Klein v. Snider

• Decision Date: 29 April 1977
• Docket Number: No. 594,594
• Parties: Marvin KLEIN, Petitioner, v. Leo SNIDER, Morton County Sheriff, Respondent. Crim.
• Court: North Dakota Supreme Court

Page 425

253 N.W.2d 425

Marvin KLEIN, Petitioner, v. Leo SNIDER, Morton County Sheriff, Respondent.

Crim. No. 594.

Supreme Court of North Dakota.

April 29, 1977.

Syllabus by the Court

1. Civil contempt proceedings for violation of court orders in divorce cases for child support are preferably to be brought under Chapter 27-10, N.D.C.C., rather than by motion.

2. Alleged civil contemnor is entitled to notice, hearing, and opportunity to defend if contempt is not direct and not committed in the presence of the court.

Daniel J. Chapman, Bismarck, for petitioner.

Patrick A. Conmy, of Lundberg, Comny, Nodland, Rosenberg, Lucas & Schulz, Bismarck, for respondent.

VOGEL, Justice.

This is an original habeas corpus proceeding in which the petitioner challenges the legality of his imprisonment under a 60-day sentence for civil contempt.

The contempt proceeding was based upon a motion by the petitioner's ex-wife, supported by her affidavit, asking that petitioner be found in contempt for failing to make monthly child-support payments of $200, with arrearage of $1,150, for failure to provide health-insurance coverage for the minor child of the parties, for failure to pay $300 and $200 in attorney fees, and for failure to deliver certain personal effects to the ex-wife, all in violation of prior orders of the court.

The only authority provided by statute or rule for contempt proceedings in cases of this kind is found in Chapter 27-10, N.D.C.C. Section 27-10-07 provides that when an act punishable as a criminal or civil contempt by a court of record of this State is not committed in the immediate view and presence of the court, the court, upon being satisfied by affidavit of the commission of the offense, shall make an order requiring the accused to show cause why he should not be punished, or the court may issue a warrant of attachment to the sheriff commanding him to arrest the accused and bring him before the court. Section 27-10-08 provides that an order to show cause issued pursuant to Section 27-10-07 is equivalent to a notice of motion and that subsequent proceedings shall be taken as upon a motion made in the case. Section 27-10-13 provides that when a person appears upon the return of an order to show cause,

" . . . the court, unless the accused admits the offense charged, must cause a complaint in the form of an affidavit to be filed specifying the facts and circumstances of the offense charged against him. The accused, under oath, must make written answer thereto by affidavit within such reasonable time as the court allows therefor and either party may produce affidavits or other proof contradicting or corroborating such answer. Upon the original affidavits, the answer, and subsequent proofs, the court must determine whether the accused has committed the offense charged."

Section 27-10-14 authorizes the court to make a final order for punishment by fine or imprisonment, or both, if it determines that the accused has committed the offense charged.

It is to be noted that this procedure was not followed in the case before us. Instead, the proceeding was by motion. The petitioner made no objection. Such a proceeding by motion is not at all unprecedented. It was used, for example, in Thorlakson v. Wells, 207 N.W.2d 326 (N.D.1973).

We have mentioned at some length the statutory procedure for two reasons. The first is to indicate that it is preferable, if not absolutely required, and the second is that it shows quite clearly that the alleged contemnor is entitled notice, hearing, and opportunity to defend.

The proceeding in the present case was apparently intended to make use of the usual motion procedure, under Rules 7 and 43(e), N.D.R.Civ.P. The use of motion procedure in contempt proceedings is undesirable, and it has been said that,

"A proceeding to find a party in civil contempt for violation of an injunction is not within Rule 43(e) and cannot be resolved on affidavits." 9 Wright & Miller, Federal Practice & Procedure: Civil § 2416, citing Locklin v. Switzer Bros., Inc., 348 F.2d 244 (9th Cir. 1965).

In the case before us, the petitioner and his attorney appeared at the time specified in the notice of motion for the hearing. The attorney then gave to opposing counsel and the court copies of his "Return to Motion for Contempt." The Court, which had previously postponed a hearing on the matter when the attorney for the petitioner declined to proceed with only copies of the original documents, which had not yet been filed, said:

"Mr. Chapman, I see returns to motions. You may have these back. They weren't filed within the twenty-four hours ^* required by the District Court Rules. I consider you wholly in default. The last time we were here, Mr. Chapman, you didn't consent to hear the matter on copies. You raised the Rules, so I am raising the Rules also.

"Is there anything further to be said on these motions?"

When the opposing counsel stated that he considered his client's affidavit sufficient, "unless the Court would request testimony to add details to it," the Court replied, "I would contemplate something like this to be on Affidavits."

The Court then said, "Do you want to make any statements, Mr. Chapman, on anything other than the return to these? Your return isn't timely."

In the return to motion for contempt, which the Court refused to consider, because it was not filed one day in advance of the hearing, the appellant clearly raised the claim that he had " . . . not been employed and has no means with which to make the payments as set forth in the judgment." This is a legitimate and proper defense to a proceeding to hold a divorced husband in contempt for failure to make child-support payments. Thorlakson v. Wells, supra; Hodous v. Hodous, 76 N.D. 392, 36 N.W.2d 554, 12 A.L.R.2d 1051 (1949); State v. Babcock, 64 N.D. 288, 251 N.W....