Hobbs v. State

• Decision Date: 06 October 1993
• Docket Number: No. CACR,CACR
• Citation: 862 S.W.2d 285,43 Ark.App. 149
• Parties: John Burton HOBBS, Appellant, v. STATE of Arkansas, Appellee. 92-1264.
• Court: Arkansas Court of Appeals

Page 285

862 S.W.2d 285

43 Ark.App. 149

John Burton HOBBS, Appellant, v. STATE of Arkansas, Appellee.

No. CACR 92-1264.

Court of Appeals of Arkansas Division I.

Oct. 6, 1993.

Harold W. Madden, North Little Rock, for appellant.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

MAYFIELD, Judge.

On July 26, 1991, John Burton Hobbs was charged with interference with custody, a Class D felony, in violation of Ark.Code Ann. § 5-26-502 (1987). That statute provides in pertinent part:

(a) A person commits the offense of interference with custody if, knowing that he or she has no lawful right to do so, he or she takes, entices, or keeps any minor from any person entitled by a court decree or order to the right of custody of the minor.

(b) Interference with custody is a Class D felony if the minor is taken, enticed, or kept without the State of Arkansas. Otherwise, it is a Class A misdemeanor.

The charges arose when appellant went to Texas to pick up his daughter for visitation. He contended that a standing order of the court, which was served on him in the pending Arkansas divorce case, gave him eight weeks visitation in the summer and that he told his ex-wife when he picked up his daughter that he intended to keep her for eight weeks pursuant to that order.

Mrs. Hobbs had been granted temporary custody of the child, and she did not agree that appellant was entitled to eight weeks summer visitation. Therefore, when her daughter was not returned after one week, she contacted the police, and they eventually arrested appellant in Greenville, Mississippi, at the beginning of the seventh week of visitation. The child was returned to her mother, and the appellant was jailed in Arkansas.

On May 21, 1992, appellant filed a motion to dismiss. One of the reasons for the requested dismissal was:

3. Pleading further, in the divorce proceeding, Case No. E-90-883, Chancellor Andre E. McNeil found Defendant, John Hobbs, guilty of criminal contempt for interference with custody, and assessed fines and time incarcerated; that pursuit of the above-styled case constitutes double jeopardy.

On May 22, 1992, a hearing was held on the motion to dismiss and the judge took it under advisement. On May 28, 1992, the trial was held without a specific ruling from the trial judge on the motion to dismiss. Hobbs was tried by a jury, found guilty of misdemeanor interference with custody and sentenced to sixty-two days (time served) in the county jail and a fine of $500.00. On appeal appellant argues that he was placed in double jeopardy, and the trial court erred in denying his motion to dismiss.

Nancy Hobbs (now Guzman) testified that she and appellant had one child, Tabitha Nicole, and that she was awarded temporary custody on January 29, 1991, and given permission to move the child to San Antonio, Texas, where Mrs. Hobbs grew up, had family, and had been living since November 5, 1990. Appellant was given one week visitation every six weeks. Mrs. Hobbs said appellant picked up the child (then about twenty months old) on June 8 and was to have returned her on June 16. She said she had agreed to allow him to take Tabitha to Greenbrier, Arkansas, to spend the week with his parents, with whom he lived. Mrs. Hobbs said when Tabitha was not returned on June 16, she notified her attorney, had "fliers" printed up showing Tabitha as missing, then came to Arkansas to try to find her daughter and get her back.

On June 19, according to Mrs. Hobbs, she spoke to appellant's father in Greenbrier, but was never able to contact appellant himself. On June 20 an ex parte order was granted which gave law enforcement officials the right to retrieve and return Tabitha to Mrs. Hobbs. She said at that point she had done all she could do and returned home to San Antonio. Mrs. Hobbs said she did not see her child again until July 25, when she got a phone call from the sheriff telling her Tabitha had been found in Greenville, Mississippi, and she flew there to pick her up.

