Jolly v. Jolly, 86-68
| Decision Date | 17 November 1986 |
| Docket Number | No. 86-68,86-68 |
| Citation | 719 S.W.2d 430,290 Ark. 352 |
| Parties | Gloria J. JOLLY, Appellant, v. Sandy E. JOLLY, Appellee. |
| Court | Arkansas Supreme Court |
William J. Velek, Greenbrier, for appellant.
Ronald L. Burton, Conway, Steve Clark, Atty. Gen., by Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.
The issue in this appeal is whether the court erred in holding the appellant, Gloria Jolly, in contempt and in sentencing her to thirty days imprisonment with twenty-six days suspended. We hold that the contempt citation was erroneous because it was not justified by the conduct of the appellant, and we note that a suspension of a sentence for criminal contempt amounts to a remission.
The appellant and the appellee, Sandy Jolly, were formerly married to each other. Since their divorce in 1982, they have been in court numerous times arguing over property division and support orders. Apparently the home and land on which the appellant and the two children of the former marriage live is adjacent to land on which the appellee operates a dairy farm. Because of their inability to agree on a boundary line, some of the land between the appellant's place and the dairy farm was put in a trust for the children.
The appellee constructed a fence which the appellant contended would, if completed, enclose with the appellee's land not only the land which had been placed in the trust but some land which belonged to her. The fence was not completed when the appellee sent word to the appellant that he intended to spread urea fertilizer on his side of the fence.
Prior to learning of the intended fertilization of the land, the appellant had brought an action in the circuit court as next friend of her children, later joined by her as a party in her own right, contending that the appellee had unlawfully cut trees on the trust land and on her land. At a hearing in that action, the appellant's counsel orally moved the court to enjoin the appellee from spreading the fertilizer on the land in question. The appellant testified that urea fertilizer, which was used, was "totally poisonous" to horses, and the incomplete fence would not keep the children's nine horses from going on the fertilized pasture. The appellee testified that he had already spread the fertilizer. The court ordered a temporary injunction to prevent any further fertilization and set a hearing at which expert testimony could be heard to determine the toxicity of the fertilizer. The court stated that if it were found that the fertilizer was harmful to the horses he would hold the appellee in contempt, and if it were found that the fertilizer was not harmful he would hold the appellant in contempt.
At the subsequent hearing, a court appointed expert, a veterinarian, testified that the fertilizer could be toxic to horses if ingested before being dissolved by rain or other moisture. He further testified that the samples he had taken at random on the land showed no toxic amounts of the fertilizer remained, and he did not see any undissolved clumps of it on the ground. He also said that any ammonia nitrate fertilizer could cause toxicity, and that urea was in common usage for pasture land in the area. He testified the same protective measures, that is, keeping the horses separated from the freshly applied fertilizer, should be taken no matter what sort of fertilizer was used.
The appellant testified she had in fact removed the horses when she learned the fertilizer was to be applied to the trust land and to land of which she had been in possession and claimed ownership, that she had heard urea was harmful to horses, and that she did not wish to take a chance that it would prove harmful.
The court found that the appellant was "using" the court in a contemptuous manner, that she was guilty of contempt. The sentence was thirty days in jail with twenty-six days suspended.
The contumacious conduct found by the court must have been either in the appellant's oral motion to enjoin the spreading of fertilizer on trust land and land she thought was hers or in testifying that urea was "totally poisonous" to horses based upon nothing more than something she had heard.
The court was obviously frustrated by the duration of the bickering between the parties. In announcing his decision he reviewed the 1982 divorce, a motion to intervene filed by the children's maternal grandmother, a motion seeking sanctions for "non-payment," a petition by the appellee claiming he had been threatened with a pistol, and another petition by the maternal grandmother, all of which occurred in 1983. The court apparently regarded the motion which he determined not to have been made in good faith as the capstone of a course of conduct calculated to "use" the court for a purpose for which the court was "not designed."
In Clark v. State, 287 Ark. 221, 697 S.W.2d 895 (1985), we dealt with a trial court's finding that a motion for recusal of the trial judge was contumacious. The motion had apparently accused the judge of bribing a witness, intimidating a witness, making a false statement, and conspiring against the accused in a criminal case. We held the trial judge should recuse in the case, and we said such a motion could possibly be the basis of a contempt citation, leaving the matter open to decision by the substituted trial judge. For the proposition that the motion could serve as the basis of a contempt citation we cited Ex Parte Stroud, 167 Ark. 331, 268 S.W. 13 (1925). In that case a criminal defendant had been held in contempt for causing 167 witnesses to be subpoenaed. Many of the witnesses were never sworn or called to testify. In quashing the contempt judgment we made it clear that an abuse of the process of the court is not a basis for a contempt citation. Quoting Johnson v. State, 87 Ark. 45, 112 S.W. 143 (1908), we said:
The mere filing and presentation of a motion or repeated motions which are thought to be for the purpose of vexation or delay, do not constitute contempt of court. The court may, in the exercise of its inherent powers, strike them from the files because they are not presented to subserve the ends of justice, and are merely for vexation or delay, but, unless they are presented in a contemptuous or disrespectful manner, or unless they contain matter which of itself constitutes contempt, the court cannot treat them as contemptuous merely because they are thought to be for vexation or delay. Take, for instance, motions for continuance or change of venue. The court may well treat repeated motions of this kind as dilatory in their purpose, and refuse to hear them; but, if they are presented in a respectful manner, it shows no contempt of court, and cannot be so treated, unless they involve some violation of the court's order, so as to amount to an obstruction of the administration of justice. [167 Ark. at 333-334; 268 S.W. at 14]
We find no evidence here to...
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...for refusal to proceed to trial. Refusal to proceed to trial was not the issue in the case cited by the dissent. See Jolly v. Jolly, 290 Ark. 352, 719 S.W.2d 430 (1986). The dissent also claims that the deputy prosecutors' due process rights were violated in that they were denied the right ......
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