Dennison v. Mobley

• Decision Date: 12 November 1974
• Docket Number: No. 74--106,74--106
• Parties: Charles DENNISON et ux., Appellants-Petitioners, v. Richard MOBLEY, Chancellor Appellee-Respondent.
• Court: Arkansas Supreme Court

Page 215

515 S.W.2d 215

257 Ark. 216

Charles DENNISON et ux., Appellants-Petitioners, v. Richard MOBLEY, Chancellor Appellee-Respondent.

No. 74--106.

Supreme Court of Arkansas.

Nov. 12, 1974.

Francis T. Donovan, Conway, for appellants-petitioners.

R. L. 'Jack' Roberts, William C. Brazil and Guy Jones, Jr., Conway, for appellee-respondent.

FOGLEMAN, Justice.

Appellants Charles and Modelle Dennison seek review of an order of the Faulkner Chancery Court holding them in contempt of court for violation of an order of the court relating to the custody of their three-year-old granddaughter. The order, insofar as material, reads as follows:

1. * * * Charles and Modell Dennison failed to comply with the Court's order of reasonable visitation in that they failed to return the above named child after a three (3) hour visitation on December the 11th, 1973.

2. That said Charles and Modelle Dennison aided and abetted * * * Clinton Eugene Dennison, their son, in allowing him to take Jessica Lynn Dennison outside the boundaries of the Court and the border of the State of Arkansas.

3. That the Court doth find a deliberate violation of its order of December the 11th, 1973 and that Charles and Modelle Dennison are hereby adjudged to be in contempt of this Court in that they aided and abetted one Charles Eugene Dennison from returning Jessica Lynn Dennison after the reasonable visitation had been awarded previously by this Court. The original order of December the 11th, 1973 was directed towards Charles and Modelle Dennison in that they were to comply with all Court orders directed towards Clinton Eugene Dennison.

4. That the Court finds and hereby levies a fine of $100 to be placed upon Charles and Modellee Dennison jointly. Also, a $100 a day fine, per day, until said child, Jessica Lynn Dennison is returned to the jurisdiction of this Court and to the above named plaintiff, Pearlie Mae Dennison. That said Charles and Modelle Dennison are to remain in jail until said child is returned to this Court and that in addition to the time they are in jail an additional three (3) days is to be served by Charles and Modelle Dennison.

We first dispose of the contention of appellee that this appeal should be dismissed because review of such an order may be had only upon certiorari. Appellee is correct as to the mode of appellate review. Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605. This court in its supervisory capacity, however, has always been rather liberal in elevating substance above form in order to deal with a particular proceeding in a manner consistent with justice in order to expeditiously dispose of issues, when it can be done without prejudice to one not immediately before the court and there is no statutory or constitutional impediment. To this end an appeal may, in the discretion of this court, be treated as a petition for certiorari, particularly when the entire record of the proceeding is before us. Bridges v. Arkansas Motor Coaches, (1974) 256 Ark. ---, 511 S.W.2d 651; Whorton v. Hawkins, 135 Ark. 507, 205 S.W. 901. The entire record is before us. We find no statutory or constitutional impediments to our treating this matter on certiorari. We do not see how doing so could possibly result in prejudice to anyone not before this court. The motion to dismiss is denied, because it seems to us that the ends of justice require that we expeditiously dispose of the issues raised by appellants. We will therefore treat this appeal as a petition to quash the order on certiorari. The appellants will hereinafter be referred to as petitioners and appellee as respondent.

We may just as quickly dispose of the contention of petitioners that the chancery court was without jurisdiction over them because they were not parties to the divorce suit in which temporary custody of their granddaughter was awarded to her mother and reasonable visitation allowed her father, their son. They admit that they were present at the hearing which resulted in the entry of the order. At the inception of the hearing at which the order was entered and in the presence of petitioners, the chancellor emphatically announced that he would jail everybody connected with the case if he had any trouble on either side, 'including relatives, kinsfolk, everybody else' and would fine and put on the county farm anyone who violated his order. At the conclusion of the hearing, the chancellor forcefully cautioned that he did not expect 'any more running off or snatching the child' or anything of that sort. Petitioners' attorney had admitted in open court at this hearing that they were parties to the proceeding. The chancellor directed petitioners' attorney, who was their son's attorney in the divorce suit, to explain the remark to his clients. A certified copy of an order awarding custody to the mother on her ex parte application and fixing the date of the hearing had directed the sheriff to accompany the mother to obtain custody and to serve a certified copy of the order on petitioners. Although no return showing service of this order on them appears in the record, Charles Dennison testified at the contempt hearing that he was present at the custody hearing because he and his wife and his son had been made parties defendant, that he fully understood what the court said on that date, and that the remarks were directed to him and his wife. One who has full knowledge of a court order and its import, as petitioners did, cannot flout it with impunity. Hickinbotham v. Williams,228 Ark. 46, 305 S.W.2d 841: See also Whorton v. Gaspard, 240 Ark. 325,399 S.W.2d 680; Hudkins v. Arkansas State Board of Optometry, 208 Ark. 577, 187 S.W.2d 538. The petitioners were clearly subject to the jurisdiction of the chancery court in the contempt proceeding.

