla.App., 144 So.2d 68, 70 (1962) ( "[A] prosecution

for criminal contempt is not in itself a criminal case but a proceeding inherent in the

court. It is sui generis and is not, therefore, a crime."). Accord State v. Martina, Supr.,

135 N.H. 111, 600 A.2d 132, 135 (1991). See State v. Howell, Supr., 80 Conn. 668, 69 A.

1057, 1058 (1908).

    Contempt can be either direct or indirect. Direct contempt occurs in the court's

presence and either interrupts its proceedings or denigrates the respect that is due to the court's

authority. A trial court can often punish direct contempt summarily, either by virtue of its inherent

authority or by statute. United Mine Workers v. Bagwell, 512 U.S. at ---- - ----, 114 S.Ct. at 2559-

2560. See also Pitts v. State, Del.Supr., 421 A.2d 901, 905 (1980).

    The inherent authority of courts to initiate contempt proceedings, however, is not

"limited to the summary punishment of in-court contempts that interfere with the judicial process."

Young v. United States, 481 U.S. at 797, 107 S.Ct. at 2132. Courts have the inherent authority to

initiate proceedings for indirect contempt, albeit not summarily. United Mine Workers v. Bagwell, 512

U.S. at ----, 114 S.Ct. at 2557. Thus, due process mandates that actions to redress in-court (direct) and

out-of-court (indirect) contempts must proceed in a different manner. Young v. United States, 481

U.S. at 799, 107 S.Ct. at 2133. Nevertheless, an inherent action for either direct or indirect contempt

proceeds at the initiation of the court. Id.

     Inherent judicial actions for contempt can be either civil or criminal. The question which

must always be addressed ex ante is: "what type of procedural protections are due before a particular

contempt penalty may be imposed?" United Mine Workers v. Bagwell, 512 U.S. at ---- , 114 S.Ct. at

2557. Contempt sanctions "may be imposed in an ordinary civil proceeding upon notice and an

opportunity to be heard." Id. See Fam.Ct.Civ.R. 70. See also Hicks v. Feiock, 485 U.S. 624, 108 S.Ct.

1423, 99 L.Ed.2d 721 (1988). Where the offense is "serious" or where the fine is more than "petty,"

however, criminal contempt proceedings must meet the State and Federal Constitutional requirements

for the trial and punishment of crimes. Hicks v. Feiock, 485 U.S. at 632, 108 S.Ct. at 1429. Compare

Del. Const. art. I, § 7. See Fam.Ct.Crim.R. 42.

    The proper resolution of DiSabatino's appeal requires an examination of the difference between civil

and criminal contempt. More than two decades ago, this Court noted that "the distinction between

criminal and civil contempt is often cloudy at best." City of Wilmington v. General Teamsters Local

Union 326, Del.Supr., 321 A.2d 123, 125 (1974). Only two years ago, the United States Supreme

Court wrote that, "[a]lthough the procedural contours of the two forms of contempt are well

established, the distinguishing characteristics of civil versus criminal contempts are less clear." United

Mine Workers v. Bagwell, 512 U.S. at ----, 114 S.Ct. at 2557. FN6

FN6. See, Dudley, Getting Beyond the Civil/Criminal Distinction: A New Approach to

complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of

the court."  United Mine Workers v. Bagwell, 512 U.S. at ---- , 114 S.Ct. at 2557 (quoting Gompers v. Buck's Stove

& Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911)). See also Hicks v. Feiock,

485 U.S. at 631- 634, 108 S.Ct. at 1429-31.

    The sanction of imprisonment can be imposed for either civil or criminal

contempt of court. The "paradigmatic coercive, civil contempt sanction" in the form of incarceration:

involves confining a contemnor indefinitely until he complies with an affirmative command such as

an order "to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make

a conveyance." ... Imprisonment for a fixed term similarly is coercive when the contemnor is given

the option of earlier release if he complies.... In these circumstances, the contemnor is able to purge

the contempt and obtain his release by committing an affirmative act, and thus "carries the keys of his

prison in his own pocket."

United Mine Workers v. Bagwell, 512 U.S. at ---- , 114 S.Ct. at 2557 (citations omitted) (quoting

Gompers, 221 U.S. at 442, 31 S.Ct. at 498). See Allen v. Div. of Child Support Enforcement ex rel.

