Brock v. Eubanks

• Decision Date: 01 October 2008
• Docket Number: No. CA 07-560.,CA 07-560.
• Citation: 288 S.W.3d 272,102 Ark. App. 165
• Parties: Tami L. BROCK, Appellant, v. Bobby W. EUBANKS, Appellee.
• Court: Arkansas Court of Appeals

288 S.W.3d 272

102 Ark. App. 165

Tami L. BROCK, Appellant, v. Bobby W. EUBANKS, Appellee.

No. CA 07-560.

Court of Appeals of Arkansas.

October 1, 2008.

James F. Lane, P.A., by: James F. Lane, for appellant.

David T. Howell, Conway, AR, for appellee.

SUBSTITUTED OPINION ON GRANT OF REHEARING

SAM BIRD, Judge.

On April 23, 2008, this court handed down a published opinion affirming two orders of the circuit court against Tami Brock, a custodial parent: an order holding her in contempt of court for failure to abide by the court's previously entered child-visitation schedule, and a permanent restraining order that enjoined her from interfering with Bobby Eubanks's visitation with their minor child. Brock has now filed a petition for rehearing. We grant the petition and issue this substituted opinion.

Brock raises the following points: (1) whether any evidence supports the circuit court's contempt order and the permanent restraining order; (2) whether the circuit court erred in ruling on a motion-for-contempt citation filed only three days before a hearing previously scheduled on other matters; and (3) whether the permanent restraining order improperly delegated judicial authority to law-enforcement officers, who are part of the executive branch of government, by giving them discretion to arrest and incarcerate Brock should they "determine or reasonably suspect" her willful violation of any court orders in this case, whenever issued. We affirm the circuit court's finding of contempt; we reverse the portion of the permanent restraining order that impermissibly delegates the court's contempt power to law-enforcement officers.

Whether any evidence supports the circuit court's contempt order and the permanent restraining order

Eubanks filed motions for contempt against Brock on February 7 and February 20, 2007, alleging that she had interfered with his visitation with their child. In separate responses to each motion, Brock denied willful contempt of any order of the court. On appeal she argues that, in the absence of competent and "live" testimony to support Eubanks's claims of contempt, the affidavits attached to his motions were not competent evidence in support of contempt. Arkansas Rule of Civil Procedure 43(c), however, which deals with evidence on motions, expressly permits the trial judge to hear the matter on affidavits presented by the respective parties. Here, where Brock was aware of the contempt hearing but did not appear, the trial court was well within its discretion in hearing the matter on the affidavits alone.

Whether the circuit court erred in ruling, at a hearing previously scheduled on other matters, on a motion for contempt citation filed three days before the hearing

On February 14, 2007, the circuit court ordered Brock to appear at a February 23 hearing on Eubanks's first motion for contempt, which he had filed on February 7, to show cause why she should not be cited for contempt of previous orders of the court. In his February 20 motion Eubanks alleged that Brock had committed contemptuous acts on February 16; on February 20 the court again ordered her to attend the February 23 hearing to show cause why she should not be cited for contempt of previous orders of the court. Brock filed her response to the February 7 motion on February 14 and filed her response to the February 20 motion on February 27. She contends on appeal that the court erred in considering the allegations of the February 20 motion at the February 23 hearing because she was not given the ten days that Ark. R. Civ. P. Rule 6 allows for responding.

The statute dealing specifically with contempt, Ark.Code Ann. § 16-10-108 (Supp. 2007), sets no fixed time for a party's response to a charge of contempt, providing in subsection (c) only that the party charged must be notified and given a "reasonable time" to make a defense. Here, the circuit court had before it adequate evidence to support the finding of contempt even without considering instances that occurred after the first show-cause order was issued, especially in light of Brock's failure to appear as ordered after her motion for a continuance was denied. Nevertheless, we think that those subsequent acts were properly considered: Brock was given adequate notice that she stood accused of ongoing violations of the visitation order, and the affidavits attest to a pattern of ongoing conduct demonstrating a disregard of the court's orders. The court did not violate her due process rights by taking notice of the instances of contempt alleged in the February 20 motion, which constituted part of the ongoing contempt alleged in the show-cause order.

