Houston v. Dist. Ct.

• Citation: 135 P.3d 1269
• Decision Date: 15 June 2006
• Docket Number: No. 46198.,46198.
• Court: Supreme Court of Nevada
• Parties: Joseph W. HOUSTON, II, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, in and for the COUNTY OF CLARK, and the Honorable Sandra L. Pomrenze, District Judge, Family Court Division, Respondents.

Page 1269

135 P.3d 1269

Joseph W. HOUSTON, II, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, in and for the COUNTY OF CLARK, and the Honorable Sandra L. Pomrenze, District Judge, Family Court Division, Respondents.

No. 46198.

Supreme Court of Nevada.

June 15, 2006.

Joseph W. Houston II, Las Vegas, for Petitioner.

George Chanos, Attorney General, and Daniel Wong, Chief Solicitor General, Carson City; David J. Roger, District Attorney, Clark County, for Respondents.

Before the Court En Banc.

OPINION

PER CURIAM.

In this petition, we are asked to interpret and apply NRS 22.030(1), governing summary contempt proceedings for direct contempt committed in a judge's presence. We conclude that a judge's oral contempt order is immediately effective and enforceable to punish the contempt but that a written order, setting forth the conduct constituting the contempt in detail, must thereafter be promptly entered.

FACTS

Petitioner Joseph Houston represents Staci Lofton, who is the plaintiff in a divorce action. Robert Lofton, the defendant in the divorce action, represents himself in proper person. In the divorce case, Houston filed, on Staci's behalf, a motion for temporary spousal support and for an interim award of attorney fees, but he failed to attach an affidavit of financial condition for Staci, as required by Eighth Judicial District Court Rule 5.32(a). He still had not filed the document by the time the motion was heard. Robert also failed to file an affidavit of his financial condition, and he did not file a written opposition to Staci's motion.

At the hearing on Staci's motion, which took ten minutes, the following exchange, which resulted in the court's finding of contempt, occurred:

THE COURT: We're here on Case Number D343177, Lofton v. Lofton. Counsel, please state your name and Bar Number for the record.

MR. HOUSTON: Joe Houston for Staci Lofton, the plaintiff. Bar Number 1440.

THE COURT: Okay. And I note that we have the defendant here in Proper Person.

MR. LOFTON: Right.

THE COURT: And guess what I'm missing?

MR. HOUSTON: I don't need to guess.

THE COURT: In my file.

MR. HOUSTON: The summons had not been filed because we didn't receive it back from the process server. Here's the filed copy.

THE COURT: Okay, but here's what I also don't have. Shall I refer you to EDCR 5.32(a)?

MR. HOUSTON: Sure, why don't you read it to me for me.

THE COURT: You know what it says, Mr. Houston. Where's my Affidavit of Financial Condition?

MR. HOUSTON: I've given him a copy and I have a copy here, but we don't have it filed. I gave—

THE COURT: And the rules require that it accompany the motion, not that it come up later. The only time you can file it a little bit later is with an opposition, but when there's a motion, it's to be accompanied by an Affidavit of Financial Condition. An affidavit—an incomplete affidavit or the absence of the Affidavit of Financial Condition may be construed as an admission that the motion is not meritorious and is cause for its denial.

MR. HOUSTON: Right. May be.

THE COURT: I obviously don't want to put you in that position. I just want to put you on notice that you're going to have to get one to me. And what I have to do is probably continue this.

MR. HOUSTON: And that's fine.

THE COURT: I need the defendant's Affidavit of Financial Condition.

MR. HOUSTON: Actually, we can take a default on him because he hasn't responded and filed an opposition, but—we could have done a submission, but—

THE COURT: You could have. And you know what he can do right now? I'm not going to give him legal advice, but you know very well that he could go straight down to the Self-Help Center—

MR. HOUSTON: He should file an opposition. He should.

THE COURT: Well, no. He can go—he's already answered it, so you can't take a default against him.

MR. HOUSTON: On the motion. I mean a submission on the motion. We could have done a submission.

THE COURT: You can, but I still have to entertain the merits of the motion. And the problem I have with entertaining the merits of the motion is I don't know what the parties' respective financial situation is. And sure—but Mr. Lofton is here. I know he got served, he showed up.

And Mr. Lofton, as you're sitting there smiling, feeling so smug, understand that until you—if you don't file an Affidavit of Financial Condition by the time we reconvene on this matter, I will take the plaintiff's representations as to your income and I'm going to order spousal support. And it's going to be retroactive. And I'm going to order attorney's fees, and it's going to be payable by you to Mr. Houston to pay for this divorce.

So, as you're sitting there very smugly, you might want to—

MR. LOFTON: No, I'm just—I just— honestly, I was just—

THE COURT: — reconsider.

MR. LOFTON: When you was telling me about the Self-Help Center, they've been very nice to me actually, so that's what I was actually smiling about.

THE COURT: From here on out when there's a motion filed, not only are you to submit a written opposition, but you are to include with it—

MR. HOUSTON: I can explain that to you, but I can't.