Ware, Del.Supr., 575 A.2d 1176, 1179, n. 5 (1990). FN7 Conversely, a fixed term of imprisonment

is punitive and criminal if it is imposed retrospectively for a past act of disobedience, and cannot be

avoided or abated by subsequent compliance with the court's order. United Mine Workers v. Bagwell,

512 U.S. at ----, 114 S.Ct. at 2558; Hicks v. Feiock, 485 U.S. at 632-633, 108 S.Ct. at 1429-30;

Gompers v. Buck's Stove & Range Co., 221 U.S. at 442-443, 31 S.Ct. at 498.

FN7. This Court has held that an obligor may be incarcerated upon a finding of "civil

contempt for willfully violating a court order to pay child support...." Allen v. Division of

Child Support Enforcement ex rel. Ware, Del.Supr., 575 A.2d 1176, 1179 n. 5 (1990).

    The dichotomy between civil and criminal contempt also extends to fines

as a sanction. A fine is "considered civil and remedial" if it either "coerce[s] the defendant into

compliance with the court's order, [or] ... compensate[s] the complainant for losses sustained." United

Mine Workers v. Bagwell, 512 U.S. at ----, 114 S.Ct. at 2558 (quoting United States v. United Mine

Workers of America, 330 U.S. 258, 303-304, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947)). If a fine is not

compensatory, "it is civil only if the contemnor is afforded an opportunity to purge the obligation by

compliance." United Mine Workers v. Bagwell, 512 U.S. at ----, 114 S.Ct. at 2558. See also Hicks v.

Feiock, 485 U.S. at 632, 108 S.Ct. at 1429. Consequently, an unconditional fine "totalling even as

little as $50 announced after a finding of contempt is criminal if the contemnor has no subsequent

opportunity to reduce or avoid the fine through compliance." United Mine Workers v. Bagwell, 512

U.S. at ----, 114 S.Ct. at 2558 (citing Penfield Co. v. SEC, 330 U.S. 585, 67 S.Ct. 918, 91 L.Ed. 1117

(1947)).

    The question for this Court to resolve is almost identical to the one which was presented in

Bagwell: are the non-compensatory assessments or fines imposed upon DiSabatino coercive civil or

criminal sanctions? FN8 In this case, after levying the initial $1500 sanction, the Family Court

advised DiSabatino that assessment, and each one thereafter, would be doubled for subsequent

violations. We note, as in Bagwell, the fact that the sanctions imposed against DiSabatino were

announced in advance did not render them coercive and civil, as a matter of law. United Mine

Workers v. Bagwell, 512 U.S. at ---- - ---- , 114 S.Ct. at 2561-2562.

criminal, are equally applicable in this matter. First, DiSabatino's conduct "did not occur in the

[Family] court's presence or otherwise implicate the court's ability to maintain order and adjudicate

the proceedings before it." United Mine Workers v. Bagwell, 512 U.S. at ---- , 114 S.Ct. at 2562.

Second, DiSabatino's contumacy did not "involve simple affirmative acts, such as the paradigmatic

civil contempts examined in Gompers." Id.

    Instead, the Family Court levied assessments against DiSabatino for "widespread, ongoing, out-ofcourt

violations of [the automatic] injunction" and its later orders. United Mine Workers v. Bagwell,

512 U.S. at ----, 114 S.Ct. at 2562. Thus, as in Bagwell, the Family Court was policing DiSabatino's

"compliance with an entire code of conduct that the court had itself imposed." Id. In Bagwell, it was

determined that "under such circumstances," the defendants were entitled to all of the rights afforded

to a defendant in a criminal proceeding. Id.

    In particular, it was determined that the defendants were "entitled to a criminal jury trial" because

"disinterested factfinding and even-handed adjudication were essential." Id. The United States

Supreme Court has stated that the procedural protection afforded by jury trial is of heightened

importance when a court exercises its inherent criminal contempt powers. Bloom v. Illinois, 391 U.S.

194, 201-202, 88 S.Ct. 1477, 1481-82, 20 L.Ed.2d 522 (1968). The ratio decidendi for that statement

was a recognition that allegations of a "rejection of judicial authority" may "strike[ ] at the most

vulnerable and human qualities of a judge's temperament." Id.

