Cook v. State, 55292

• Citation: 483 So.2d 371
• Decision Date: 12 February 1986
• Docket Number: No. 55292,55292
• Parties: Henry J. COOK, III v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 371

483 So.2d 371

Henry J. COOK, III v. STATE of Mississippi.

No. 55292.

Supreme Court of Mississippi.

Feb. 12, 1986.

James G. Tucker, III, Bay St. Louis, for appellant.

Tom Wright Teel, Walter W. Teel, Sekul, Hornsby, Wallace & Teel, Biloxi, for appellee.

Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.

ROBERTSON, Justice, for the court:

I.

This appeal arises from a charge of indirect or constructive criminal contempt leveled against a Gulf Coast lawyer. In the court below the accused was found to have counseled his client to violate a child custody decree by pretermitting some of her ex-husband's visitation rights. For reasons explained below, we reverse and render.

An important feature of the proceedings below involved the chancellor's occupying dual and conflicting roles of prosecutor and judge. For reasons explained below, we regard that the chancellor's prosecutorial actions, no doubt undertaken in complete good faith, were such that he became disqualified to adjudge the accused's guilt or innocence.

II.

A.

Annelle Walker and Robert D. Walker were divorced in November of 1977. The only child born of the marriage was Wendy Lynn Walker, a female, then age six but by now fifteen years old. Permanent custody of this child was vested in Annelle. After modification in 1978, Robert was granted visitation rights which included two 48 hour weekend custody periods each month. The parties appear to have operated under this custody arrangement without inordinate difficulty for some four or five years.

In September of 1982, Annelle became aware of certain information through her then eleven year old daughter's psychologist, which, in Annelle's judgment, justified a change of custody to eliminate any overnight or weekend visitation with Robert. To effect this goal Annelle sought the services of Henry J. Cook III, an attorney maintaining his office in Bay St. Louis, Mississippi. Cook was the Defendant below and is the Appellant here. Cook prepared and, on behalf of Annelle, filed in the Chancery Court of Hancock County, Mississippi, a motion to modify the prior custody decree. He sought to have an early hearing set in the matter, but the earliest hearing date available was October 26, 1982.

On September 29, 1982, Annelle acquired new information, which in her view created an emergency situation. ¹ She called Cook and advised that she was not going to permit the next overnight visitation, which was scheduled to begin on October 1, 1982. She inquired of Cook concerning the possible consequences of such action. Cook, of course, advised her that she ran the risk of being held in contempt of court. He further urged that she inform Robert of her decision as quickly as possible and attempt to negotiate some alternative form of visitation.

On that first weekend in October, Robert's scheduled visitation was denied without apparent incident. Because another scheduled weekend visitation remained prior to the October 26 hearing date, Cook filed on October 4, 1982, an application for a preliminary injunction, see Rule 65(a), Miss.R.Civ.P., to halt that visitation. He was advised by the court administrator, however, that this application likewise could not be heard until October 26, 1982, the same date as the scheduled hearing on the merits.

Thereafter, at the request of counsel for Robert D. Walker, the merits hearing was continued first until November 3, 1982, then until December 1, 1982, and finally until February 24, 1983. During this time Mr. Cook remained in communication with defense counsel.

By the end of November of 1982, Annelle had denied Robert four weekend visitations. Concerned at the continued postponement of the hearing on her motion to modify, she consulted with Cook and, with his advice and counsel, wrote the following letter, which is the centerpiece of this contempt proceeding:

Annelle Walker

107 Hickory Lane

Bay St. Louis, MS

November 30, 1982

Robert Walker

514 Meadow Lane

Waveland, MS 39576

Dear Robert:

Please do not come and expect to pick up Wendy this coming Friday (December 3, 1982) unless you wish to visit her here or at some neutral, supervised location.

Please understand that I am not denying you the right to see her, but am only attempting to protect her and I do feel that I can no longer allow her to be subjected to the environment in which you keep her. I do not know why, but only that she expresses a great deal of fear whenever it is suggested that she might have to visit with you again.

Please further understand that I do not act out of malice, contempt or other disregard for you or the existing court order, but I cannot, in good conscience, stand by and allow Wendy to be abused and subjected to the type of environment you have provided for her in the past.

If you wish to visit with Wendy, here or in another supervised location, please notify me of such, either directly or through your attorney.

/s/ Annelle Walker

Thereafter, it appears that Robert Walker was denied visitation on only one occasion--the weekend of December 17, 1982.

B.

