Morgan v. Foretich

Decision Date21 August 1989
Docket NumberNo. 88-1599.,88-1599.
Citation564 A.2d 1
PartiesJean Elizabeth MORGAN, Appellant, v. Eric A. FORETICH, Appellee.
CourtD.C. Court of Appeals

Stephen H. Sachs, with whom Juanita A. Crowley, Adrian N. Roe, John Vanderstar, Lyle Jeffrey Pash, and G. Allen Dale, Washington, D.C., were on the brief, for appellant.

Elaine Mittleman, Falls Church, Va., for appellee.

Frederick D. Cooke, Jr., Corp. Counsel at the time the memorandum was filed, Charles L. Reischel, Deputy Corp. Counsel, and Lutz Alexander Prager, Asst. Deputy Corp. Counsel, Washington, D.C., submitted a memorandum as Friend of the Court.

Before MACK, FERREN, and BELSON, Associate Judges.

Order vacating opinions and sua sponte directing that the case be scheduled for rehearing en banc at p. 20.

FERREN, Associate Judge:

In this unfortunate dispute over child custody and visitation, Dr. Jean Elizabeth Morgan has hidden her minor daughter from the court and from the child's father, Morgan's former husband, Dr. Eric A. Foretich. As a consequence, Morgan has been in jail for over twenty-three months — since August 28, 1987 — for civil contempt of court. She appeals from a trial court order of December 16, 1988, denying her motion for release (filed September 22, 1988). Morgan does not seek to relitigate this court's ruling that her confinement for contempt initially was lawful. See Morgan v. Foretich, 546 A.2d 407 (D.C. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 790, 102 L.Ed.2d 781 (1989) (Morgan III). But she argued in the trial court, and stresses again on appeal, that her continued confinement violates her right to due process under the fifth amendment.

More specifically, Morgan contends that although jailing for civil contempt is a legitimate, coercive measure, it becomes punitive once there is no realistic possibility that it will induce compliance with a court order. Morgan stresses that she will never comply with the court's order to produce her child because she is determined to protect the child from Foretich, who Morgan claims has sexually abused their daughter. Morgan argues that her incarceration, accordingly, has become punitive, and that further punishment for hiding her child can be justified only if she is duly convicted of criminal contempt or some other crime.

The trial court, after hearings and oral argument, agreed with Morgan's understanding of the law but denied the motion, concluding on December 15, 1988, that despite incarceration for sixteen months, Morgan had not sustained her burden to show there was no "realistic possibility or substantial likelihood" that continued confinement would cause her to surrender her daughter. After oral argument on Morgan's expedited appeal, we remanded the record on May 26, 1989, for supplemental findings and conclusions "based solely on relevant facts and circumstances occurring in the period after December 15, 1988." The trial court on June 19, 1989, after further hearings and oral argument, again concluded that Morgan's incarceration for civil contempt was still properly coercive, not punitive — that Morgan again had failed to carry her burden to show that, despite incarceration, "there is no reasonable possibility of compliance with the outstanding order to produce her child."

We have reviewed the record, including the trial court's findings and conclusions of December 16, 1988, and June 19, 1989. We conclude the trial court's rulings are not supported by the record. We therefore must reverse and remand with an order to release Morgan from confinement.

In doing so, we recognize that the child's best interests — while ultimately the controlling issue in the domestic relations proceeding over custody and visitation — cannot be the governing consideration in a civil contempt case that arises out of such a proceeding. Nor is vindication of the trial court's authority ultimately at stake here. Important as these concerns are — and we believe that few can be more important in a society with laws intended to protect children from abusive parents — there is another concern that must prevail in this particular proceeding: due process of law. Irrespective of context, once the civil contempt power is shown to have failed in its intended purpose — and that failure is manifest on this record — the court must release the contemnor from jail. The trial court and the prosecuting authorities, however, are not without recourse. They may turn to criminal sanctions for anyone, such as Morgan, who has taken the law into her own hands. The court, for example, may initiate a proceeding for criminal contempt subject to the right to a jury trial before incarceration may be ordered for a term exceeding six months.

We elaborate our ruling below.