Whether the permanent restraining order improperly delegated judicial authority to law-enforcement officers by giving them discretion to arrest and incarcerate Brock should they "determine or reasonably suspect" her willful violation of any court orders in this case, whenever issued

Brock contends that only a court can make a contempt finding, and that under the Separation of Powers doctrine of the Arkansas Constitution, the executive branch of government (which includes law enforcement) cannot exercise the contempt powers vested solely in the judicial branch. She argues that the circuit court attempted to make the executive branch the judge and jailer by delegating to law-enforcement officers the authority to "determine" if she was in contempt of any order of the court and to "arrest and incarcerate" her upon a determination or reasonable suspicion of violation of the court's orders. We agree with her arguments.

The circuit court found in its permanent restraining order that Brock had committed multiple, contemptuous violations of previous orders. The court found that the issuance of the permanent restraining order was necessary "for the purpose of coercing ... Brock's compliance" with the agreed visitation order entered by the court, the standing order on visitation, and an order of contempt issued a week earlier. The court also found it necessary and appropriate "to use law enforcement" to coerce Brock's compliance with "all" the court's orders should she at any future time fail to fully comply with those orders or any other orders subsequently issued in the case. Finally, the court found that the use of law enforcement, if necessary to enforce the court's orders, should extend to the transport of the minor child to her father's home and also extend to Brock's arrest and incarceration "if law enforcement determines or has reasonable suspicion that Tami L. Brock has willfully violated" previous or future orders of the court pertaining to this case.

The following passage of the permanent restraining order sets forth this latter finding:

[T]he use of law enforcement, if necessary to enforce the Court's Orders, should extend ... to the arrest and incarceration of Tami L. Brock if law enforcement determines or has reasonable suspicion that Tami L. Brock has willfully violated the Agreed Visitation Order entered January 6, 2007, this Court's Standing Order on Custody, Visitation and Support, and/or this Court's Order of Contempt issued on 23 day of February, 2007, or any other Order subsequently issued by the Court pertaining to this case, including this Permanent Restraining Order.

Brock characterizes this order as the unconstitutional delegation of judicial authority to the executive branch.

The General Assembly is given power by our state constitution to regulate by law punishment for contempt "not committed in the presence or hearing of the courts, or in disobedience of process." Ark. Const. Art. 7, § 26, Indirect contempt. The constitutional authority delegated to the legislature to regulate punishment for contempt is in addition to, and not in derogation of, the inherent power of the court to punish contempt in disobedience of their process. Smith v. Smith, 28 Ark.App. 56, 770 S.W.2d 205 (1989).

The legislature has enacted Ark.Code Ann. § 16-10-108, which states:

(a) Every court of record shall have power to punish, as for criminal contempt, persons guilty of the following acts and no others:

(1) Disorderly, contemptuous, or insolent behavior committed during the court's sitting, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due to its authority;

(2) Any breach of the peace, noise, or disturbance directly tending to interrupt its proceedings; [and] (3) Willful disobedience of any process or order lawfully issued or made by it[.]

....

(c) Contempts committed in the immediate view and presence of the court may be punished summarily. In other cases, the party charged shall be notified of the accusation and shall have a reasonable time to make his or her defense.

Ark.Code Ann. § 16-10-108 (Supp.2007). Under this statute, only contempts committed in the immediate view and presence of the trial court may be summarily punished. Harvell v. Harvell, 36 Ark.App. 24, 820 S.W.2d 463 (1991). As to the mode of procedure in cases of contempt not committed in the immediate view or presence of the court, the contempt must be brought before the court by affidavit of the persons who witnessed it, or who have knowledge of it. Ex parte York, 89 Ark. 72, 115 S.W. 948 (1909).

The York court quashed judgments punishing the appellants because the chancery court had proceeded without any affidavit or its equivalent as a foundation for the contempt proceedings. The basis of the supreme court's decision was as follows:

In State v. Henthorn, [46 Kan. 613, 26 P. 937 (1891)] the court truly said: "And a careful examination of the authorities satisfies us that in all cases of constructive contempt whether the process of arrest issues in the first instance or a rule to show cause is served, a preliminary affidavit or information must be filed in the court before the process can issue. This is necessary to bring the matter to the attention of the court, since the court cannot...