August 22, 2017 § Leave a comment
What you ask for in your pleadings will determine what the judge can award. So you need to be sure you’re asking for the right thing.
A recent example is the case of Fox v. Fox, decided July 18, 2017, by the COA. At the trial level, the judge found Tasha Fox in civil and criminal contempt for refusing visitation to her ex, William. Judge Fair’s succinct opinion for the COA reversed the chancellor’s ruling:
¶6. The record reflects that the chancellor found Tasha to be in both civil and criminal contempt for her refusal to allow William visitation under the April 2015 order. The chancellor sentenced Tasha to three days’ imprisonment, suspended on the condition that she surrender the child to William for a two-week visitation in July 2016. Tasha does not contest the finding of civil contempt.
¶7. On this point, we agree: William’s petition only alleged civil contempt, and Tasha was not afforded any of the procedural protections required to support a conviction of criminal contempt. See In re McDonald, 98 So. 3d 1040, 1042-45 (¶¶4-12) (Miss. 2012). We vacate the chancellor’s finding of criminal contempt.
Since William had prayed only for a finding of civil contempt, that was all he should have gotten. Tasha was not put on notice by the pleadings that she was in jeopardy of a criminal contempt ruling at the hearing, and notice was required. Here are the basics that you need to know about contempt:
- Civil contempt is designed to coerce a party into complying with a court order. The burden of proving civil contempt is by clear and convincing evidence. In civil contempt, the guilty party is said to “hold the keys to the jail,” because he or she can gain release immediately simply by complying with the court’s orders. The commitment order typically says that the defendant is jailed until he or she purges him/herself of contempt by complying.
- Criminal contempt is punitive, and is intended to punish non-compliance. The burden necessary to prove criminal contempt is beyond a reasonable doubt. Incarceration may not exceed 30 days for each offense. MCA 9-1-17.
- Direct criminal contempt is based on actions that occur in the presence of the judge, and may be dealt with by the judge summarily and immediately, and without notice. An example might be a party cussing out the judge to her face in open court. Incarceration may not exceed 30 days for each offense.
- Constructive criminal contempt is contemptuous conduct that occurs outside the presence of the judge. It requires a pleading specifying the conduct complained of, notice, and an opportunity to be heard. If the judge initiates the action, the judge must recuse and allow the matter to be heard by another judge. See McDonald, supra.
In Tasha’s case, civil contempt would probably not have accomplished much. After the judge announced his findings, she could simply have said that she was ready to comply, and that would have ended that. This was probably a chronic problem that the chancellor was trying to stop by sending Tasha a memorable message.
Had Tasha’s attorney thought it through, he might have realized that it’s best to ask always for civil and criminal contempt. That way, the judge has the latitude to address the problem in the most effective way.
September 26, 2012 § 7 Comments
Last week’s Corr v. State decision from the MSSC is a reminder that there are some intricacies to contempt that we should all be aware of as we go about our business in chancery court.
Contempt can be either civil, or criminal, or a combination of both.
- Civil contempt is for the benefit of the complaining party, and its purpose is remedial. An example is where the respondent owes child support and is jailed until he can come up with what he owes. The remedy is coercive and is intended to produce compliance. The burden of proof is by a preponderance of evidence.
- Criminal contempt is intended to vindicate the authority of the court. The sentence is punitive.
- The two types of contempt may be used in combination, as where the court orders the respondent jailed until he pays the amount due, and the court sentences him to thirty days as a punishment for non-compliance.
Civil contempt may be tried on seven days’ notice by Rule 81 summons.
Criminal contempt under Mississippi law may be either direct or indirect. The distinction determines what kind of due process notice is required.
- Direct criminal contempt involves words or actions in the presence of the court that are an affront to the authority or dignity of the court. Conduct such as insulting language or behavior, resistance to the court’s authority, disruption of the proceedings and the like may be treated as direct contempt. The court may act instantly to punish the contemnor because no evidence other than the judge’s own perception is necessary to sustain sanctions. In the alternative, the court may wait until later in the proceedings, at a break or at the end of a hearing, to address the misconduct.
- Indirect, or constructive, criminal contempt is contemptuous conduct that takes place outside the presence of the court which resists the court’s authority and tends to obstruct, interrupt or embarrass the administration of justice.
Direct contempt may be dealt with immediately, summarily, and without further notice to the contemnor. Some authorities suggest that, if the court delays action, the judge should recuse herself if the contempt is based on personal attacks.
