The Fog of Contempt

January 15, 2014 § Leave a comment

In the press of courtroom battle, it sometimes happens that things get obscured, as in war, by the fog of all that is transpiring, so that it becomes difficult to appreciate things in their proper capacity.

I touched on this concept recently in a post dealing with contempt in its various, somwhat fluid incarnations.

On January 7, 2013, a panel of the COA had occasion to address the fog of contempt in the case of Zebert v. Guardianship of Baker.

Mr. Zebert, a lawyer, was appointed in 2000 to serve as guardian of the person and estate of a minor. Accountings were filed in each year from 2000 through 2007, but no accounting was filed in 2008 for the period from October, 2007, through September 30, 2008. The court issued a show-cause order and subsequently granted several continuances until Zebert himself asked to be relieved as guardian a year after the accounting had been due. The substitution, however, did not relieve Zebert of the duty to account for his period of responsibility.

Zebert filed an incomplete accounting, and the court held three more show-cause hearings, culminating in an adjudication of contempt and order for Zebert’s incarceration that the court suspended to allow the attorney time to get the accountings together. Zebert then filed a partial accounting disclosing at long last that he had made unapproved disbursements from the guardianship account, including unsecured loans to third parties, totalling more than $130,000, and reducing the assets of the estate to around $6,500.

The chancellor found Zebert in contempt and ordered him to be jailed until he purges himself of contempt. The adjudication was one of civil contempt.

Zebert appealed, complaining that his incarceration was criminal in nature, not civil, and that it was error for the court not to charge him formally, issue a summons, and have the matter heard by another judge.

The COA’s decision is of interest for the contrasting views between the majority, which held that Zebert’s contempt was civil because he was being required to provide a proper accounting, and which affirmed the chancellor, and the dissent by Judge Griffis, which agreed with Zebert that he is being punished criminally, and not being subjected to the coercive power of the court. I commend it to your reading because it illustrates how the same set of contempt facts can be seen by different people in a different light. The fog of contempt, if you will.

Another reason to read this decision is that it once again underscores why chancellors are getting increasingly intolerant of delinquent accountings, excuses, clueless lawyers, and malfunctioning and misfunctioning fiduciaries.

It will be interesting to see what becomes of this case on a request for rehearing or cert.

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