Jaikins v. Jaikins

Decision Date26 June 1968
Docket NumberNo. 2,Docket No. 2530,2
Citation162 N.W.2d 325,12 Mich.App. 115
PartiesJames W. JAIKINS, Jr., Plaintiff-Appellant, v. Marian E. JAIKINS, Defendant-Appellee
CourtCourt of Appeal of Michigan — District of US

William R. Vanderkloot, Birmingham, for appellant.

Marian E. Jaikins, in pro. per.

Before McGREGOR, P.J., and GILLIS and MILLER, * JJ.

McGREGOR, Presiding Judge.

This appeal is from the trial court's finding plaintiff guilty of contempt of court for failure to carry out the court's order relative to child visitation rights granted to defendant. The plaintiff husband was granted a divorce by the Oakland county circuit court in accordance with the order of the Michigan Supreme Court, on grounds that the defendant wife and mother was cruel to their children: Maryann, born August 1, 1955, and James, born September 24, 1956, and on other grounds not pertinent to the present issue. Jaikins v. Jaikins (1963), 370 Mich. 488, 122 N.W.2d 673. On the remand, plaintiff was granted custody of the children by the trial court order of January 24, 1964. The court suspended the mother's visitation rights by order of November 30, 1964, and then re-instated such rights February 15, 1965. On March 1, 1965, the appellant father petitioned to suspend again the visitation rights of the mother. Thereafter, a report from the friend of the court was received by the trail judge and on April 27, 1965, without consulting either party, the trial court issued an order scheduling visitation of the children by the mother, custody of the children remaining with the father. 1 On September 15, 1965, defendant petitioned the court to find the father in contempt for violating the visitation order. The court heard testimony and argument of this matter at various times from April 19 until July 5, 1966. At the conclusion of these hearings the court ruled that the plaintiff father should retain custody and that the defendant mother's visitation rights should be suspended, but that the father was in contempt of the court's order of April 27, 1965, as further expanded by a letter from the friend of the court on May 4, 1965. The court's written findings were that the father 'had a responsibility to see that the visitation plan was carried out and that his failure is to the extent of being in contempt of court.'

The court specified certain dates on which no visitation and occurred (May 23, June 6, June 13, June 23, June 27 and June 30, all in 1965) and suggested that there had been no visitation on certain other unspecified dates. A letter from the friend of the court dated May 4th established how and where the visitation was to occur and specified, among other things, that the children be 'delivered' to the mother at Christ Church, Cranbrook, in Bloomfield Hills, Michigan.

After one mutually satisfactory visitation, the record indicates a conflict of testimony as to dates and surrounding circumstances of attempts by the defendant mother to see the children. There was testimony as to the misbehavior of the children, their becoming upset, and their refusal to go with their mother. A psychiatrist testified for the plaintiff father to the effect that the mother was unsure and tense with the children, but that the father could do more to make the visits with the mother successful. The court determined from disputed allegations of the parties that the father did not carry out his part of the visitation order.

After a series of hearings, concluding on July 8, 1966, the trial court issued an opinion, the pertinent part of which reads as follows:

'I am persuaded by the Preponderance of the testimony * * * that Mr. Jaikins did wilfully fail to comply with the order of visitation. * * *

'Specifically, there was no visitation with the boy, James W. Jaikins, III (listing six dates as set out in the order of April 27, 1965).

'The custodial parent was the father, Mr. Jaikins. He was ordered and had a responsibility to see that the visitation plan was carried out. He did not do so. I conclude that he did thwart the plan of visitation. I do not believe that he did so in an insolent manner, but that does not alter the fact that he failed to carry out the court's orders. * * *

'I do find Mr. Jaikins in contempt of court. He is sentenced to the Oakland county jail for 30 days and find $250. He is assessed costs payable to the wife is connection with her expenses, attorney fees and so forth, $1,850.' (Emphasis added)

It is this order, filed July 21, 1966, in compliance with the foregoing opinion, that is the subject of this appeal.

The plaintiff father contends that the contempt order should not be sustained because the court decision did not specify or inform him whether the contempt proceedings were civil or criminal in nature; that the court's order of April 27, 1965, was indefinite and vague, and was erroneously expanded by the friend of the court.

