2009-CA-001025-MR
Published: Affirmed
County: Crittenden
2009-CA-001025-MR
Published: Affirmed
County: Crittenden
Wife appealed from TC order holding her in contempt for failing to comply with divorce decree and order, arguing that she was denied due process and TC abused its discretion by failing to make specific finding that she had ability to comply with order; CA entered show cause order as to why Wife’s appeal should not be dismissed for Wife’s failure to name an indispensable party, the trial judge.
FACTS:
Parties’ MSA provided that Ex-Wife was to pay two separate bills. Ex-Wife failed to pay the bills and the creditors began to pursue Ex-Husband for payment. Ex-Husband filed motion for contempt and for restraining order against Ex-Wife, asking TC to restrain Ex-Wife from spending a Social Security back payment award which would be forthcoming to her, until the bills were fully paid or until a hearing could he held. TC granted restraining order motion and scheduled hearing on contempt motion. At the hearing, Ex-Wife claimed that she had only received $3,000 of the $20,000 Social Security payments and that those funds were needed to pay her medical bills. TC scheduled another hearing and instructed Ex-Wife to provide a letter from her disability attorney with the status of her claim and a letter from the creditors regarding what amounts of payments they would accept. At the subsequent hearing, she provided a letter from the Social Security Administration re the status of her claim, but provided nothing from the creditor. TC scheduled another hearing for Ex-Wife to show cause why she should not be held in contempt. At the 3rd hearing, she provided inconsistent testimony as to the amount of her monthly expenses, as to how much income she had outside of the back payments, and as to when she would receive her back pay installment payments (including disclosing a payment that was not but should have been disclosed to TC during 1st hearing). Ex-Wife stated she did not think she had to use Social Security payments to pay debts because she had other bills in her name. She also admitted taking 2 vacations, and that she funded one with her Social Security money. TC held her in contempt, imposing a 180 day sentence, probated on condition that she not spend any further back payment checks, that she give H’s counsel authorization to contact Social Security re her back payment checks and that she notify him upon receipt of the next check, and that she keep the court informed of her address and telephone number.
Ex-Wife appealed, asking that the matter be treated as a criminal matter with expedited briefing; CA denied motion to treat as criminal matter but granted expedited briefing motion; CA also issued show-cause order to dismiss for failure to name an indispensable party, the trial judge.
ANALYSIS:
Failure to name judge as indispensable party:
CA noted that there is no rule or requirement to name a judge in a contempt appeal; but even if there was, as in a writ action, it would not be fatal to the action to fail to name the judge.
Civil v. Criminal Contempt:
Civil contempt is failure to follow court’s orders in a civil action for the benefit of opposing party and its intended effect is to coerce compliance with orders; criminal contempt is party’s action that offends TC by obstructing justice or bringing disrespect to TC and its intended effect is to punish disrespect. CA held that TC held Ex-Wife in civil, not criminal, contempt.
Abuse of Discretion for lack of due process and failing to make a specific finding that Ex-Wife had ability to conform to Order:
CA held that TC did not abuse its discretion as Ex-Wife was in contempt in part for failure to bring documentation to court, which had nothing to do with her ability to pay; her counsel did not raise the defense of indigence; and even if he had, failure to make findings thereon would have been harmless as the record did not support such a defense.
TC affirmed.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates
