In re Contempt of Henry
| Decision Date | 17 March 2009 |
| Docket Number | Docket No. 280372.,Docket No. 281318. |
| Citation | 282 Mich. App. 656,765 N.W.2d 44 |
| Court | Court of Appeal of Michigan — District of US |
| Parties | In re CONTEMPT OF HENRY. |
Linda D. Ashford, P.C. (by Linda D. Ashford), Detroit, for Kathy L. Henry.
Before: DONOFRIO, P.J., and K.F. KELLY and BECKERING, JJ.
This criminal contempt matter arises out of the involvement of appellant, attorney Kathy Henry, in the postdivorce judgment child support enforcement case of her brother, defendant Charles Henry. Because appellant has not established error with regard to the trial court's criminal contempt order, we affirm that order. But appellant has established error with regard to her sentencing because the trial court's retroactive application of the amended version of MCL 600.1715, which enhanced the fine recoverable from appellant, violates constitutional ex post facto prohibitions. We affirm in part, vacate in part, and remand for resentencing with respect to the fine imposed, which shall be in accordance with the version of MCL 600.1715 in effect at the time appellant committed the contemptuous acts.
Plaintiff, Nancy Davis, obtained a default divorce judgment in 1994. Plaintiff received sole physical and legal custody of the couples' two children, and defendant was ordered to pay child support to plaintiff. By September 2006, defendant had amassed $30,054.29 in child support arrearages. Both plaintiff and the Oakland County Friend of the Court (FOC) attempted to collect the outstanding child support from defendant. In November 2006, plaintiff learned that defendant's employer, ThyssenKrupp Budd Company, was closing the plant where defendant worked. Defendant had accepted an early retirement offer and had signed a mutual consent retirement benefit package that was due to pay him a lump sum of $75,000 sometime in the month of January 2007.
On November 22, 2006, plaintiff filed a petition for an order to show cause for nonpayment of child support and a motion asking the trial court to direct defendant's payment of a lump sum or appoint a receiver, arguing that the upcoming lump sum payment was her only opportunity to collect the unpaid child support. On receipt of plaintiff's petition, the trial court entered an order on November 28, 2006, ordering defendant to appear on December 13, 2006, and show cause regarding why he should not be held in contempt of court for failure to pay child support in violation of the default divorce judgment dated February 22, 1994.
The matter was assigned to a referee. Plaintiff, her counsel, defendant, and appellant, acting as defendant's counsel, were in attendance at a referee hearing on December 13, 2006. Appellant did not file an appearance as attorney of record for defendant. The referee recommended that defendant be ordered to pay the child support arrearage out of his lump sum payment, and the matter was referred to the trial court. The trial court indicated it could not hear the matter that day and instructed counsel to request that the matter be set for another date. Plaintiff's counsel did so for December 20, 2006. On that date, the trial court held a hearing regarding the referee hearing. Neither defendant nor his counsel, appellant, attended the hearing on December 20, 2006. Ultimately, on that date, the trial court issued the following order:
Plaintiff having appeared on her Petition to show cause for non-payment of child support and offered oral argument, Defendant having failed to appear, and the court being fully advised;
IT IS HEREBY ORDERED that Plaintiff's motion is granted. Specifically, Plaintiff is awarded the full child support arrearage as of today's date (12/20/06), from the lumpsum payment of $75,000 that Defendant is to receive from ThyssenKrupp Bud [sic] and/or UAW Local 306 within 10 days. David Finding [sic] is appointed receiver to collect and disburse said sums through the Friend of the Court and MISDU [Michigan's State Disbursement Unit]. Defendant shall pay $500.00 in sanctions/atty [sic] fees to Plaintiff's attorney which shall also be collected and disbursed from the lumpsum payment by the receiver. An immediate injunction is issued and ThyssenKrupp Bud [sic], UAW Local 306 or any other Agent shall not disburse any funds to Defendant pending contact and direction by the receiver or further court order.