    The proceedings and the sanctions in this case were criminal. The sanctions imposed upon DiSabatino

by the Family Court were criminal for two separate reasons: the assessments were not compensatory

and the assessments were not purgeable by subsequent compliance. DiSabatino was entitled to the full

panoply of rights that are guaranteed in a criminal proceeding for two other reasons: the assessments

were serious, not petty, and the origin of each of the proceedings was DiSabatino's on-going, out-ofcourt

violations of a judicially mandated course of conduct. United Mine Workers v. Bagwell, 512

U.S. at ----, 114 S.Ct. at 2562.

    The record reflects that the Family Court denied DiSabatino the constitutional rights which are

guaranteed in a criminal proceeding. Accordingly, the judgments of the Family Court must be

reversed. It is necessary, therefore, to address the nature and manner of the proceedings that should be

conducted when this matter is remanded to the Family Court.

    The General Assembly has acknowledged the inherent contempt powers of all Delaware

Courts. 11 Del.C. § 202(b). The General Assembly has also expressly conferred upon the Family

Court statutory authority to "[d]etermine and punish civil and criminal contempt." 10 Del.C. § 925(3).

FN9 The Family Court has no authority, however, to conduct a jury trial. FN10 Clements v.

Family Court, Del.Supr., 401 A.2d 72, 73 (1979).

FN9. Further, 10 Del.C. § 925(9) empowers the Family Court to "enforce judgment in

any proceeding before the Court," and 10 Del.C. § 925(15) enables the Court to "enter

such orders against any party ... as the principles of equity appear to require." See also

Mark T. v. Judith T., Del.Supr., 430 A.2d 792, 793 (1981); Walker v. State, Del.Super.,

548 A.2d 492, 496 (1987), aff'd., Del.Supr., 547 A.2d 131 (1988).

FN10. The General Assembly could confer authority on the Family Court to conduct jury

trials in criminal matters. Del. Const. art. IV, § 28.

    Notwithstanding a defendant's right to a jury trial in a serious criminal contempt proceeding,

and the fact that the Family Court is not a "jury court," the Family Court is not divested of either its

inherent or statutory criminal contempt jurisdiction. The Family Court may conduct criminal

contempt proceedings so long as the defendant's right to a jury trial is preserved. Clements v. Family

Court, Del.Supr., 401 A.2d 72 (1979). Even when a defendant has a constitutional right to a trial by

jury, a bench trial in Family Court must be conducted first. FN11 Id.  Upon conviction in the

Family Court, however, the defendant does have the right to an appeal de novo to the Superior Court

and, to elect to have a jury trial. Id. See Evans v. Justice of the Peace Court No. 19, Del.Supr., 652

A.2d 574 (1995).

FN11. In examining the policy issues of its "two -tier" holding, this Court stated:

To permit defendant a trial by court in the Family Court, followed by a trial de novo

before a jury upon conviction may appear to fly in the face of judicial economy and the

desirability of the one trial one appeal concept. It also places time and cost burdens upon

the defendant, the possibility of a more severe sentence upon conviction after a trial de

novo, and the psychological and physical side effects upon a defendant caused by the

delay of a trial de novo. But on balance, we are satisfied that the burdens are less than the

benefits derived by the defendant from an expeditious and normally more private

disposition of the case in the

Family Court....

a proceeding for an action for indirect criminal contempt:

FN12. Superior Court Criminal Rule 42 is virtually identical to the Family Court rule

regarding prosecution of criminal contempt. In Re Butler, Del.Supr., 609 A.2d 1080

(1992). The Delaware Rules of Criminal Procedure are based upon, and substantially the

same as, the Federal Rules of Civil Procedure.

prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time

for the preparation of the defense, and shall state the essential facts constituting the criminal contempt

charged and describe it as such. The notice shall be given orally by the judge or master in open court

in the presence of the person charged or on application of the Attorney General or of an attorney

appointed by the Court for that purpose by an order to show cause or an order of apprehension. The

person charged is entitled to admission to bail as provided in these Rules.

    (3) If the contempt charged involves disrespect to or criticism of a judge or master, that judge or

master is disqualified from presiding at the trial or hearing except with the consent of the person

charged.

    (4) Upon a verdict or finding of guilt, the Court shall enter an order fixing the punishment.

Fam.Ct.Crim.R. 42(b). Compare Fam.Ct.Civ.R. 70.

