Duval v. Duval, 6848

Decision Date28 June 1974
Docket NumberNo. 6848,6848
PartiesRachel DUVAL v. Henry DUVAL.
CourtNew Hampshire Supreme Court

Warren B. Rudman, atty. Gen., and Gregory H. Smith, Concord, for the New Hampshire Dept. of Probation.

Sullivan, Gregg & Horton, and Judd A. Gregg, Nashua, for defendant.

KENISON, Chief Justice.

The sole issue presented by this case is whether a defendant is entitled to the assistance of counsel in a nonsupport contempt hearing because he may be subjected to imprisonment for his failure to comply with the support order.

On December 1, 1969, the parties obtained a decree of divorce which required the defendant to pay support for his minor children in the amount of $40 per week through the New Hampshire Department of Probation. On June 24, 1970, the department filed notice of violation of order in Hillsborough County Superior Court alleging arrearage in the amount of $1070. On July 23, 1970, the court found the defendant in contempt and ordered him to pay forthwith $150 or stand committed. It also ordered an increase in the regular weekly payments by $10 to eliminate the arrearage. On June 12, 1973, the department again filed a notice of violation of order in the Hillsborough County Superior Court. After a hearing on September 17, 1973, the court found the defendant, who was not represented by counsel in contempt with an arrearage amounting to $5840. It ordered the defendant to pay $500 on or before December 1, 1973 or a writ of mittimus to issue at the call of the department for confinement in the county jail and required the defendant to continue the weekly payments. On November 2, 1973, the defendant retained counsel and filed a motion to set aside the September 17, 1973 order on the ground that the defendant had been improperly denied his right to counsel under the State and Federal Constitutions. The Court (Cann, J.) denied the motion and reserved and transferred the defendant's exception thereto. On December 5, 1973, the department requested that a writ of mittimus issue for failure to comply. Upon the defendant's motion, the court stayed execution of the September 17, 1973 order pending appeal.

The defendant argues that the Supreme Court recognized in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) the right to counsel in any criminal proceeding where a defendant may be imprisoned if convicted and urges that this right should be extended to a civil contempt proceeding where the possibility exists that a defendant may likewise be imprisoned for his failure to comply with an order of the court. See Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 (1932). The defendant contends in essence that the reasoning of Argersinger is applicable to the present case and stresses that it would be improper to distinguish a civil proceeding from a criminal proceeding where the outcome of either may result in imprisonment. See Mills v. Howard, 109 R.I. 25, 280 A.2d 101 (1971). See also Commonwealth v. Hendrick, 220 Pa.Super. 225, 283 A.2d 722 (Pa.Super. 1971). The defendant also takes the position that since N.H.Const. pt. I, art. 15 states that 'Every person held to answer any crime or offense punishable by deprivation of liberty shall have the right to counsel at the expense of the State if need is shown,' he should be entitled to counsel because civil contempt is an 'offense punishable by deprivation of liberty.'

The State responds by emphasizing that Argersinger is limited to criminal proceedings and points out that the Supreme Court indicated its reluctance to extend the reasoning of that case to civil proceedings in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In Gagnon the court held that due process required that a probationer be given the right to counsel in a revocation hearing only where the issues were so complex that it would be difficult for him to present his case. The State suggests that the issues in a nonsupport contempt hearing involve questions of the financial capability of the defendant to meet his obligations and do not involve complicated issues requiring the assistance of counsel. However, in the alternative, the State urges that if this court should determine that the availability of counsel was desirable for protecting the rights of a defendant, then it should be granted only in those situations where legal assistance was necessary for a fair presentation of the issues.

A civil contempt action arises from a private wrong in which the defendant causes harm to the plaintiff by his failure to comply with a court order. Its purpose is to use the court's power to impose fines or imprisonment as a method of coercing the defendant into compliance. The defendant is given the choice of either performing the requisite act or paying the penalty. In effect, the defendant carries 'the keys of (his) prison in (his) own pocket.' In re Nevitt, 117 F. 448, 461 (8th Cir. 1902); see Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). A criminal contempt action, on the other hand, occurs as a result of a defendant's interference with the court's process or dignity. This interference is characterized as a criminal or public wrong, and the imposition of a fine or imprisonment is punitive, rather than remedial in nature. D. Dobbs, Remedies 93, 96-98 (1973); see H. Clark, Jr., Law of Domestic Relations 468-69 (1968); Houle & Dubose, The Nonsupport Contempt Hearing: Constitutional and Statutory...

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48 cases
  • State v. Veale
    • United States
    • Supreme Court of New Hampshire
    • May 1, 2009
    ...... due process right to counsel might attach in "complicated nonsupport contempt hearing[s]," Duval v. Duval, 114 N.H. 422, 427, 322 A.2d 1 (1974), we do not find Duval controlling here. Duval ......
  • Rutherford v. Rutherford
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    • Court of Appeals of Maryland
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    ...... Some courts have so held. See, e.g., Duval v. Duval, 114 N.H. 422, 322 A.2d 1 (1974); State ex rel. Dept. of Human Services v. Rael, 97 N.M. ......
  • Young v. Whitworth
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • September 25, 1981
    ......See Duval v. Duval, 114 N.H. 422, 322 A.2d 1 (1974); Sword v. Sword, 399 Mich. 367, 249 N.W.2d 88 (1976); In ......
  • Parker v. Turner
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 19, 1980
    ......Zaborac, 525 P.2d 537 (Alas.1974) (right to counsel); Duval v. Duval, 114 N.H. 422, 322 A.2d 1 (1974) (no right to counsel, but right could arise in a complex ......
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