Anderson v. Anderson, 83-25
| Decision Date | 09 August 1983 |
| Docket Number | No. 83-25,83-25 |
| Citation | 667 P.2d 660 |
| Parties | Patricia Ann ANDERSON, Appellant (Defendant), v. James Scoon ANDERSON, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Murlie C. Hanson, Cheyenne, for appellant.
E. James Burke and Thomas E. Campbell of Hanes, Gage & Burke, P.C., Cheyenne, for appellee.
Before RAPER, * THOMAS, ROSE and BROWN, JJ., and GUTHRIE, J. Retired.
This appeal concerns the power of the trial court to hold a party in a divorce action in contempt for selling property which was awarded to the opposing party, but which actually was owned by the parties' minor son.
In July, 1982, appellee James Anderson filed a complaint, seeking a divorce from appellant Patricia Anderson. Within a week, the appellant filed her answer and counterclaim. Both parties listed two cows and a calf as marital property. However, these animals were not assets of the marriage, as the cows had been purchased for the couple's minor son several years earlier by Mrs. Anderson and her mother.
Mrs. Anderson initiated arrangements to sell the animals in August of 1982. Before the sale was consummated, the parties' divorce action came before the court, and on November 16, 1982, a judgment and decree was filed which awarded the two cows and the calf to Mr. Anderson as his sole and separate property. The animals were sold the following day. Subsequently, Mrs. Anderson filed a petition to modify the divorce decree to reflect the fact that the animals had been erroneously listed by the parties as marital assets. Mr. Anderson responded by filing a motion for an order to show cause why the appellant should not be held in contempt for selling the cows and calf.
At the hearing on the petition for modification and the order to show cause, the court concluded that neither party had owned the two cows and the calf and that the animals should be struck from the divorce decree. In addition, the court found that Mrs. Anderson should be held in contempt for selling the animals and that she could purge herself of the contempt by paying to Mr. Anderson the value of the cows in the sum of $1,570. The court further directed Mrs. Anderson to pay appellee $230 for attorney's fees.
The question presented for review is whether, under the facts of this case, the trial judge acted properly in requiring that appellant purge herself of contempt of court by paying to Mr. Anderson the price that the cows brought on sale plus attorney's fees.
We will reverse.
In Horn v. District Court, Ninth Judicial District, Wyo., 647 P.2d 1368 (1982), this court reviewed the law of contempt. There we said that contempts of court are usually classified as either civil or criminal in nature, depending upon the purpose of the contempt order.
Thus, whether a contempt is civil or criminal depends upon what the court is seeking to accomplish by imposing the particular penalty. Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966). If the penalty is intended to operate in a prospective manner so as to bring about compliance with an order of the court, then it relates to civil contempt. If, however, the penalty is unconditional and imposed to vindicate a prior transgression against the court, then criminal contempt is involved. Shillitani v. United States, supra.
Civil and criminal contempts of court may also be classified as either direct or constructive, depending upon where they are committed. Direct contempts are those that occur in the presence of the court, while constructive contempts occur outside of the observation of the judge. Horn v. District Court, Ninth Judicial District, supra; Application of Stone, 77 Wyo. 1, 305 P.2d 777, cert. denied 77 S.Ct. 593 (1957); Ex Parte Hennies, 33 Ala.App. 377, 34 So.2d 22, 25 (1948). It is the duty of the appellate court to determine the nature of a contempt based on the manner in which it occurred and the reasons why a particular penalty was imposed. Horn v. District Court, Ninth Judicial District, supra.
The transcript of the contempt hearing, which reflects the questioning of Mrs. Anderson by the court, is instructive on the court's purpose in imposing the contempt order:
At the close of the hearing, the court announced its decision by stating:
(Emphasis added.)
From the foregoing portion of the record, it appears that the trial court, in holding appellant in contempt, was acting to punish her for withholding from the court the correct information concerning the cows until after she had sold them. The trial judge characterized such conduct as "play[ing] fast and loose with the Court," and it must be assumed that he imposed a penalty as a means of vindicating the dignity and power of the court. Horn v. District Court, Ninth Judicial District, supra; Townes v. State, Wyo., 502 P.2d 991, reh. denied 504 P.2d 46 (1972). We conclude that, in acting to penalize Mrs. Anderson for her conduct, the court held her in criminal rather than civil contempt.
Neither the fact that the contempt proceedings were initiated by a private party rather than by the court nor the fact that the penalty for the contempt was made payable to the private party alters the conclusion that the contempt was criminal in nature. Such factors, while relevant, are not conclusive in determining the category of the contempt in question. Nye v. United States, 313 U.S. 33, 42, 61 S.Ct. 810, 812-13, 85 L.Ed. 1172 (1941).
There is another reason why this case can be said to involve criminal rather than civil contempt. As discussed above, the purpose of civil contempt is to compel a party to obey a lawful order of the court. However, in this case the trial judge struck the portion of the divorce decree which set over the cows to appellee. Once that was done, there was no outstanding lawful order with which Mrs. Anderson could be compelled to comply. Thus, we must assume that the sole function of the fine was to punish appellant for her conduct which the judge deemed to be disrespectful of the court.
A criminal contempt may be further characterized as either direct or constructive. Horn v. District Court, Ninth Judicial District, supra; Application of Stone, supra. In some situations it may be difficult to say with certainty which classification is appropriate. Ex Parte Hennies, supra. In the present case, a portion of appellant's contemptuous conduct is clearly direct. She represented to the court in the divorce proceeding that property belonging to her minor The second portion of appellant's contemptuous behavior, the sale of the cows, may be characterized as constructive contempt, since it occurred outside of the judge's presence. The court was first made aware of the sale by appellant's petition to modify the decree. Thus, we conclude that appellant's conduct is properly identified as criminal contempt which is partly direct and partly constructive.
son was marital property. Although the judge did not become aware of the misrepresentation until several months later, at which time he imposed a penalty, the misrepresentation occurred in his presence, during the divorce trial.
While it is true that a court possesses inherent power to punish for contempt and that such power is "a necessary and integral part of the independence of the judiciary," Townes v....
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