On December 21, 2006, the newly appointed receiver, David Findling, filed a motion for entry of an order delineating his powers and duties as receiver, with a proposed order attached. The trial court held a hearing January 3, 2007, on the receiver's motion dated December 21, 2006. The only person who appeared at the motion was John Polderman, an associate of Findling. The case was called, and the trial court granted the motion and then signed the proposed order attached to the December 21, 2006, motion. At this time, Polderman also informed the court that he had recently learned that ThyssenKrupp Budd Company had already disbursed a check to defendant on December 14, 2006, six days before the court issued its December 20, 2006, order. Polderman stated that he had not heard anything from defendant and that his firm, as receiver, was attempting to trace and recover the funds.
Later on the morning of the January 3, 2007, hearing, appellant checked in with the trial court clerk at about 9:40 a.m., after the case had already been called. The court clerk advised appellant that the motion had been granted. Appellant asked that the case be recalled, and the clerk informed her that recalling the case was not possible.
According to appellant, on January 18, 2007, appellant gave defendant a signed check drawn on her IOLTA [Interest on Lawyers Trust Accounts] account with the amount blank. Appellant directed defendant to go to the FOC and pay his child support arrearages in the amount of approximately $29,000. According to appellant, the FOC would not accept the payment, informing defendant that he would have to turn over the funds to the receiver. Defendant left the FOC and did not contact or pay the receiver.
The next day, January 19, 2007, Findling filed a motion and order to show cause why appellant should not be held in contempt of court. In his motion, the receiver outlined the case against appellant as follows: (1) After being appointed, the receiver learned that ThyssenKrupp Budd Company had disbursed a check to defendant on December 14, 2006, in the amount of $85,367.36, that the cancelled check was endorsed by both defendant and appellant, and that the check was deposited in appellant's IOLTA account. (2) The receiver had directed a letter to appellant on January 11, 2007, by certified mail and fax demanding any information on the check and the location of the funds. He enclosed a copy of the court's December 20, 2006, order and requested a response from appellant by January 18, 2007.(3) The receiver contacted appellant's office on January 18, 2007, but was advised that appellant was unavailable. On the same date, the FOC contacted him, advising him that defendant was at the FOC's office presenting a blank check drawn on appellant's IOLTA account. The FOC advised defendant that he should make payment to the receiver, in accordance with the prior order of the trial court. Defendant left the FOC's office, but did not contact the receiver. (4) On January 19, 2007, Polderman, the receiver's associate, encountered appellant at the Wayne Circuit Court. Polderman personally served appellant with the December 20, 2006, order of the court, as well as the amended order appointing the receiver. Polderman requested that appellant promptly pay the receiver. (5) Also on January 19, 2007, the receiver went to appellant's office and hand-delivered another copy of the amended order appointing the receiver. He contacted appellant on her cell phone and demanded that she turn over the funds in accordance with the court's orders. When the receiver asked appellant if she would comply with the court's orders, appellant indicated that she would file an "emergency motion" and that the receiver should "file [his] show cause." (6) Appellant indicated that she had the funds in her account, but also indicated that she was never properly served with plaintiff's pleadings and that "the December 20, 2006 order does not accurately reflect what this Court ordered."
In conclusion, the receiver requested that the trial court hold appellant in civil contempt of court for "intentionally frustrating and failing to comply" with the court's orders. The receiver also requested that the court sanction appellant in the amount of $500 a day until she complied with the court's orders.
On January 24, 2007, appellant filed a motion to set aside the order appointing a receiver, to modify child support, and to set aside the order entered December 20, 2006. Appellant contended that neither she nor defendant had been notified of the December 20, 2006, hearing and as a result, plaintiff's counsel
unilaterally induced the Court to enter an Order intercepting the proceeds from Defendant's employer, ordering that a receiver be appointed, and that Defendant pay future child support at a rate not commensurate with his income, and also ordering that he must pay counsel for Plaintiff's attorney fees and the expenses for a receiver.
The receiver responded to appellant's motion on January 29, 2007, arguing that appellant's motion was merely an attempt to shift the focus from defendant and appellant's refusal to follow the court's orders, and again asked that the trial court hold appellant in contempt of court for failing to turn over defendant's funds that were in her possession so the receiver could distribute them in accordance with the court's orders. Plaintiff responded to appellant's motion on January 31, 2007, arguing that both defendant and appellant should be...
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