Keller v. Keller, 34315

• Citation: 52 Wn.2d 84,323 P.2d 231
• Decision Date: 21 March 1958
• Docket Number: No. 34315,34315
• Parties: Anna KELLER, Respondent, v. William KELLER, Appellant.
• Court: United States State Supreme Court of Washington

Page 84

52 Wn.2d 84

323 P.2d 231

Anna KELLER, Respondent, v. William KELLER, Appellant.

No. 34315.

Supreme Court of Washington, Department 1.

March 21, 1958.

Olwell & Boyle, Seattle, Rummens, Griffin, Short & Cressman, Seattle, for appellant.

Kennett, McCutcheon & Soderland, Robert C. Wells, Seattle, for respondent.

WEAVER, Justice.

This is a contempt of court proceeding arising in a divorce action. Defendant husband appeals from an 'Order Revoking 'Suspension of Sentence' and Directing the Issuance of a Warrant of Arrest.' Defendant was released from custody, under bond, pending appeal to this court.

The ultimate facts that we need consider are these:

July 5, 1956, the court adjudged defendant in contempt for failure to comply with previous orders of the court. The court found that defendant 'had the means and property available from which' certain support money payments could have been paid. He was sentenced to serve six months in the county jail. The sentence was suspended, provided defendant would (a) remove himself forthwith from the premises occupied by the community; (b) pay certain moneys into the registry of the court for the support of his wife, in accordance with a schedule set forth; and (c) not molest his wife during the pendency of the divorce action.

The order further provided that, if defendant failed to comply with these conditions, the 'suspension of sentence' would be revoked, a warrant would issue for his arrest, and he would be committed to the county jail for a period of six months.

The order of July 5, 1956, also provided that when

'* * * he [defendant] can establish to this court that he has complied with all the aforementioned conditions, he may apply to this court to be purged of his said contempt of this court, and shall be entitled to be purged of his said contempt, provided he has fully complied with all subsequent orders entered in this court and cause.'

April 17, 1957, the wife's motion for revocation of the suspended sentence came on for hearing before another department of the superior court. It resulted in the entry of an order committing defendant husband to jail for six months. It is from this order that defendant appeals.

It will be helpful if we analyze certain statutes and decisions of this court before referring to appellant's assignments of error.

In general, contempt proceedings in this jurisdiction may be placed in three categories: (a) criminal contempt prosecuted under RCW 9.23.010; (b) civil contempt initiated under RCW 7.20.010 et seq.; and (c) contempt proceedings resulting from the long-exercised power of constitutional courts (1) to punish summarily contemptuous conduct occurring in the presence of the court, (2) to enforce orders or judgments in aid of the court's jurisdiction, and (3) to punish violations of orders or judgments.

(A) RCW 9.23.010 lists eight particular contempts which constitute misdemeanors and are puncishable as such. State v. Angevine, 1919, 104 Wash. 679, 177 P. 701; State v. Lew, 1946, 25 Wash.2d 854, 172 P.2d 289; and State v. Boren, 1953, 42 Wash.2d 155, 253 P.2d 939, are illustrative of this category. In all three cases, contempt proceedings were initiated by information filed by the prosecuting attorney. In the Boren case, supra, we held that the accused was entitled to a jury trial because, being charged with a criminal offense (a misdemeanor), he was guaranteed, by our state constitution, the right to trial by jury. In the Angevine case, supra, the accused was tried and convicted by a jury. In the Lew case, supra, we held that the accused had been properly charged with a crime, having willfully violated an order entered in a civil proceeding. Such prosecutions have usually been referred to as criminal contempt proceedings.

(B) RCW 7.20 has, on some occasions, been referred to as the 'general contempt statute' (State v. Boren, supra) and, on other occasions, as the 'civil contempt statute.' In one case, the statute is designated as 'quasi or incidentally criminal in its nature' (State ex rel. Dailey v. Dailey, 1931, 164 Wash. 140, 2 P.2d 79, 81) and, in another, as 'more accurately described as being sui generis.' State v. Sanchez, 1940, 4 Wash.2d 432, 435, 104 P.2d 464, 465.

RCW 7.20.010 sets forth twelve acts and omissions that are deemed to be contempts of court. The first two sections apply to acts or ommissions occurring in the presence of the court; the remainder, to acts or omissions occurring outside 'the immediate view and presence of the court.'