Essentially, the difference between civil and criminal contempt is that the former seeks to change respondent's conduct by threatening him with a penalty if he does not change it, while the latter seeks to punish him for past misdoings which affront the dignity of the court. Criminal contempt being for past misconduct, there is no way for one so convicted to purge himself of the contempt. In re Colacasides (1967), 6 Mich.App. 298, 301, 302, 148 N.W.2d 898. 2

'Every citizen, however unlearned in the law, by mere inspection of the papers in contempt proceedings ought to be able to see whether it was instituted for private litigation or for public prosecution, whether it sought to benefit the complainant or vindicate the court's authority. He should not be left in doubt as to whether relief or punishment was the object in view.' Gompers v. Buck's Stove & Range Co. (1911), 221 U.S. 418, 446, 31 S.Ct. 492, 500, 55 L.Ed. 417.

If the contempt was criminal in nature, the plaintiff should have been advised of the potential criminal nature of the charge against him, either by having to respond to a petition independent of the originally litigated case, or at least be informed from the bench of the possibility of criminal sanctions.

'Another test of whether the contempt is civil or criminal involves consideration of subsequent conduct[12 Mich.App. 121] --an 'after the fact' determination. It may be summarized: Where the contemnor's conduct of noncompliance with the court order has altered the Status quo so that it cannot be restored or the relief intended becomes impossible, there is criminal contempt; however, where the contemnor's conduct of noncompliance with the court order is such that the Status quo can be restored and it is still possible to grant the relief originally sought, there is civil contempt. See Green v. United States (1958), 356 U.S. 165, 197, 198, 78 S.Ct. 632, 650, 651, 2 L.Ed.2d 672, 695, 696.' Harvey v. Lewis (Appeal re List) (1968), 10 Mich.App. 709, 716, 717, 160 N.W.2d 391, 394.

The trial court's finding of contempt was based on the Preponderance of the testimony, the standard of proof in civil cases:

'Without deciding what may be the rule in civil contempt, it is certain that in proceedings for criminal contempt the defendant is presumed to be innocent, he must be proved to be guilty Beyond a reasonable doubt, and cannot be compelled to testify against himself.' Gompers, supra, 221 U.S. 418, 444, 31 S.Ct. 492, 499. (Emphasis added.)

In this case the trial court used the wrong standard of proof to find the father guilty of criminal contempt. In criminal contempt, the respondent retains the constitutional protection against self-incrimination. He cannot be compelled to testify. In the case at bar, the trial court stated at the close of petitioner's proofs:

'I conclude, but only in a prima facie sense, there has been a violation of this order for visitation That requires the proofs of the custodial...

To continue reading

Request your trial
22 cases
  • Crane, In re
    • United States
    • Georgia Supreme Court
    • January 7, 1985
    ...(1968); Fraternal Order of Police v. Kalamazoo County, 82 Mich.App. 312, 266 N.W.2d 805, 807 (1978), accord: see Jaikins v. Jaikins, 12 Mich.App. 115, 162 N.W.2d 325, 329 (1968). But see Detroit Bd. of Educ. v. Detroit Fed. of Teachers, 55 Mich.App. 499, 223 N.W.2d 23 (1974); People v. Kurz......
  • State Bar v. Cramer
    • United States
    • Michigan Supreme Court
    • November 1, 1975
    ...contempt being for past misconduct, there is no way for one so convicted to purge himself of the contempt.' Jaikins v. Jaikins, 12 Mich.App. 115, 120, 162 N.W.2d 325, 328 (1968). There is no doubt that the April 23, 1973 finding was that defendant was guilty of civil contempt. Judge O'Hair ......
  • Bata v. Central-Penn Nat. Bank of Philadelphia
    • United States
    • Pennsylvania Supreme Court
    • June 28, 1972
    ...the Federal Courts, 73 Harv.L.Rev. 353, 354 n. 8 (1959); see generally Annotation 55 A.L.R.2d 979; contra, Jaikens v. Jaikens, 12 Mich.App. 115, 122, 162 N.W.2d 325, 329--330 (1968). Appellant does not dispute this proposition.14 Cf. The Constitution of this Commonwealth prohibits the Gener......
  • Bata v. Central-Penn Nat. Bank of Philadelphia
    • United States
    • Pennsylvania Supreme Court
    • June 28, 1972
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT