Hopkins v. Jarvis, 80-7268

• Citation: 648 F.2d 981
• Decision Date: 23 June 1981
• Docket Number: No. 80-7268,80-7268
• Parties: Kenneth Lee HOPKINS, Petitioner-Appellant, v. Robert Patrick JARVIS, Dekalb County, Georgia, Respondent-Appellee. . Unit B
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 981

648 F.2d 981

Kenneth Lee HOPKINS, Petitioner-Appellant, v. Robert Patrick JARVIS, Dekalb County, Georgia, Respondent-Appellee.

No. 80-7268.

United States Court of Appeals, Fifth Circuit.

Unit B

June 23, 1981.

William V. Hall, Jr., Decatur, Ga., for petitioner-appellant.

George P. Dillard, Decatur, Ga., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH and THOMAS A. CLARK, Circuit Judges, and LYNNE, ^* District Judge.

KRAVITCH, Circuit Judge.

Kenneth Lee Hopkins was sentenced for criminal contempt in state court for failure to pay court-ordered alimony and child support. In this 28 U.S.C. § 2254 action, he alleges that his conviction and sentence violated due process because he was not given notice that he was subject to criminal contempt. We conclude that Hopkins received adequate notice and affirm the district court's denial of habeas corpus.

The controversy arose out of a divorce action between appellant and his then wife, Sharon Hopkins, in the Superior Court of Dekalb County, Georgia. On July 21, 1978, that court entered an interlocutory order providing that appellant pay his wife $125 per week for her support and that of their minor child. On August 9, 1978, Mrs. Hopkins filed an application to have appellant cited for willful contempt for failure to pay alimony and child support, and on August 29, 1978, the court found appellant in contempt and ordered him to pay all arrearages in full within fifteen days, but imposed no punishment for failure to pay.

Mrs. Hopkins filed a second application to have appellant cited for contempt on September 21, 1978, and on October 25, 1978, the court again found appellant in willful contempt and ordered him to pay all arrearages instanter. The court's written order indicates that no penalty was imposed, but the judge orally in open court warned appellant that any future failure to abide by the court order to make weekly payments "would result in his confinement in the jail of Dekalb County."

On January 3, 1979 Mrs. Hopkins again filed an application to have appellant cited for contempt. Attached thereto was an order to show cause directed to appellant requiring him to appear in Dekalb Superior Court on February 6, 1979 and show cause "why said defendant should not be incarcerated in the common jail of the county until he purges himself of said contempt." When appellant appeared in court on that date, his payments were current, although they had not been timely made. The trial judge nevertheless cited him for willful contempt and sentenced him to be confined in the county jail for two weekends.

Mrs. Hopkins filed a fourth contempt application on March 12, 1979, and again an order to show cause was served on appellant containing the same language as the previous order. Pursuant to this order, appellant appeared in superior court on March 28, 1979, at which time his payments were current. After a hearing, the court found the payments had not been timely made, held appellant in willful contempt, and sentenced him to an additional twenty days in jail and imposed a $200 fine.

Hopkins appealed both criminal contempt citations to the Georgia Supreme Court, and both were affirmed. ¹ He then filed a petition for habeas corpus in federal district court, alleging that the jail sentences he received were in violation of his due process rights under the United States Constitution. ² Specifically, he contends that the notice compelling his attendance in court contemplated only civil contempt, but that when he appeared in court the trial judge cited him for criminal contempt. Finding that appellant received adequate notice that he was subject to criminal contempt, the district court denied the petition.

Although the state court's orders of February 6 and March 28 refer only to "willful" contempt, the parties agree that the sentences imposed were for criminal rather than civil contempt. The most important factor in distinguishing civil and criminal contempt is the purpose of the contempt judgment. In re Dinnan, 625 F.2d 1146, 1149 (5th Cir. 1980); Smith v. Sullivan, 611 F.2d 1050, 1053 (5th Cir. 1980). "If its purpose is to coerce the contemnor into compliance with the court's order or to compensate the complainant for losses sustained, then the proceeding is civil. On the other hand, if its purpose is to punish or to vindicate the authority of the court, then the proceeding is criminal." Dinnan, supra. Under Georgia law the same distinction applies:

"A major factor in determining whether a contempt is civil or criminal is the purpose for which the power is exercised. 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 conditional or unconditional imposition of a fine or imprisonment indicates the purpose of an order. If the contemnor is imprisoned for a specified unconditional period (not to exceed 20 days under Code § 24-2615), the purpose is punishment and thus the contempt is criminal. If the contemnor is imprisoned only until he performs a specified act, the purpose is remedial and hence the contempt is civil.

Ensley v. Ensley, 239 Ga. 860, 861, 238 S.E.2d 920 (1977).

Here, appellant was current in his payments on the dates he was sentenced for contempt in February and March. The sentences were not imposed in order to coerce compliance with the court's orders; rather, they were imposed as punishment for his repeated failures to make timely payments pursuant to the court's orders. Thus, the contempt adjudications were clearly criminal in nature.

This civil/criminal distinction is crucial to appellant's argument. Appellant contends that on both occasions the order to show cause requiring his presence in court led him to believe he was only subject to civil contempt. That notice ordered appellant to show cause why he "should not be incarcerated until he purges himself of said contempt." The fact that he was current in his payments would be a complete defense to civil contempt but would not, of course, be a defense to criminal contempt. Thus, he argues that because he received a misleading notice, he was not prepared to defend criminal contempt charges and, accordingly, the proceeding violated procedural due process. ³

As authority appellant relies on cases construing Rule 42(b), Fed.R.Crim.P., concerning criminal contempt. That rule provides that criminal contempt be prosecuted only on notice and that the notice "state the essential facts constituting the criminal contempt and describe it as such." (emphasis supplied). Notice under Rule 42(b) is insufficient unless the defendant is clearly apprised that the proceeding is for criminal, rather than civil, contempt. United States v. Rizzo, 539 F.2d 458 (5th Cir. 1976). The notice need not include the words "criminal contempt," however, so long as the notice "insures a realization by contemnors that a prosecution for criminal contempt is contemplated." United States v. United Mine Workers, 330 U.S. 258, 298, 67 S.Ct. 677, 698, 91 L.Ed. 884 (1947). In F. T. C. v. Gladstone, 450 F.2d 913, 916 (5th Cir. 1971), we explicated some of the factors that render Rule 42(b) notice sufficient even when the words "criminal contempt" are absent:

The Mine Workers case teaches that reversal is required only where there is a showing that there was prejudice to the contemnor as a result of the failure to clearly designate the nature of the contempt proceeding. In the case at bar, we entertain no serious belief that Gladstone was prejudiced. The notice given Gladstone fully described the conduct which formed the basis of the contempt charge. There is no indication in the record that Gladstone was confused as to the nature of the contempt proceeding. Certainly it must have been plain to Gladstone and his lawyers that the contempt hearing was not a civil proceeding for the purpose of coercing production of the records. The records had already been destroyed. The only conceivable purpose for the hearing was to determine whether Gladstone raised no objection to the notice given him. During the hearing, Gladstone was accorded all the procedural rights due the defendant in a criminal contempt hearing. In light of all these factors, we conclude that no prejudice resulted.

Rule 42(b) is not by its terms applicable to contempt adjudications in state court. Appellant contends, however, by way of analogy to Rule 42(b) that the failure to provide notice that a criminal contempt adjudication is contemplated violates the due process clause of the fourteenth amendment. Although appellant cites no cases directly on point, and we have found none, such an argument merits serious consideration.

Unfortunately for appellant the facts of this case belie his argument. Were we faced only with the written notice provided appellant, we would be constrained to hold the notice insufficient to apprise appellant that he was subject to criminal contempt. Indeed, the language "until he purges himself of said contempt" strongly implies civil, not criminal, contempt.

Appellant, however, overlooks the fact that at his second civil contempt adjudication, on October 25, 1978, the judge admonished him in open court that any future willful failure to abide by the orders of the court would result in his confinement in the county jail. In light of this statement, we find this case very similar to...