Appellant John Hobbs testified that he and his estranged wife separated on October 4, 1990, and that he didn't see his child for two or three months because Mrs. Hobbs had moved to Texas with the child. At the temporary divorce hearing on January 29 Mrs. Hobbs was awarded temporary custody of Tabitha and appellant was given reasonable visitation. He said attached to the complaint for divorce was a small blue booklet entitled Handbook for Domestic Relations Litigants, 20th Chancery District of Arkansas, which stated that it was a court order and that he was to follow the suggested rules and regulations. He said from page six of that booklet, he understood reasonable visitation to be one week every six weeks, eight weeks in the summer, and alternate holidays. Appellant said that during the temporary hearing he was allowed four days visitation with his daughter.

According to appellant, when he talked to his former wife about summer visitation with Tabitha, he informed her that he intended to pick up the child, return to Greenbrier, and keep her for eight weeks. Appellant said Mrs. Hobbs argued with him that he was not entitled to eight weeks visitation until after the final divorce hearing but when he went to pick Tabitha up in San Antonio, Mrs. Hobbs let Tabitha go with him without any fuss. Appellant said during the time Tabitha was with him he had visited his parents and grandparents and a cousin in Greenville, Mississippi. He admitted he had also gone to Amarillo, Texas, to bid on a job, but said he did not get it, and he then went to Greenville. Appellant said he and his cousin bid on a couple of jobs and got them and that was the reason he stayed in Greenville. He said he was arrested on the seventh week of his eight week visitation period.

Appellant insisted that he did not "kidnap" Tabitha but was simply following the temporary order which said he had "reasonable visitation" and the definition of reasonable visitation contained in the Handbook for Domestic Relations Litigants. He said it "never even crossed my mind" to not return his child to her mother. Appellant also testified that he had waived extradition to Arkansas, and was brought back and jailed for sixty-two days without ever appearing before a judge.

Both the Arkansas and United States Constitutions prohibit placing a person twice in jeopardy for the same offense. Ark. Const. art. 2 § 8; U.S. Const. amend. 5. See also Baggett v. State, 15 Ark.App. 113, 690 S.W.2d 362 (1985). The Arkansas Supreme Court has said that the test of double jeopardy is not whether a defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense, and where two statutes are intended to suppress different evils, conviction under one will not preclude prosecution of the other. Decker v. State, 251 Ark. 28, 471 S.W.2d 343 (1971).

In Baggett the defendant had failed to return the child to the mother at the appointed time. He was found guilty of contempt by the chancery court and sentenced to serve ninety days in jail and pay a fine of $1,000.00. Later, he was found guilty of criminal interference with custody. In that case, the appellant argued that he was placed in double jeopardy. Because the order of the chancery court stated that it would consider remitting part of the monetary fine and jail sentence upon proper application by the defendant, this court found the order to be coercive in nature and held that the contempt order was civil and, therefore, appellant was not placed in double jeopardy. 15 Ark.App. at 120, 690 S.W.2d 362.

In the instant case, Hobbs argues that he was fined and ordered incarcerated for time served and that this constituted criminal contempt. We agree.

In Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988), our supreme court discussed the distinctions between civil and criminal contempt as follows:

The purpose of a criminal contempt proceeding is that it is brought to preserve the power and vindicate the dignity of the court and to punish for disobedience of its order. A civil contempt proceeding is instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of those parties [citations omitted]. However, the substantive difference between civil and criminal contempt often becomes blurred. The character of the relief, rather than the trial court's characterization of the substantive proceeding becomes the critical factor in determining the nature of the proceeding for due process purposes. The Supreme Court of the United States has clearly set out the distinction between the types of relief:

"If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court." Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911). The character of the relief imposed is thus ascertainable by applying a few straight-forward rules. If the relief provided is a sentence of imprisonment, it is remedial if "the defendant stands committed unless and until he performs the affirmative act required by the court's order," and is punitive if "the sentence is limited to imprisonment for a definite period." Id., at 442, 31 S.Ct. at 498. If the relief provided is a fine, it is remedial when it is paid to the...