Duell v. Duell, 9699.

• Decision Date: 16 May 1949
• Docket Number: No. 9699.,9699.
• Citation: 178 F.2d 683
• Parties: DUELL v. DUELL.
• Court: U.S. Court of Appeals — District of Columbia Circuit

178 F.2d 683 (1949)

DUELL v. DUELL.

No. 9699.

United States Court of Appeals District of Columbia Circuit.

Argued November 23, 1948.

Decided May 16, 1949.

Mr. Milton V. Freeman, Washington, D. C., with whom Messrs. Thurman Arnold, Harry L. Ryan, Jr., and Roger J. Whiteford, Washington, D. C., were on the brief, for appellant.

Mr. Joseph G. Dondero, Washington, D. C., with whom Messrs. C. F. Rothenburg and Charles D. Hamel, Washington, D. C., were on the brief, for appellee.

Before STEPHENS, Chief Judge and WILBUR K. MILLER and PROCTOR, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

Charles H. Duell, Jr., appeals from a judgment of the United States District Court for the District of Columbia which, because he had been held in contempt of that court, struck his answer from the record and awarded judgment against him for $794,762.50, as though he were in default. The action was taken in a suit brought by his former wife in 1942 for sums alleged to be due under the terms of a separate maintenance contract which had been executed in 1923. The agreement was that he should pay her $1,500 per month for life and, in addition, $50,000 in ten equal monthly instalments; provided, however, if his worth and income were, respectively, less than three times the lump sum and the monthly payments, those payments should be reduced accordingly.

Among a number of defenses, his answer pleaded that he had not enjoyed sufficient income to require him to make further payments under the contract. The case was referred to the court's auditor to determine the appellant's worth and annual income.

On June 9, 1943, Duell appeared before the auditor, without counsel, and submitted to examination. He was questioned concerning his income year by year from 1924 to 1943. During that period, he said, his income had not been large enough to require him to file federal income tax returns except in the years 1936, 1941 and 1942, and submitted to the auditor copies of his federal returns for the last two of the three years for which returns had been made. He was ordered to file copies of all income tax returns, a "breakdown" of his expenditures for 1941 and 1942, and the books and records of the Brisbane Box Corporation, of which he was president. After a number of continuances, the hearing was reconvened on February 27, 1945. Duell did not attend but his counsel explained his absence and filed a copy of his income tax return for 1936. There was filed a letter from the Brisbane company's accountants advising that from its organization in 1935 to June 30, 1942, the corporation had claimed deductions for compensation paid to Duell only for the last two fiscal years in the period mentioned. There was also presented a letter from the secretary of the corporation declining to permit Duell to borrow its books and records and pointing out that since September, 1943, he had had no connection with the company.

Pursuant to the appellee's motion, on November 9, 1945, the court

"* * * Ordered, that the defendant, Charles H. Duell, Jr., personally appear on a day or days to be fixed by the Auditor to be further examined * * * and the defendant is further

"Ordered, to submit to the Auditor whatever records, documents or other data deemed necessary by the Auditor * * *."

The parties agreed upon February 20, 1946, as the date of the hearing. Duell did not attend but his counsel was present and attempted to explain his absence. The auditor thereupon reported to the court that "Since the order of reference could not be executed without taking the testimony of the defendant", he had closed the hearing. Mrs. Duell then moved that the appellant be held in contempt and pursuant to that motion, and on March 27, 1946, the District Court adjudged that Duell was in contempt and committed him to jail for thirty days. He has not been apprehended because of his absence from the District of Columbia.

On June 14, 1947, Duell's counsel took his deposition in New York, at which taking appellee's counsel cross-examined. When the case came on for hearing on the merits on June 16, 1947, the trial judge said:

"On March 27, 1946, this court adjudicated the defendant in contempt for failing to obey the order of this court dated November 9, 1945. The defendant has not purged himself of that contempt, and he is still in contempt. The case has come on for trial.

"Under the circumstances, the Court will strike from the record his answer, and the case will be proceeded with as a case of default."

