In re Frieda Q.

Decision Date21 March 2013
Docket NumberNo. 11–1284.,11–1284.
Citation230 W.Va. 652,742 S.E.2d 68
PartiesIn re FRIEDA Q.
CourtWest Virginia Supreme Court


Recognized as Unconstitutional

West's Ann.W.Va.Code, 61–5–26

Syllabus by the Court

1. “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

2. “In reviewing the findings of fact and conclusions of law of a circuit court supporting a civil contempt order, we apply a three-pronged standard of review. We review the contempt order under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.” Syl. Pt. 1, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996).

3. In guardianship and conservatorship proceedings, the time periods specified in Rule 16.10(d) of the West Virginia Trial Court Rules for the disposition by circuit courts of mental hygiene commissioners' recommended findings and orders are administrative, not jurisdictional. A violation of the time frame provisions of Rule 16.10(d) of the West Virginia Trial Court Rules, by either the mental hygiene commissioner or the circuit court, does not divest the circuit court of jurisdiction to consider and rule upon post-appointment issues.

4. “A nunc pro tunc order must be based on some memorandum on the records relating back to the time it is to be effective and such order cannot be entered if the rights of the parties may be adversely affected thereby.” Syl. Pt. 3, State ex rel. Palumbo v. Cnty. Court of Kanawha Cnty., 151 W.Va. 61, 150 S.E.2d 887 (1966).

5. “A civil contempt sanction that sets monetary penalties retroactively before the hearing on contempt for failure to comply with a discovery order cannot be enforced. A monetary per diem penalty is permissible where it is set prospectively from the date of the contempt order as a means of ensuring compliance with the underlying discovery order.” Syl. Pt. 6, State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992).

6. A monetary civil contempt sanction for compensation or damages must be based upon competent evidence of actual injury or harm to the aggrieved party resulting from the contemner's refusal to follow an order of the circuit court. The sanction must be remedial, not punitive.

7. “A circuit court has no power to proceed summarily to punish for contempt of such court except in the instances enumerated in Code, 1931, 61–5–26.” Syl. Pt. 2, State ex rel. Arnold v. Conley, 151 W.Va. 584, 153 S.E.2d 681 (1966).

8. In any contempt case where the sanction imposed is either (1) a determinate term of incarceration, or (2) a monetary penalty payable to the State or to the court, the contemner is entitled to a jury trial. In any contempt case where the sanction imposed is either (1) an indefinite term of incarceration which specifies a reasonable manner in which the contempt may be purged, thereby securing the immediate release of the contemner, (2) the payment of a prospective fine which may be avoided by compliance with the court's order, or (3) the payment of compensation or damages to the party aggrieved, the contemner is not entitled to a jury trial. In any contempt case where the court proceeds without a jury, the contumacious conduct giving rise to the contempt charge must fall squarely within West Virginia Code § 61–5–26(a), (b), (c) or (d).

Michael T. Clifford, Esq., Richelle K. Garlow, Esq., Law Office of Michael T. Clifford, Charleston, WV, for the Petitioner.

Robert P. Martin, Esq., Kristen V. Hammond, Esq., Bailey & Wyant, P.L.L.C., Charleston, WV, for the Respondent, Kanawha County Sheriff.

Jennifer R. Victor, Esq., Victor Victor & Helgoe LLP, Charleston, WV, Guardian ad Litem.


In the proceedings below, the petitioner, Cordelia Q., was held in contempt for failure to obey a court order requiring her to account for the disposition of assets belonging to her mother, Frieda Q., a protected person.1 After careful consideration of the briefs, the appendix record, and the applicable law, we affirm the circuit court's finding that Cordelia Q. was in contempt. Further, we affirm that portion of the $50.00 per diem contempt sanction that applied prospectively from the actual date of entry of the order of contempt; however, we reverse that portion of the sanction that was retroactive, and reverse the sanction insofar as it purported to be for “compensation or damages.”


At the outset of these proceedings, Frieda Q. was a ninety-three-year-old widow, physically frail and mentally infirm. She was living in her own home, which she and her late husband had built when they were a young married couple, with one of her three children, Cordelia Q. On April 18, 2008, acting on a petition filed by Frieda's son pursuant to West Virginia Code § 44A–1–1 et seq. (2010), and following two hearings held before a mental hygiene commissioner,2 the Circuit Court of Kanawha County found Frieda to be a protected person. The court further found that Cordelia was exploiting her elderly mother, neglecting her needs, allowing her home to fall into a filthy, unsanitary and dilapidated condition, and mishandling her finances. The court appointed the West Virginia Department of Health and Human Resources (“DHHR”) as Frieda's guardian,3 appointed the Kanawha County Sheriff's Department (“KCSD”) as her conservator,4and ordered Cordelia to vacate Frieda's home.

