Hendershot v. Handlan
| Citation | 248 S.E.2d 273,162 W.Va. 175 |
| Decision Date | 18 October 1978 |
| Docket Number | No. 14110,14110 |
| Court | Supreme Court of West Virginia |
| Parties | , 7 A.L.R.4th 874 James Blaine HENDERSHOT, Sr. v. The Honorable Joseph M. HANDLAN, Judge, etc. |
Syllabus by the Court
1. A person, although not a party to a proceeding, may be charged with contempt for the violation of a court's order entered therein if he has actual knowledge of such order and is acting in concert or privity with a party.
2. One may be charged with contempt for violating a court's order, of which he has actual knowledge, notwithstanding that at the time of the violation the order had not yet been formally drawn up.
3. "When an order of a court has been disobeyed and the case is urgent or the contempt flagrant, the court may issue an attachment in the first instance without the usual antecedent rule." Syllabus Point 1, Ex parte Kirby, 100 W.Va. 70, 130 S.E. 86 (1925).
Hague, Rudolph, Hague & Lantz, Eugene T. Hague, Sr., and George E. Lantz, Parkersburg, for relator.
Joseph M. Handlan, pro se.
In this original proceeding in prohibition the petitioner, James Blaine Hendershot, Sr., seeks a writ prohibiting the respondent, Joseph M. Handlan, Judge of the Circuit Court of Wood County, from conducting a trial and proceeding further against the petitioner in a contempt matter now pending in said court.
This controversy arises as a result of a divorce action instituted in October, 1976 by James Blaine Hendershot, Jr., the son of the petitioner, against Jennie Lou Hendershot. A preliminary hearing was held on July 11, 1977, during which the court heard testimony from witnesses for the parties and from the parties themselves. At the conclusion of that hearing the court awarded custody of the infant daughter to the mother, Jennie Lou.
The order awarding such custody was entered on July 12, 1977 and, after providing for support money for the child and attorney's fees, proceeded as follows: "The Court having learned that the Plaintiff, James Blaine Hendershot, Jr. did not turn over to the Defendant, Jennie Lou Hendershot, the infant child of the parties . . . and further that the grandparents, James B. Hendershot, Sr. and Anna Hendershot, his wife, have absconded with the child . . . the Court does direct the Clerk of the Circuit Court . . . to issue a capias to the Sheriff . . . or any other law enforcement officer . . . to forthwith arrest and apprehend James Blaine Hendershot, Jr., James Blaine Hendershot, Sr. and Anna Hendershot . . . and deliver the same to Joseph M. Handlan, Judge . . . whose office is located in the Wood County Courthouse . . . to hear the Court's Judgment."
As a result of the July 12, 1977 order a capias was issued and, on November 6, 1977, James Blaine Hendershot, Sr. was arrested and incarcerated in the Wood County Correctional Institution. Bond was imposed in the amount of $20,000.00 which he posted on November 7, 1977, after which he was released. The bond was to secure his appearance before the circuit court on December 15, 1977 to show cause why he should not be held in contempt of court.
The Circuit Court, by order filed November 22, 1977, directed the infant's mother, Jennie Lou Hendershot, to file a contempt petition charging James Blaine Hendershot, Jr., James Blaine Hendershot, Sr., and Anna Hendershot with contempt of court and directing them to appear before said court on December 15, 1977 to show cause why they should not be held in contempt. The contempt petition was filed on November 22, 1977 and, on that same day, the court set December 15, 1977 for a hearing on the matter.
On December 6, 1977 several motions were filed by the petitioner, one of which moved the disqualification of Judge Handlan. By reason of his illness, the petitioner, on December 13, 1977, filed a motion for a continuance. The motion for a continuance was granted and the matter was continued to January 19, 1978. Motions for a bill of particulars and for discovery were granted but motions for a jury trial, dismissal and disqualification were denied. This proceeding in prohibition followed.
Petitioner raised the following questions:
1) can the court punish petitioner in contempt for an alleged violation of a court order when he was not a party to the proceeding?
2) does the fact that petitioner was arrested pursuant to a capias issued at the court's instance preclude subsequent proceedings against him where he had no notice of any charge having been made against him prior to his arrest?
