Henderson v. Dudley

• Decision Date: 18 December 1978
• Docket Number: No. 2,No. 78-65,78-65,2
• Citation: 574 S.W.2d 658,264 Ark. 697
• Parties: Ralph HENDERSON, Sheriff, Petitioner, v. Robert H. DUDLEY, Chancellor, et al., Respondents
• Court: Arkansas Supreme Court

Page 658

574 S.W.2d 658

264 Ark. 697

Ralph HENDERSON, Sheriff, Petitioner, v. Robert H. DUDLEY, Chancellor, et al., Respondents.

No. 78-65.

Supreme Court of Arkansas, Division No. 2.

Dec. 18, 1978.

David A. Hodges, Newport, H. David Blair, Batesville, for petitioner.

Gerald W. Carlyle, Newport, for respondents.

FOGLEMAN, Justice.

Jeanette Stone (now Cole) brought suit for divorce against Danny Stone in the Chancery Court of Jackson County. The decree rendered in that case required the payment of child support by Danny Stone. On December 7, 1977, Danny Stone was found to be in wilful contempt of the chancery court for failure to make the child support payments required of him. Upon this finding, the chancellor sentenced Stone to 40 days in jail, but directed that he be released during the day for employment purposes. A commitment was issued remanding Stone to the custody of the petitioner, Ralph Henderson, as Sheriff of Jackson County, pursuant to the chancellor's finding and sentence. On February 22, 1978, Mrs. Cole filed a verified petition for citation of both Stone and Henderson for contempt of court, alleging that Stone had failed to pay child support as directed and had failed to submit himself to the Sheriff of Jackson County at night during the 40-day sentence and that Henderson had ignored the court's order and allowed Stone to be free from custody during the nighttime from about December 8, 1977 until January 16, 1978. She further alleged that Henderson had personal knowledge that Stone was not only being allowed to stay at home at night, but during the daytime when he was not employed and that Stone was drinking alcoholic beverages at the Glaze Restaurant. This petition was presented to Chancellor Robert H. Dudley, the presiding judge of the Chancery Court of Jackson County, in vacation, at Pocahontas, on February 22, 1978, without notice to Henderson and without any process having been served on him. The chancellor, without hearing any evidence, issued an order directing Henderson to appear in the Chancery Court of Jackson County, on the 13th day of March, 1978, at 10:00 a. m. to "show cause, if any, why he should not be held in contempt of this court for his failure and refusal to comply and obey the court's orders . . . ." Petitioner filed a special appearance on March 13, 1978, challenging the jurisdiction of the court by motion to quash the order to show cause. When the chancery court denied this challenge, petitioner sought to overturn the chancellor's ruling by petitioning this court for writs of prohibition, mandamus and certiorari, alleging that the chancery court was acting in excess of its jurisdiction. We find that petitioner is not entitled to any of the writs sought and dismiss his petition.

The first contention made by petitioner is that the alleged contempt was constructive, not having been committed in the presence of the court, and that a proceeding to punish for such a contempt must be initiated by an affidavit of a person or persons who witnessed the contemptuous conduct or otherwise have knowledge of it. He argues that there was no preliminary affidavit or information filed to bring the subject matter of this alleged contempt to the attention of the trial court in this proceeding and that, as a result, the chancery court had no jurisdiction to issue the order to show cause. Petitioner relies upon York v. State, 89 Ark. 72, 115 S.W. 948 and cases from other jurisdictions. Even if York is applicable, we do not agree that it mandates the result reached by petitioner. In York, no affidavit, information or statement of facts was presented to the court as a foundation for proceedings for contempt. We merely held that, in all cases of constructive contempt, i. e., contempt not committed in the immediate presence of the court, since the court could not take judicial notice of an offense committed outside its presence, it was necessary that the matter be brought to the attention of the court by a preliminary affidavit or information before an order to show cause or other process could be served. The judgments punishing the respondents there were quashed because the chancery court proceeded without any affidavit "or its equivalent."

