Brody v. District Court of Pottawattamie County, 49842

• Decision Date: 20 October 1959
• Docket Number: No. 49842,49842
• Citation: 98 N.W.2d 726,250 Iowa 1217
• Parties: Ralph E. BRODY and Mrs. Ralph E. Brody, Petitioners, v. DISTRICT COURT OF POTTAWATTAMIE COUNTY, Iowa; and the Honorable Folsom Everest, Presiding Judge, Respondent.
• Court: Iowa Supreme Court

Page 726

98 N.W.2d 726

250 Iowa 1217

Ralph E. BRODY and Mrs. Ralph E. Brody, Petitioners, v. DISTRICT COURT OF POTTAWATTAMIE COUNTY, Iowa; and the Honorable Folsom Everest, Presiding Judge, Respondent.

No. 49842.

Supreme Court of Iowa.

Oct. 20, 1959.

Don H. Jackson, Council Bluffs, for petitioners.

Ross, Johnson, Northrop, Stuart & Tinley, and Paul H. Sulhoff, Council Bluffs, for respondent.

LARSON, Chief Justice.

In this certiorari action brought by the petitioners, Ralph E. Brody and Mrs. Ralph E. Brody, we are asked to set aside the order of the respondent which held them in contempt for failure to produce and deliver into court a minor child, Anthony Wayne Ball, in compliance with the order and decree in a habeas corpus proceeding.

On August 29, 1958, the final day of that proceeding, and pending final order, the court stated: '* * * the record may show that the child involved in this habeas corpus action, Anthony Wayne Ball, was produced pursuant to the order of court at the beginning of the trial. By agreement of counsel and on account of his age, he was permitted to be returned to the home for his own protection. The court * * * desires to make it plain that * * * if this court should direct his production or delivery, a failure to comply with that order will be considered a contempt of this court and punishable as such.'

Petitioners contend this order sustains their position that at no time, especially after August 29, 1958, were they specifically charged with the actual custody and control of the minor child Anthony. They further contend there was no substantial evidence to justify a finding that they aided or abetted the mother Nancy Lee Ball in her removal of the child from this jurisdiction, or in her refusal to return and deliver him to the Sheriff of Pottawattamie County, Iowa. They conclude that without such a legal obligation and a willful refusal to obey the court's order based on a definite direction to them, they could not be guilty of contempt. The points they list as grounds for reversal are: (1) that the petitioners never had any control over the custody of the child, and this was especially true after the respondent's order in contempt and the issuance of the warrant of arrest; (2) that petitioners cannot be imprisoned for contempt for failure to perform an act not within their power to perform when so ordered, and especially when their predicament was not their fault; and (3) that the burden of proof in a citation for contempt rests upon the complaining party, and its failure to furnish such proof requires that the complaint be dismissed.

A few further facts are necessary to understand and situation which gave rise to this controversy. As a result of domestic troubles between Nancy Less Ball and her husband in Kansas, Mrs. Brody, Nancy's mother, and Mr. Brody, her stepfather, brought Nancy and her minor son Anthony to their residence in Council Bluffs, Iowa. Subsequent divorce proceedings in Kansas resulted in a decree granting Mr. Ball a divorce and granting custody of the son Anthony to his paternal grandparents in Kansas. As the Child was not turned over to the paternal grandparents, they instituted on April 16, 1958, a habeas corpus proceeding in Pottawattamie County naming Nancy Lee Ball and the petitioners as defendants. The writ issued. The judgment of the court that the best interest of the child required that the care and custody be granted to the paternal grandparents was appealed by the defendants. We affirmed the decision in ball v. Ball, Iowa, 96 N.W.2d 317, on May 5, 1959.

Pursuant to the order of August 29, 1958, previously referred to, the child was 'returned to the home for his own protection.' When on September 9, 1958, the final decision of the trial court was rendered and the defendants appealed, a stay order was obtained from a member of this court. According to the record, sometime later in September Nancy Lee married a man by the name of William Bacot from South Carolina, and the petitioners, Mr. and Mrs. Brody, removed themselves to another address in Council Bluffs. The child remained in the home with his mother. In April of the following year the mother, Nancy Lee, and her new husband took the child to South Carolina. It appeared that she went there as a result of a telephone call informing them of the very serious illness of Mr. Bacot's mother. They did not return. On or about May 1, 1959, the petitioners moved to Marion, Iowa, a division point on the railroad which employed Mr. Brody as an engineer. After their arest on a warrant issued by the respondent, a hearing was had on the contempt charge and the respondent promptly filed its findings and ordered each petitioner imprisoned in the county jail for a term of four months, or until they purged themselves by producing and delivering the child Anthony to the Sheriff of Pottawattamie County, Iowa.