While petitioner was not a party to the divorce proceeding, he was a witness at the hearing and the pleadings disclose that he had actual notice of the court's decision to award custody of the infant to the mother. It seems apparent that because of his relationship to his son and, having physical custody of the child, he was acting in concert with him to frustrate the court's order. A person may be adjudicated in contempt of court for violating an order of which he has actual knowledge, notwithstanding that at the time of the violation the order had not yet been formally drawn up. Belden v. Scott, 150 Ohio St. 393, 83 N.E.2d 58 (1948). Likewise, a person not a party to the proceeding who had actual knowledge of the court's order may be charged with contempt for violating such order if he is acting in concert or privity with a party. Chase National Bank v. City of Norwalk, 291 U.S. 431, 54 S.Ct. 475, 78 L.Ed. 894 (1934); Alemite Mfg. Corp. v. Staff, 42 F.2d 832 (2nd Cir. 1930).
W.Va.Code, 1931, 61-5-26, provides that courts and judges thereof may issue attachment for contempt and punish them summarily only in the instances enumerated therein. Contempt may be civil or criminal. Where the primary purpose is to preserve the court's authority and to punish for disobedience of its orders, the contempt is criminal. Where the primary purpose is to provide a remedy for an injured suitor and to coerce compliance with an order the contempt is civil. The same act may constitute both civil and criminal contempt and contempts may be neither wholly civil nor altogether criminal but may partake of characteristics of both. State ex rel. Arnold v. Conley, 151 W.Va. 584, 153 S.E.2d 681 (1966). We think this is so in the instant case.
The court was made aware of the disobedience of its order in that custody of the infant was not surrendered to the mother at the time designated. Instead, the father, grandfather and grandmother, absconded, allegedly taking the infant with them. W.Va.Code, 1931, 61-5-26(d) provides that the court may punish summarily for "disobedience . .. to any lawful process, judgment, decree or order of said court." Pursuant to this, the court directed the issuance of a capias for all three participants. The petitioner, the grandfather of the child, was the only one found. While we believe that the court could have proceeded to try the petitioner for contempt under section (d) above, the court directed that a contempt petition be filed by the mother and served upon the petitioner and the other participants.
Action on the contempt petition being one in civil contempt, summary punishment was not available to the court. A rule to show cause was served on the petitioner and a hearing was set. The matter is yet to be heard so the petitioner's complaint that he has been found guilty and punished for contempt is without merit. The plain purpose of the capias was to prevent further disobedience of the court's lawful order. No appeal of the court's custody order was taken by the father of the child. Subsequent to said order the father, child and the grandparents simply disappeared. It appears that they sought to evade the process of law and take matters into their own hands. It will be determined in the contempt hearing whether such assumption is true.
Relying on Johnson v. Mississippi, 403 U.S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971), the petitioner contends that he was entitled to notice or hearing before he was arrested. In Johnson, it was held, "If some essential elements of the offense of contempt are not personally observed by the judge, so that he must depend upon statements made by others for his knowledge about those essential elements, due process requires that the alleged contemnor be accorded notice and a fair hearing at which he is given the opportunity to show that the version of the alleged contempt related to the judge was inaccurate, misleading, or incomplete."
The petitioner has been served with notice and a hearing had been set. He seeks to prohibit that hearing on the sole ground that he was apprehended on a capias and required to post bond assuring his appearance at the hearing. The petitioner, without explanation, having evaded the process of the law from July 17, 1977 to November 6, 1977, gave the court no reason to believe that he would appear for hearing at the designated time unless resort was had to apprehension by use of a capias. We believe that the court's action in the circumstances presented here was justified.
In Ex parte Kirby, 100 W.Va. 70, 130 S.E. 86 (1925), the court said: "The history of contempt proceedings shows that the law concedes to judges and courts the inherent right and authority to issue an attachment in the first instance, without an antecedent rule, where the case is urgent or the contempt is flagrant." Reflecting the latitude afforded courts in certain circumstances is the following language of the Court in Point 1, Syllabus of State of West Virginia v. Frew and Hart, 24 W.Va. 416 (1884), "Where a contempt is not committed in open court, the usual course is to issue a rule to show cause why an attachment should not issue, though the attachment sometimes issues in the first instance." In further support of the judge's action in the instant case is the expression of the Court in Kirby, supra : ...
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