If the contempt is committed in the presence of the court, it may be punished summarily (RCW 7.20.030); if committed outside the presence of the court, the statute outlines the procedure by which the matter may be brought to the attention of the court by affidavit, which may result in a show cause order or a warrant of arrest. RCW 7.20.040. The statute does not designate by whom this affidavit may be filed; however, RCW 7.20.060 provides:

'In the proceeding for a contempt, the state is the plaintiff. In all cases of public interest, the proceeding may be prosecuted by the district attorney on behalf of the state, and in all cases where the proceeding is commenced upon the relation of a private party, such party shall be deemed a co-plaintiff with the state.'

Thus, it would appear that, although 'the state is the plaintiff,' the proceeding may, under proper circumstances, be initiated by a private party.

While conviction under RCW 9.23.010 is entirely punitive, judgment of contempt under RCW 7.20 may be both coercive and punitive. If the contempt consists of the omission or refusal to perform an act, 'which is [so says that statute] yet in the power of the defendant to perform,' he may be imprisoned until he shall have performed it (RCW 7.20.110); but this section does not appear to be mandatory. The punitive provisions of RCW 7.20 are set forth later in this opinion.

Under RCW 7.20, the contemnor is not entitled to a jury trial. State ex rel. Dailey v. Dailey, 1931, 164 Wash. 140, 2 P.2d 79; State v. Zioncheck, 1933, 171 Wash. 388, 18 P.2d 35, 23 P.2d 1118; Blanchard v. Golden Age Brewing Co., 1936, 188 Wash. 396, 423, 63 P.2d 397; State v. Boren, 1953, 42 Wash.2d 155, 159, 253 P.2d 939.

In a large measure, this court is responsible for a certain amount of confusion, because we have not always made plain and definite the distinction between RCW 9.23.010 and RCW 7.20. See State v. Boren, supra. The similarity between the two statutes is apparent; in many respects, they parallel each other. The same act may constitute contempt of court under both statutes.

The fundamental distinctions are these:

RCW 9.23.010 is a criminal statute--it is punitive; proceedings thereunder must be instituted in the name of the state by the prosecuting attorney; the accused is entitled to a jury trial.

On the other hand, proceedings under RCW 7.20 may be both coercive and punitive. Although the 'state is the plaintiff,' proceedings may be initiated by either the prosecuting attorney or a private party, and the contemnor is not entitled to a jury trial.

(C) The third category of contempt proceedings--the power to enforce orders and judgments and to punish for contempt for disobedience of mandates--is an inherent power of a constitutional court.

'The power comes into being upon the very creation of such a court and remains with it as long as the court exists. Without such power, the court could ill exercise any other power, for it would then be nothing more than a mere advisory body. * * *

'The power to punish for contempt of court being essential to the efficient action of the court and the proper administration of justice it is lodged permanently with that department of government, and the Legislature may not, by its enactments, deprive the court of that power or curtail its exercise.' Blanchard v. Golden Age Brewing Co., 1936, 188 Wash. 396, 423, 63 P.2d 397, 408, and cases cited.

Appellant's assignments of error raise two questions that were well stated by appellant's counsel in his closing argument to this court. He said:

'We are not standing before this court and disputing the power of the superior court to enforce its orders. Our dispute in this case is over the procedure followed and in the extent of the punishment.' (Italics ours.)

First, we consider the procedure.

Appellant could have been charged with contempt by reason of RCW 9.23.010(4), because his conduct, which culminated in the order of July 5, 1956, constituted 'wilful disobedience to the lawful process or mandate of a court.' He could have been charged under the general contempt statute, for his conduct constituted 'disobedience of any lawful judgment, decree, order, or process of the court.' RCW 7.20.010(5). Instead, he was brought before the court in the original action, by show cause order issued by reason of the inherent power of the court, (a) to enforce its judgments in aid of the court's jurisdiction and (b) to punish for contempt. Appellant's wife chose to sign an affidavit in support of a motion for issuance of an order of contempt and filed it in the original action. She did not choose to proceed against appellant under the provisions of RCW 7.20 or RCW 9.23.010.

The remedy sought was fundamentally coercive. Appellant's wife wished to be free of molestation; she needed the support money previously ordered paid. It is apparent that the movant, at the inception of this contempt proceeding for the breach of existing orders of court, had a certain limited choice. If however, the sole purpose and result of this contempt proceeding had been criminal and punitive in nature, the movant's choice would have disappeared and it would have been necessary to bring the action in the name of the state. In re Harrington's Estate, 1931, 163 Wash. 516, 1 P.2d 850.

Appellant's...