I.

In late 1984, the trial court awarded Morgan custody of her minor daughter and ordered liberal visitation rights for Foretich. In early 1985, Morgan alleged that Foretich was sexually abusing the child. In November 1985, the trial court held hearings on these allegations and related motions by both parties in connection with custody and visitation. In December 1985, the court denied all the motions except for a minor change in Foretich's visitation rights. In February 1986, Morgan began to deny Foretich the right to visit his child. In response to more motions, the trial court concluded in July 1986 that Morgan had failed to prove by a preponderance of the evidence that Foretich was sexually abusing the child. The court held Morgan in contempt of court for refusing to allow the visitation and issued an order of incarceration that was stayed pending appeal. After resolution of the issues on appeal, including affirmance of the judgment of contempt, Morgan was briefly incarcerated, then released. Thereafter, Foretich's visitations resumed. On August 19, 1987, the court ordered a two-week, unsupervised visitation of the child with Foretich beginning August 22. This court denied Morgan's motion for stay of that order pending appeal. On August 22, 1987, Morgan refused to make the child available for visitation. On August 26, 1987, the trial court held Morgan in contempt once again and ordered her incarcerated effective August 28, unless and until she either delivered the child to Foretich or to the court's social services division.1

Thirteen months later, on September 22, 1988, Morgan filed a petition for writ of habeas corpus, D.C.Code § 16-1901 (1981), in the Superior Court, naming as defendants Morgan's jailers, William Plaut and Hallem Williams. Morgan argued that because she would never comply with the court order, the coercive purpose of civil contempt could not be served and, therefore, that her continued incarceration violated her right to due process. On November 8, 1988, the trial court, over Morgan's objection, ordered merger of the habeas petition into the domestic relations proceeding, deeming the petition to be a motion for relief from the order of civil contempt. The court also ordered Morgan to serve Foretich with the habeas petition and to add Messrs. Plaut and Williams as defendants in the domestic relations proceeding solely on the issue of the incarceration.

On December 13, 1988, the trial court held a hearing on Morgan's motion for relief from the order of civil contempt. At that hearing, Morgan testified that she refused to comply with the court's orders because she believed that Foretich had sexually abused their child. She explained the basis for her belief, which included statements by the child, Morgan's own observations, and opinions by lay persons and professionals who had interacted with the child. Morgan described her jail cell and her adjustment to prison life. She added that she was sustained in prison by the support of members of the community and of other inmates. Morgan acknowledged that she knew she could purge her contempt either by returning the child to Foretich or, short of that, by returning the child to the jurisdiction of the court. Morgan testified, however, that she would not comply with either of these options — that she believed going to jail was the only route available to protect her daughter. Three other witnesses testified on Morgan's behalf. The Reverend Caroline Pyle, Morgan's priest, Dr. Carol Kleinman, a psychiatrist, and the Honorable Paul Michel, Morgan's fiance, all testified about Morgan's adjustment to prison life and about her resolve to stay in jail as long as she believes necessary to protect the child. Foretich did not offer any evidence.

On December 15, 1988, the trial court issued an oral opinion denying the motion because Morgan had failed to show that "there is no realistic possibility or substantial likelihood that her continued confinement will cause her to relent" and, further, had failed to show that "Dr. Morgan's confinement no longer serves a coercive purpose and is now wholly punitive in nature in violation of her constitutional rights." The trial court gave several reasons for this conclusion: the recent denial of relief by this court and by the federal courts, the likelihood that Morgan's friends and supporters may desert her, the fact that Morgan increasingly will miss her child, and the probability that Morgan will realize the waste of her professional talents — all causing her to relent and produce the child.

Morgan filed a timely appeal. After oral argument, we remanded for additional findings and conclusions based solely on relevant facts and circumstances since the December 1988 hearing. In response, the trial court held additional hearings in June 1989, and, on June 19, once again, denied Morgan's motion. The court reiterated its concern about the child's welfare. The court then noted Morgan's "public and litigation position" that she would never deliver the child to Foretich and added that Morgan had "avoided discussion" of her other alternative: she could purge her contempt by...

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