    Family Court Criminal Rule 42(b) provides that one way notice can be given is by "an attorney

appointed by the Court for that purpose by an order to show cause...." Fam.Ct.Crim.R. 42(b). Since

courts possess "inherent authority to initiate contempt proceedings for disobedience to their orders,"

that authority "necessarily encompasses the ability to appoint a private attorney to prosecute the

contempt." Young v. United States, 481 U.S. at 793, 107 S.Ct. at 2130. Ordinarily, however, a court

"should first request the appropriate prosecuting authority to prosecute contempt actions, and should

appoint a private prosecutor only if that request is denied. Such a procedure ensures that the court will

exercise its inherent power of self-protection only as a last resort," just as it usually considers

enforcing compliance with its orders through the imposition of civil contempt before it utilizes

criminal contempt as a sanction. Young v. United States, 481 U.S. at 801-804, 107 S.Ct. at 2134-36.FN13

FN13. In Young, the United States Supreme Court explained that "[t]he ability to punish

disobedience to judicial orders is regarded as essential to ensuring that the Judiciary has a

means to vindicate its own authority without complete dependence on the other

branches.... Courts cannot be at the mercy of another branch in deciding whether such

proceedings should be initiated." Young v. United States, 481 U.S. at 796, 107 S.Ct. at

     A criminal contempt proceeding that arises out of civil litigation is "between the

public and the defendant, and [is] not a part of the original cause." Young v. United States, 481 U.S. at

804, 107 S.Ct. at 2136. Consequently, in the event that a private *1353 attorney is appointed to

prosecute a criminal contempt which arises from a civil proceeding, that attorney "should be as

disinterested as a public prosecutor who undertakes such a prosecution." Id. Therefore, the attorney

for a party that is the beneficiary of a court order in a civil proceeding "may not be appointed as a

prosecutor in a [criminal] contempt action alleging a violation of that order." Young v. United States,

481 U.S. at 809, 107 S.Ct. at 2138.

in this appeal was controlled by the holding in Bagwell, some of the concluding observations of the

United States Supreme Court in that opinion are appropriately restated here. United Mine Workers v.

Bagwell, 512 U.S. at ---- - ----, 114 S.Ct. at 2562-2563. In particular, we note the precedent

established in Bagwell and those precedents which remained unchanged. Id.

    The application of the holding in Bagwell to the facts of this case results in some procedural

constraints upon the Family Court's ability to sanction indirect contempts of certain injunctions,

through the imposition of serious noncompensatory assessments or fines. Id. Left unaltered, however,

is the longstanding authority of the Family Court to adjudicate some direct criminal contempts

summarily, and to enter compensatory awards or purgeable fines for contempts through civil

proceedings. FN14 Although any indirect contempt cannot be adjudicated summarily, the

paradigmatic civil contempts and certain other indirect contempts remain sanctionable through civil

proceedings. United Mine Workers v. Bagwell, 512 U.S. at ----, 114 S.Ct. at 2560. Accord, Schmidt v.

Schmidt, Del.Supr., 610 A.2d 1374 (1992).

FN14. Compensatory damages in a Family Court proceeding might include property

damage, compensation for lost wages, pain and suffering and child care expenses. One

court has recently awarded compensatory damages in a domestic proceeding where the

amount was not clearly quantifiable:

[W]here a party provides the trial court with a reasonable basis for concluding that a

compensable injury may have been suffered as a result of a willful violation of a

contempt order, it is within the court's discretion to consider compensation for the injury,

(1988). We also recognize that the conduct of DiSabatino showed such contempt for the orders of the

Family Court, that the Family Court was required to act. Unfortunately, the sanctions imposed did not

fully comply with what is permissible under United Mine Workers v. Bagwell, 512 U.S. 821, 114

S.Ct. 2552, 129 L.Ed.2d 642 (1994).

    The judgments of the Family Court are reversed.
 
This matter is remanded for further proceedings in accordance with this opinion. FN15

FN15. Salicete's Motion for Sanctions by this Court and her alternative Motion to

Remand are moot in this Court. This Court will issue a special form of mandate which

vests jurisdiction over this matter immediately in the Family Court. Jurisdiction is

retained in this Court only for the purpose of affording the parties an opportunity to file a

Motion for Reargument.