So the appellant's answer was stricken and the appellee was awarded judgment against him for $794,762.50, together with costs.

The appellant contends the contempt order was void on its face and says the District Court erred in striking his answer and entering judgment as though by default. The appellee agrees that "The fundamental issue involved * * * is whether * * the District Court * * * erred in striking the appellant's answer from the record and in proceeding with the case as in a case of default."

If the contempt order was invalid, then, for that reason if for no other, it was error to strike the answer and to enter a default judgment. Our consideration of the order's validity is facilitated by the agreement of the parties¹ that the proceeding here was for civil contempt.

A commitment for civil contempt is intended, not to punish, but to coerce the defendant. Since he can discharge himself by doing what he had previously refused to do, it is said he carries the key to his prison in his own pocket.² On the other hand, a sentence for criminal contempt is not intended to coerce. It is pure punishment to vindicate the court's authority and dignity, and it cannot be ended or shortened by any act of the defendant.

We agree with the parties that the contempt proceeding in this case was civil in character, for it was not "* * * a proceeding with the court, or, more properly the Government, on one side and the defendants on the other. On the contrary, the contempt proceedings were instituted, entitled, tried, and up to the moment of sentence treated as a part of the original cause * * *."³

Since "* * * imprisonment for civil contempt is ordered where the defendant has refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in its character", it has been authoritatively said that "The decree in such cases is that the defendant stand committed unless and until he performs the affirmative act required by the court's order." It necessarily follows that, if the order of commitment furnishes the defendant no key and "If * * * the sentence was wholly punitive, it could have been properly imposed only in a proceeding instituted and tried as for criminal contempt."⁴

The appellant contends, as we have said, that the order of which he complains is an unqualified commitment to jail for thirty days and provides no way by which he may unlock the door of his prison by doing the thing which he had been ordered to do. Whether this contention is sound depends, of course, upon the meaning of the order of commitment, which we reproduce:

"This matter having come on for hearing upon the motion filed herein on March 11, 1946, to adjudicate defendant in contempt, it is by the Court this 27th day of March, 1946

"Adjudged and ordered that the defendant, Charles H. Duell Jr., is in contempt of the Court because of his failure to have obeyed the order of November 9, 1945, in the above-entitled cause, and that the United States Marshal in and for the District of Columbia is hereby directed to take into his custody the person of the defendant, Charles H. Duell, Jr., and commit him to the Washington Asylum and Jail for a period of Thirty days or until such earlier time as he shall purge himself of his contempt by paying to the plaintiff or her attorney of record the sum of ...... or until further order of the Court hereon."

Consideration of this order is somewhat easier when it is understood that it was prepared by filling in the blanks of a printed form of commitment for contempt which is in general use in the District Court in cases where husbands have failed to pay alimony awarded by the court. Being designed for such use in civil contempt proceedings, the form appropriately hands to the defendant the key to his prison which he may use when he pays to his wife or her attorney the designated sum. The form was not appropriate for use in this case, however, as the appellant could not have purged himself of contempt by paying a sum of money, but only by appearing before the auditor and submitting the required data. Yet the form was used, and the blank space in it for the insertion of a definite sum to be paid by way of purging was not filled. The result is the order committed Duell for thirty days or "until such earlier time as he shall purge himself of such contempt" by paying nothing to the plaintiff or her attorney. The attempted qualification is quite meaningless and the words which follow the committing language do not condition the absolute, unqualified sentence of thirty days. The same is true of the closing words of the printed form, "or until further order of the Court hereon", for those words show that the court, not the defendant, was carrying the key. It is generally said that in civil contempt proceedings "* * * compliance with the order avoids the punishment",⁵ and not at all that compliance with the order may move the court to enter a further order vacating the commitment.

The record shows the unconditional nature of Duell's sentence to have been recognized by the appellee and by the court itself. Duell petitioned the court to modify the order by including in it language which would permit him to free himself from the sentence by appearing in person before the auditor. His petition was vigorously opposed by the appellee and, as it was not granted, it was in effect denied by the court. Indeed, the District Court clearly...