We noted the holding in York in the later case of CarlLee v. State, 102 Ark. 122, 143 S.W. 909. There, the judgment punishing the alleged contemnor was quashed on certiorari by a court divided, not only on the necessity of an affidavit to initiate that proceeding, but on the grounds for quashing the writ. The opinion, however, was authoritative as to "the power of the court to initiate the proceeding by an order first made of record, as stated therein or a statement of the facts entered of record and signed by the judge in vacation." In that respect we said:

Under our system of procedure, the accused is entitled to be informed with reasonable certainty of the facts constituting the offense with which he is charged and an opportunity to make defense thereto his day in court. The different kinds of procedure have been outlined for the punishment of other offenses, but the statute, ¹ as to this one, says only that he shall be notified of the accusation and have a reasonable opportunity to make his defense.

There must be an accusation before the accused can be notified of it, and there is no reason why the court in session cannot recite that the matter offending has come to its knowledge, setting it out in an order, and direct a citation thereon to show cause. This was done by the Supreme Court in the case of the State v. Morrill, (16 Ark. 384) and was as effectual a notice of the charge or accusation as an affidavit or information would have been. The summons and warrant of arrest are but to notify and bring the accused into court to answer the charges there made against him and the citation in this case, although it contains the whole matter constituting the offense with which the petitioner was attempted to be charged, was not a charge of record for him to answer, or an accusation within the meaning of the statute, the notice having been issued in vacation, by authority of the clerk alone, so far as the record shows, there being no order of the court authorizing the issuance of the citation, and without an order of the court first made setting out the charge, or a statement thereof made of record and signed by the judge of the court in vacation. * * *

Still later, we distinguished York on the basis that the statute on which that proceeding was based (Ark.Stat.Ann. § 32-401 (Repl.1962)) related only to disobedience of injunctions and that in CarlLee the applicable statute was Ark.Stat.Ann. § 34-903. See Hall v. State, 237 Ark. 293, 372 S.W.2d 603. In Hall, we held that York was not controlling. We also held that, as in CarlLee, compliance with § 34-903 was sufficient; that an attachment for disobedience of an order of court could be issued without the affidavit of a third person setting out the facts; and that one charged with contempt for violation of a court order was not prejudiced when the alleged contemnor was informed of the basis of the charge in the attachment itself, was advised of the facts constituting the charge at the outset of the hearing and did not request a continuance. We supported the logicality of our position that a supporting affidavit was not required by quoting from CarlLee, as follows:

"The spectacle of a court of record and general jurisdiction being without power to initiate a proceeding to punish for contempt * * * without an affidavit of some third person first made, setting out the charge, would be pitiful in the extreme and was not contemplated by our statutes and under our Constitution. The court would thus be rendered impotent, powerless to protect its authority, and enforce its mandates and retain the respect and confidence of the people, for whose benefit it was organized and exists, except by the grace of some third person."

We had, prior to the decision in Hall, expressly recognized the power of a chancellor to initiate the process for adjudication of contempt for failure to comply with orders of the court by issuing a citation upon information coming to its attention, without any formal complaint having been filed. Ray, Ex parte, 209 Ark. 739, 192 S.W.2d 225; Turk & Wallen v. State, 123 Ark. 341, 185 S.W. 472. See also, Ex parte Coulter, 160 Ark. 550, 255 S.W. 15.

Thus, it can be seen that this court has taken the position that an order of court setting out the charge, or a statement thereof, containing the whole matter constituting the offense with which the alleged contemnor is charged, is the equivalent of a supporting affidavit. It was made quite clear in Spight v. State, 155 Ark. 26, 243 S.W. 860, that, upon the authority of CarlLee, a charge of contempt for disobedience of process may be initiated by the court without the aid of an affidavit. Although, in this case, we need not go so far as to say that the order to show cause, in and of itself, was sufficient to meet the requirements for a proper charge, the pertinent parts of it do state such a charge, viz:

ORDER

On verified Petition of the petitioner, Jeanette Stone Cole, alleging the following:

(1) That the defendant, Danny Stone, has failed and refused to comply with the Court's Order rendered herein on December 7th, 1977, more particularly to-wit:

(a) by his failure to pay child support since the rendition of the Judgment and Commitment on December 7th, 1977; and

(b) his failure to submit himself to the custody of the Sheriff of Jackson County, Arkansas, during the nighttime and to only be released for employment purposes during his forty (40) day jail sentence.

(2) The defendant, Ralph Henderson, Sheriff of Jackson County, Arkansas, has failed and refused to comply with the Court's Order rendered herein on December 7th, 1977, more particularly, to-wit:

"IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED

by the Court that the Defendant be...