Kaur v. Singh (In re Sheffield)
Decision Date | 15 February 2013 |
Docket Number | 2110913. |
Parties | Ex parte Billy J. SHEFFIELD II. (In re Rupinder Kaur v. Ajit Singh). |
Court | Alabama Court of Civil Appeals |
Billy J. Sheffield II, Dothan.
Submitted on appellant's brief only.
Billy J. Sheffield II appeals from a judgment of the Henry Circuit Court (“the trial court”) that found him in contempt for failing to appear at a scheduled hearing. Sheffield is an attorney who was hired by Rupinder Kaur to represent her in a divorce action. The record on appeal indicates that Ajit Singh, Kaur's former husband, filed a motion in the trial court to release his passport after the conclusion of the divorce proceedings. Kaur, through Sheffield, filed an objection. On May 22, 2012, the trial court scheduled a hearing on Singh's motion to be conducted on June 5, 2012, at 9:00 a.m. It is undisputed that Sheffield did not appear at that hearing. On June 5, 2012, at 10:37 a.m., Sheffield filed a motion to withdraw as counsel for Kaur.
On June 13, 2012, the trial court entered a judgment finding Sheffield in contempt “for his failure to appear at a scheduled hearing.” The trial court fined Sheffield $100 and costs of court, if any, and stated that Sheffield could purge himself of contempt upon payment of those sums. On the same day, Sheffield filed a motion to set aside the contempt judgment, arguing that the trial court had not complied with Rule 70A, Ala. R. Civ. P., and that he had not been given an opportunity to be heard. Sheffield requested a hearing on his motion. Also on June 13, 2012, the trial court granted Sheffield's motion to withdraw as Kaur's attorney, and it denied Sheffield's motion to set aside the contempt judgment.1 Sheffield filed a timely notice of appeal on June 20, 2012.
On appeal, Sheffield argues that the trial court erred by finding him in contempt. The trial court's judgment does not specifically state whether Sheffield was found guilty of civil contempt or criminal contempt. Criminal contempt is defined in Rule 70A(a)(2)(C), Ala. R. Civ. P., as:
“(i) Misconduct of any person that obstructs the administration of justice and that is committed either in the court's presence or so near thereto as to interrupt, disturb, or hinder its proceedings, or
“(ii) Willful disobedience or resistance of any person to a court's lawful writ, subpoena, process, order, rule, or command, where the dominant purpose of the finding of contempt is to punish the contemnor.”
Our review of the record and the trial court's judgment leads us to conclude that the trial court found Sheffield guilty of criminal contempt. CompareRule 70A(a)(2)(D), Ala. R. Civ. P. ( ). See also Ingram v. Allred, 119 So.3d 1176, 1177–78 (Ala.Civ.App.2013) ( ); Ex parte Baker, 623 So.2d 304, 306 (Ala.Civ.App.1993) ( ).
The trial court's judgment also does not state whether the trial court found Sheffield guilty of direct contempt or constructive contempt. “Such a determination is important because the procedure for finding a party in direct contempt is different from the procedure required before a party can be found guilty of constructive contempt.” Dreading v. Dreading, 84 So.3d 935, 937 (Ala.Civ.App.2011). Rule 70A(a)(2), Ala. R. Civ. P., defines “direct contempt” and “constructive contempt” as follows:
“(A) ‘Direct contempt’ means disorderly or insolent behavior or other misconduct committed in open court, in the presence of the judge, that disturbs the court's business, where all of the essential elements of the misconduct occur in the presence of the court and are actually observed by the court, and where immediate action is essential to prevent diminution of the court's dignity and authority before the public.
“(B) ‘Constructive contempt’ means any criminal or civil contempt other than a direct contempt.”
Rule 70A(b) and (c), Ala. R. Civ. P., provide the procedure for finding a party guilty of either direct contempt or constructive contempt:
“(b) Summary Disposition of Direct Contempt Proceedings.
“(c) Disposition of Constructive Contempt Proceedings.
There is no indication in the record that the contempt proceeding was initiated by the filing of a petition, that the trial-court clerk issued process for such a petition in accordance with the Rules of Civil Procedure, or that a hearing on such a petition was conducted. Because the procedure set forth in Rule 70A(c) was not followed, the trial court must have found Sheffield in direct contempt in order for the contempt judgment to be valid. See Dreading, 84 So.3d at 939.
Sheffield, however, argues that his failure to appear at the June 5, 2012, hearing could not be construed as a direct contempt. In support of his argument, Sheffield cites Quick v. State, 699 So.2d 1300, 1301–02 (Ala.Crim.App.1997). In Quick, the Alabama Court of Criminal Appeals held that an attorney's failure to appear at a scheduled hearing is constructive, not direct, contempt.2 In reaching that determination, the Court of Criminal Appeals reasoned as follows:
“The Alabama Supreme Court stated, in State v. Thomas, 550 So.2d 1067 (Ala.1989):
“ ‘Direct contempts are those committed in the judge's presence, where all of the essential elements of the contempt are under the eye of the court, and are actually observed by the court ....
“
“550 So.2d at 1072 (emphasis added).
“While our research has not revealed a case specifically addressing whether the failure of an attorney to appear at a hearing is considered a direct or a constructive contempt, the Alabama Supreme Court, in In re Tarpley, 293 Ala. 137, 300 So.2d 409, 413 (1974), addressed this issue when an ‘on-call’ witness, a doctor, failed to appear as ordered by subpoena. In Tarpley, the Court held:
“ ‘Now we must consider whether the failure to appear constituted direct or constructive contempt. The Court of Criminal Appeals utilized Dangel, Contempt, 7, Section 14, to characterize disobedience of process as an indirect contempt as follows:
“ ‘ “ ...
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...This is the essence of criminal contempt. Pate v. Guy, 934 So. 2d 1070, 1072 (Ala. Civ. App. 2005). See also Ex parte Sheffield, 120 So. 3d 1091, 1094 (Ala. Civ. App. 2013). Thus, the trial court's order properly found the mother in criminal contempt. Civil contempt is a party's failure to ......
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...conclude that the record demonstrates that the juvenile court found the father to be in criminal contempt. See Ex parte Sheffield, 120 So.3d 1091, 1094 (Ala.Civ.App.2013). That determination, however, does not end the inquiry regarding the nature of the contempt finding. The juvenile court'......