Petitioners contend that contempt on their part was not proved by a preponderance of the evidence. This presents a problem to some apparent complexity. The argument on behalf of petitioners is based wholly upon their contention that the evidence preponderates in their favor, even when they concede that the court may have punished them for both civil and criminal contempt. They say that, since the evidence preponderates in their favor, there could not have been that degree of proof required to sustain a finding of criminal contempt. They are correct as to the degree of proof required in the trial court, but they overlook the difference in appellate review of the evidence on certiorari, not only as distinguished from its consideration by the trial court, but as between the two types of contempt. The distinction between the two and the overtones of each inherent in a child custody proceeding growing out of a divorce action were clearly recognized by the chancellor. See Songer v. State, 236 Ark. 20, 364 S.W.2d 155.

In cases of civil contempt the enforcement of the rights of private parties to litigation is the objective. On the other hand, the primary reason for punishment for criminal contempt is the necessity for maintaining the dignity, integrity and authority of, and respect toward, courts and the deterrent effect on other is just as important as the punishment of an offender. Hickinbotham v. Williams, 228 Ark. 46, 305 S.W.2d 841; Lee v. State, 102 Ark. 122, 143 S.W. 909; Turk v. State, 123 Ark. 341, 185 S.W. 472. The two purposes merge in a case such as this. Songer v. State,supra.

The distinction and the reasons therefor have been discussed by us in Blackard v. State, 217 Ark. 661, 232 S.W.2d 977, as well as in Songer. In Songer we said:

* * * It is not questioned that punishment for civil contempt will be upheld by this Court unless the order of the trial court is arbitrary or against the weight of the evidence. However, it is not necessary for us to hold the petitioner was found guilty of only civil contempt in order to sustain the trial court. We think the trial court should be sustained even if the petitioner were guilty of criminal contempt.

After stating the rule for appellate review set out in Blackard, we said:

Weighing the testimony under the above rules, we find there is substantial evidence to support the order of the trial court.

In Blackard, we had said:

One of the reasons for the distinction between criminal contempt and civil contempt is because it is generally held that in criminal contempt proceedings the proof must be beyond a reasonable doubt. In the case at bar the proceedings involve criminal contempt; and the trial court held that the proof had to be beyond a reasonable doubt, just as in a criminal case. The ruling was correct. * * *

On review by this Court in such proceedings by certiorari, we do not try the criminal contempt case de novo, despite any such language so intimating as contained in Jones v. State, 170 Ark. 863, 281 S.W. 663. Rather, we review the evidence just as we would in an appeal in any criminal case. The trial court in the first instance, in a criminal contempt proceeding, must find the cited person guilty beyond a reasonable doubt. Then, on certiorari proceedings this Court reviews the record to determine whether the evidence, when given its full probative force, is sufficient to sustain the finding of the trial court. * * *

* * * As previously stated, we review the evidence in this case just as we would an appeal in an ordinary criminal case, that is, to determine whether the evidence, when given its full probative force, is sufficient to sustain the finding of the trial court.

Of course, in a criminal case, we do not consider whether the guilt of an accused is proven beyond a reasonable doubt, since the test on appellate review is whether there is any substantial evidence to support the fact finder's verdict. Pharr v. State, 246 Ark. 424, 438 S.W.2d 461; Morrow v. Roberts, 250 Ark. 822, 467 S.W.2d 393; Graves v. State, 236 Ark. 936, 370 S.W.2d 806. In Graves we said:

Upon the conflicting testimony the issues of fact were properly submitted to the jury. The appellants are...