THE COURT: —an Affidavit of Financial Condition.

So, I have from you, Mr. Houston, no Affidavit of Financial Condition, and a blanket statement that the husband earns substantially more than the wife.

What?

MR. HOUSTON: We expected him to file his pleading; then we would have it. But he makes four thousand a month, we believe. The real issue here—

THE COURT: And what does the plaintiff make?

MR. HOUSTON: —to cut to the bottom thing, she's—

THE COURT: Wait, wait, wait. These parties have no child.

MR. HOUSTON: Right. The real issue here is that—the issue that was to be addressed today is really pretty simple, and maybe you could just hear it and talk to him—and still come back if we need to. But she owned a residence prior to this very short marriage, a few year marriage. The residence was refinanced during the marriage and a hundred thousand dollars was community debts that were paid off, which he would be responsible for paying a portion hereof. We are asking during the pendency of the action, until we can get to trial, that he pay half of the mortgage payments until we come then.

THE COURT: Who's living there?

MR. HOUSTON: She's living there.

THE COURT: What's his financial condition?

MR. HOUSTON: Twice what she makes, but—

THE COURT: Why?

MR. HOUSTON: Why? Because that's what it is.

THE COURT: I don't know what she makes. I don't have her financial statement.

MR. HOUSTON: Well, I'm just saying right now.

THE COURT: I'm not prepared to rule.

MR. HOUSTON: I understand. So let's get—

THE COURT: I don't have enough in front of me.

MR. HOUSTON: Let's get a date. I was just—I just was hoping—I just wanted him to understand that—

THE COURT: I think that the more I— the more I—

MR. HOUSTON: this money that was added to her mortgage is very likely to be a community debt that we could resolve.

THE COURT: The longer I beat attorneys on the head on this issue, and Pro Per parties as well, I'll actually start getting the Affidavits of Financial Condition that I'm supposed to.

MR. HOUSTON: No, you won't. No, you won't. Actually, you won't, because—

THE COURT: Maybe from you I will.

MR. HOUSTON: No, you won't.

THE COURT: Well, if you won't—

MR. HOUSTON: Because I don't do them. You gotta understand that. I—

THE COURT: Mr.—

MR. HOUSTON: You don't do the affidavits.

THE COURT: Mr. Houston—

MR. HOUSTON: Your clients do those.

THE COURT: —you're going to be responsible for submission.

MR. HOUSTON: I know. I know. You are. And there's no doubt about that. But you're missing the point. The point is is that attorneys don't prepare them.

THE COURT: Mr. Houston, I don't miss any points.

MR. HOUSTON: Okay.

THE COURT: I haven't missed any point you've made today.

MR. HOUSTON: The attorneys don't prepare those.

THE COURT: And Mr. Houston, I would be a little more judicious in how you address the Court.

MR. HOUSTON: On what?

THE COURT: I don't think it's exactly respectful for you to be telling me I'm missing a point.

MR. HOUSTON: No, I wasn't. I wasn't being disrespectful. I just said you missed the point.

THE COURT: Well, it came across as very much so.

MR. HOUSTON: Well—

THE COURT: So, you what—

MR. HOUSTON: —then that's the way you took it, not the way it was meant.

THE COURT: Stop. Mr. Houston, stop while you're ahead.

MR. HOUSTON: I'm responding to your questions.

THE COURT: Sit down.

MR. HOUSTON: No, I'm responding to your questions.

THE COURT: Mr. Houston, sit down.

MR. HOUSTON: No. (Mr. Houston sits down.) Oh, God.

THE COURT: What was that?

MR. HOUSTON: Okay, I sat down.

THE COURT: Okay.

MR. HOUSTON: Okay.

THE COURT: The next time I get that from you—

MR. HOUSTON: You're the powerful judge.

THE COURT: You're pushing the envelope, Mr. Houston. I got Stefan over there—

MR. HOUSTON: Okay. I see him. Do what you gotta do.

THE COURT: What are making a—

MR. HOUSTON: You made the big deal out of this, not me.

THE COURT: Okay.

MR. HOUSTON: I just simply said you missed the point. I meant you missed the point.

THE COURT: Mr. Houston, I'm not going to entertain this kind of conduct in my courtroom.

MR. HOUSTON: Okay, then fine. Give us a new date and we'll come back. That's all I want.

THE COURT: Okay. But in the meantime, you're going to pay five hundred dollars to the Clark County Law Library fund.

MR. HOUSTON: For what?

THE COURT: You're sanctioned.

MR. HOUSTON: For what?

THE COURT: For disrespect for the Court.

MR. HOUSTON: Then I want a hearing on that contempt. You have no right to do that. I have not been contemptful.

THE COURT: I actually find that to be direct contempt, and I can sanction it without a hearing. It's sanctioned. You are sanctioned five hundred dollars. It's payable within thirty days from today's date. Bring a receipt to prove that you made the payment.

Now let's get the...