Soon thereafter, Frieda was admitted to an assisted living facility, and the conservator initiated an inquiry into Frieda's finances and her ability to pay some or all of the costs of her care.

As part and parcel of this inquiry, on June 2, 2008, the court directed Cordelia to turn over to the conservator a full accounting of what she had done with $51,413.50 she received from selling 1,922 shares of Frieda's stock; 5 an accounting of all Frieda's property, which included real property in Charleston, West Virginia, and Blacksburg, Virginia, a car,6 and several boxes of jewelry;7 documents and bills related to Frieda's indebtedness; and Frieda's will. The accounting was to be done within sixty days and the physical property was to be turned over immediately.

More than five months passed, during which Cordelia did turn over a $10,000.00 cashier's check made payable to Frieda's nursing home, but failed to account for the remaining $41,413.50 or to do anything else she had been ordered to do. The conservator filed a motion for contempt. On October 28, 2008, at the conclusion of a hearing on the motion, the mental hygiene commissioner orally found Cordelia to be in contempt, rejecting her excuses that the documents were difficult to find, that she was trying to comply with the order, and the like. 8

For reasons that are not explained either in the appendix record or in the parties' briefs, the mental hygiene commissioner did not reduce her recommended order to writing and transmit it to the circuit court within seven days, as required by Rule 16.10(d) of the West Virginia Trial Court Rules. In fact, it appears that the proposed order was not signed and transmitted by the commissioner until August 23, 2010.9

On August 25, 2010, at the conclusion of a hearing held for the purpose of reviewing the commissioner's proposed order, the circuit court entered an order nunc pro tunc to October 28, 2008, the date on which the mental hygiene commissioner had orally held Cordelia in contempt. The court found that clear and convincing evidence supported the finding of contempt. The sanctions imposed by the court, in relevant part, were:

(2) Cordelia [Q.] shall be sanctioned for contempt in order to compel her compliance with the Court's order.

(3) Cordelia [Q.] shall pay a fifty dollar ($50) fine per day as a sanction for every day she continues to be in contempt of Court.

(4) The fifty dollar ($50) per day fine is appropriate given the nature of the contempt, the burden placed upon the conservator, and the damage to the protected person's financial well-being caused by the contemptuous acts and/or omissions of Cordelia [Q.].

(5) The fifty dollar ($50) per day fine shall be paid to Frieda [Q.], through her conservator, the KCSD, as a form of compensation or damages, inasmuch as Frieda [Q.] is the party aggrieved by the contemptuous conduct. See Trecost v. Trecost, 202 W.Va. 129, 502 S.E.2d 445, 448 (1998); State of West Virginia ex rel. Robinson v. Michael, 166 W.Va. 660, 276 S.E.2d 812, 818 (1981).

(6) The fifty dollar ($50) per day sanction shall continue unabated until Cordelia [Q.] purges herself of contempt by complying fully with the Court's June 2, 2008, order.

Thereafter, Cordelia's counsel filed a motion to set aside the contempt order, arguing that Cordelia had made good faith attempts to comply with the underlying orders, and that the circuit court had no “jurisdiction or authority” to impose a retroactive fine. Both the conservator and the guardian filed motions to strike, arguing that the grounds contained in Cordelia's motion were legally insufficient, and motions to reduce the sanctions to a sum certain and for judgment. Cordelia's counsel then filed an “Amended/Corrected Motion to Set Aside Contempt Order,” arguing that the imposition of the fine denied Cordelia her right to a jury trial and constituted a taking of her property without due process of law.

A hearing on these motions was set for December 7, 2010, but Cordelia did not appear. The circuit court entered an order of judgment, but stayed its enforcement pending further proceedings. A subsequent hearing scheduled for May 9, 2011, was rescheduled by Cordelia for July 25, 2011 (without notice to opposing counsel).

On June 11, 2011, Frieda Q. died at the age of...

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    ...ball to his career and livelihood. For these reasons, I respectfully dissent. --------- [1] See Syl. Pt. 8, in part, In re Frieda Q., 230 W.Va. 652, 742 S.E.2d 68 (2013) ("In any contempt case where the sanction imposed either (1) a determinate term of incarceration, or (2) a monetary penal......
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    ...the monetary sanction the circuit court imposed on Mr. Schillace, and find that pursuant to this Court's ruling in In re Frieda Q. , 230 W. Va. 652, 742 S.E.2d 68 (2013), Mr. Schillace is entitled to a jury trial on this sanction. We affirm the circuit court's ruling dismissing Petitioner's......
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    ...305 F.3d 211, 217 (4th Cir. 2002) (citing Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510, 22 L.Ed. 205 (1873)).In re Frieda Q., 230 W.Va. 652, 662, 742 S.E.2d 68, 78 (2013). See Bartles v. Hinkle, 196 W. Va. 381, 389, 472 S.E.2d 827, 835 (1996) (stating that the "trial court has broad autho......
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