In cases of indirect, or constructive, criminal contempt, the defendant: (1) is presumed innocent until proven guilty beyond a reasonable doubt; (2) is entitled to resonable notice of the nature and cause of the accusation; (3) has a right to be heard; (4) has a right to retain counsel; (5) has the right to call and cross-examine witnesses; (6) has the right to an unbiased judge; (7) has the right to a jury trial; and (8) has the right against self-incrimination. Dennis v. Dennis, 824 So.2d 604, 609 (Miss. 2002). If the judge, as in Corr, is substantially involved in the prosecution, as where he is instrumental in initiating the proceeding, or where he acts as prosecutor and judge, he should recuse himself and have the actual contempt hearing conducted by another judge.
When you draft contempt pleadings, give some thought to what it is you are trying to accomplish. If all you are trying to do is to get the ex-husband to pay his child support, civil contempt may do the job for you. It only requires a preponderance of evidence, as opposed to the heavier burden for criminal contempt. If you insist on criminal contempt, look carefully at Dennis and its requirements. Do you really want to strap them on? Are they really in your client’s best interest? When you insist on criminal contempt, you are affording the defendant Fifth Amendment self-incrimination protection, the higher burden of proof, and even right to a jury trial (this applies in cases where the aggregation of penalties would result in a sentence that would require Sixth Amendment protection. McGowan v. State, 258 So.2d 810, 802 (Miss. 1972); Purvis v. Purvis, 657 So.2d 794, 798 (Miss. 1995); Walls v. Spell, 722 so.2d 566, 574 (Miss. 1998)).
If you simply can not resist the urge to rattle the incarceration saber, be sure to acquaint yourself with the US Supreme Court decision in Turner v. Rogers.
June 22, 2011 § 4 Comments
By Ben McMurtray
Yesterday the United States Supreme Court handed down its decision in the case of Turner v. Rogers. The question before the court was whether a respondent in a civil contempt proceeding, namely someone who was being threatened with jail time for failure to pay child support, has a right to have counsel provided to him. The Court held that “the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year).” The Court went on to hold that “in particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards. . . .”
The practical effect of this ruling has actually very little to do with the right to counsel. Instead, the focus of the courts and attorneys should be on the “alternative procedural safeguards” mentioned by the Court. The Supreme Court identified four such safeguards in its opinion, which, if employed together, can “significantly reduce the risk of an erroneous deprivation of liberty” and therefore negate the need to appoint counsel to an indigent civil defendant. These safeguards are:
- Notice to the Defendant that his “ability to pay” (the child support) is a critical issue in the contempt proceeding;
- The use of a form (or the equivalent) to elicit relevant financial information;
- An opportunity at the hearing for the defendant to respond to statements and questions about his financial status (e.g., those triggered by his responses on the form);
- An express finding by the court that the defendant has the ability to pay (before finding him in contempt).
This list is not inclusive of all possible safeguards that a state could employ. In fact, the Court stated that past cases “suggest . . . that sometimes assistance other than purely legal assistance (here, say, that of a neutral social worker) can prove constitutionally sufficient.”
Turner, though, is quite limited in its scope. The Court does not address several potential situations in this ruling, so the issue of whether counsel should be provided to indigent civil defendants is far from dead. The Court did not say whether counsel should be provided when the party seeking the child support is represented by an attorney. Instead, it was quite careful to limit the opinion to cases where the person seeking the child support was also represented pro se. Furthermore, the Court explicitly held that this opinion does “not address civil contempt proceedings where the underlying child support payment is owed to the State, for example, for reimbursement of welfare funds paid to the parent with custody.” Also, the Court did not address what due process requires in an “unusually complex” case where a defendant “can fairly be represented only by a trained advocate.” In each of these instances, the holding suggests that the Court would be far more likely to hold that an attorney must be provided to an indigent civil defendant if the other side is represented by counsel.
So how does Turner v. Rogers affect one’s practice? When a defendant is served with process in a child support action, just include something telling him that his ability to pay is an issue at the hearing. Go ahead and attach some kind of a financial disclosure form too so that the court has all the information it needs to determine if the defendant is able to pay. Make sure the defendant has a chance to talk about his financial statement and any testimony deriving therefrom during his hearing. Finally if the court finds him in contempt, ensure that the judge makes a finding that the defendant has the ability to pay.
[Ben McMurtray is an Ole Miss law student who served as an intern in the 12th District this summer. His internship has involved learning about the inner workings of the courts, how lawyers operate out here in the real world, and how different judges handle things. He has observed trials, docket calls, motion hearings, chamber conferences and probate matters in Lauderdale and Clarke Counties, and he has sat in with Judge Clark in Scott County and Judge Fenwick in Neshoba. He even sat at defense counsel’s table in a rape trial in Lauderdale Circuit in which the defendant was acquitted. He observed an adjudicatory hearing in Lauderdale Youth Court. He has helped inventory the probate docket in Clarke County. This is his last week, and we will miss him when he is gone, but we wish him the best in the rest of law school and his legal career.]