It is respondent's position that, as parties defendant in the original habeas corpus action, the court had jurisdiction over the petitioners, that they were charged with illegal possession of the minor child, appeared and defended against that charge, and that they were bound to respect and obey and carry out the order and decree of that court. Furthermore, it points out that by stipulation it was conceded that the child had not been delivered to the sheriff as ordered by the respondent, which ipso facto established the contempt.

I. It is well settled in Iowa that this court will review in certiorari the evidence questioning the legality of a judgment of contempt. While the cause is not triable de novo, and much weight is given to the findings of fact by the trial court, we still are not bound by them. We said in Watson v. Charlton, 243 Iowa 80, 92, 50 N.W.2d 605, 612: 'The exact extent to which we may go in deciding questions of fact from the record is vaguely defined; it lies in a shadowland, a 'twilight zone,' whose boundaries do not admit of definite charting', citing Andreano v. Utterback, 202 Iowa 570, 210 N.W. 780; Schraeder v. Sears, 192 Iowa 604, 185 N.W. 110; McNiel v. Horan, 153 Iowa 630, 133 N.W. 1070; Roach v. Oliver, 215 Iowa 800, 244 N.W. 899, which hold that we may review the facts upon which the judgment of contempt was founded.

II. It is also the rule in this jurisdiction that in order to warrant a conviction of contempt, it must be established by clear and satisfactory evidence that the accused is guilty. Burtch v. Zeuch, 200 Iowa 49, 52, 202 N.W. 542, 39 A.L.R. 1349. We consider proceedings of this character to be in their nature criminal, or quasi-criminal, and thus require a clear case of contempt be shown by the evidence in the record. Watson v. Charlton, supra; Hobson v. District Court, 188 Iowa 1062 1066, 177 N.W. 40; Crosby v. Clock, 208 Iowa 472, 478, 225 N.W. 954.

The nub of this controversy is whether the petitioners were clearly and sufficiently charged with the possession, care, and custody of this two-year-old child to sustain a finding that they willfully placed themselves in a position where they could not obey the court's order when they moved out of 'the home' in September, 1958, leaving the child with his mother, and then did not actively resist her attempt to take Anthony with her to the state of South Carolina in April, 1959.

In fact, this question troubled the respondent, for the court announced that it 'accepts some blame on its own part * * * in that the child was once before this Court, and by agreement of counsel and with the approval of the Court, the custody was left in the defendants during the trial of the matter.' This it said 'was an error. The child should have been placed in controlled custody and this problem would not have arisen.'

It is for us to decide whether the court, when it had the child before it, clearly and concisely placed the 'custody' of him in all the defendants, as it says it intended. Were the words used, that 'he was permitted to be returned to the home for his own protection', sufficient to clearly place the child's custody in the petitioner-grandparents? The learned trial court thought they were, but we do not think them free from doubt and must disagree.

We are aware of the trial court's final judgment and decree in the habeas corpus case ordering each of the defendants, Nancy Lee and Mr. and Mrs. Brody, to immediately deliver Anthony Wayne Ball to the Sheriff of Pottawattamie County, Iowa, as well as its finding that the child was 'illegally restrained of his liberty by the defendants', and that counsel for the petitioners accepts some blame for not having asked a dismissal of that part of the findings and judgment as to the Brodys in the appeal to us. These subsequent matters merely increase the difficulty in resolving the problem. They do not change the legal obligation, if any, resting on petitioners after the court's order of August 29, 1958.

Without doubt, obedience of a court order must be secured, and to secure such obedience is the usual function of a proceeding for contempt. However, it has often been said by able jurists that courts should be explicit and precise in their commands, and should only then be strict in exacting compliance. This is especially true when the nature of the proceedings is criminal.

On the other hand, it has also been said that if court orders directed to litigants are too general and appear to be too burdensome and uncertain in their scope, the aggrieved party should petition the court for a modification, clarification or construction of the order and, if he fails to do so, he acts at his own peril. However, we are satisfied this rule must be applied with great caution in criminal contempt matters where severe penalties are pronounced.

Justice Frankfurter once said, 'to be both strict and indefinite is a kind of judicial tyranny', and that 'ambiguity lurks in generality and may thus become an instrument of severity.' McComb v. Jacksonville Paper Co., 336 U.S. 187, 69 S.Ct....