On February 28, 1983, the instant criminal contempt proceedings were commenced when Hon. John S. Morris, Chancellor, Division 3, Eighth Chancery Court District, filed an affidavit charging Cook with "contumacious contempt toward this court and its orders" for his role in the denial of Robert Walker's visitation rights. The matter was called for hearing before Chancellor Morris on March 3, 1983, at the conclusion of which Cook was found in contempt and fined an aggregate of $500--one hundred dollars for each of the five visitations Robert Walker was denied. ² Cook has appealed to this Court.

III.

A.

A criminal contempt is conduct that is directed against the dignity and authority of the court, or a judge acting judicially. It arises from an act obstructing the administration of justice which tends to bring the court into disrepute or disrespect. State v. Wingo, 221 Miss. 542, 73 So.2d 107 (1954); see also Gadson v. Gadson, 434 So.2d 1345, 1349 (1983). The essence of the offense is that the defendant wilfully, maliciously and contumaciously refused to comply with a decree of the court. Langford v. Langford, 253 Miss. 483, 485, 176 So.2d 266, 267 (1965).

A few of the basics need to be stated. We proceed ab initio. It is our responsibility to determine whether on this record Cook is guilty of contempt. Prestwood v. Hambrick, 308 So.2d 82, 84 (Miss.1975); Paxton v. Paxton, 222 So.2d 834 (Miss.1969). We are not bound by the rule ordinarily applicable--that we have no authority to reverse except the chancellor be found manifestly in error. Bucklew v. State, 209 So.2d 916, 918 (Miss.1968); Ballew v. Case, 232 Miss. 183, 98 So.2d 451, 453 (1957); cf. Johnson v. State, 233 So.2d 116, 119 (Miss.1970).

As in all criminal matters, the accused enjoys the presumption of innocence. Langford v. Langford, 253 Miss. 483, 485, 176 So.2d 266, 267 (1965). The State has the burden of proving each element of a criminal contempt beyond a reasonable doubt. Miss.Code Ann. Sec. 11-51-11(4) (Supp.1985); Coleman v. State, 482 So.2d 221 (Miss.1986); In Interest of Holmes, 355 So.2d 677, 679 (Miss.1978); Prestwood v. Hambrick, 308 So.2d 82, 84 (Miss.1975); Jenkins v. State, 242 Miss. 627, 136 So.2d 205, 208 (1962). His trial must conform to the requirements of due process. In Re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955). In Interest of I.G., 467 So.2d 920, 923 (Miss.1985); Grace v. State, 108 Miss. 767, 67 So. 212 (1915).

B.

There was some hearsay testimony in Annelle's contempt hearing to the effect that Annelle had denied Robert visitation on the advice of counsel. ³ That testimony--then unrebutted--was what led Chancellor Morris to file the criminal contempt charges against Cook. At the instant hearing Cook credibly explained that there was no occasion for rebuttal then because Annelle's contempt, not Cook's, was the matter at issue. Indeed, Cook had no knowledge that anyone was considering charging him with contempt.

Cook testified that he advised Annelle that she should comply with the custody decree until it was modified and that she faced a possible contempt citation if she did not. He assisted in drafting the November 30 letter to show that Annelle was acting in good faith, that she had no contumacious attitude toward the court and that she wished to negotiate with Robert a mutually acceptable modification of custody and visitation.

At the hearing below Annelle testified unequivocally that the decision to curtail Robert's visitation rights was hers, that Cook had advised her of the consequences, but she nevertheless continued on her planned course of action.

In this factual setting Cook is simply not guilty of criminal contempt. Not only does the State's proof not reach beyond-a-reasonable-doubt dignity, if it did the acts charged do not constitute criminal contempt. ⁴ Not every deviation from the directives of a court order is criminal contempt, even though knowingly done or counseled. In a not unrelated context we have refused to label a domestic relations movant a person of unclean hands, where, after filing a petition for modification and resubjecting himself to the jurisdiction of the court, the movant unilaterally reduced his alimony payments, subject ultimately to such action as the court may take. McHann v. McHann, 383 So.2d 823, 826 (Miss.1980); Lee v. Lee, 182 Miss. 684, 688-89, 181 So. 912, 913 (1938); Schlom v. Schlom, 149 Miss. 111, 115-16, 115 So. 197, 198 (1928); see also Langford v. Langford, 253 Miss. 483, 485, 176 So.2d 266, 267 (1965).

Even where the court ultimately denies the relief movant thought she was entitled to, her having petitioned the court is an indicia of good faith and may often, as here, negate contumacy. Here Annelle and Cook, her attorney, petitioned the court for relief, only to confront a congested court calendar and the legitimate trial preparation needs and scheduling conflicts of coun...