Marriage of Couey, Matter of

JurisdictionOregon
PartiesIn the Matter of the MARRIAGE OF Shirley Gean COUEY, nka Shirley Badger, Petitioner, and Glen Lee Couey, Respondent. STATE ex rel. Shirley BADGER, Petitioner on Review, v. Glen Lee COUEY, Respondent on Review. CC 28564; CA A62175; SC S37940.
Citation821 P.2d 1086,312 Or. 302
CourtOregon Supreme Court
Decision Date12 December 1991

Jas. Adams, Asst. Atty. Gen., Salem, argued the cause, for petitioner on review. With him on the petition were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Theresa M. Kohlhoff, Wilsonville, argued the cause, for respondent on review.

CARSON, Chief Justice.

The issue in this case is whether a trial court must find that a party acted both willfully and with bad intent before it may find the party guilty of contempt. The trial court found that respondent father willfully had disobeyed a court order, and it found him guilty of contempt. The Court of Appeals vacated the contempt judgment and remanded the case to the trial court to make findings on whether respondent had acted with a "bad intent." Couey and Couey, 105 Or.App. 478, 805 P.2d 716 (1991). We reverse the decision of the Court of Appeals, and affirm the judgment of the trial court.

By a 1974 decree of dissolution, respondent was ordered to make monthly child support payments. After respondent failed consistently to make the payments (notwithstanding his receipt of a significant inheritance), the trial court issued an order for respondent to show cause why he should not be held in contempt for his failure to comply with the order. After a hearing, the trial court made this finding:

"The court finds that, under ORS 33.010(e), respondent is in wilful contempt of the decree herein in that he has wilfully failed to pay child support as ordered in that decree."

ORS 33.010(1)(e) 1 provided, in part, that "[d]isobedience of any lawful judgment, decree, order or process of the court" constituted contempt "of the authority of the court." Although the word "willfully" does not appear on the face of the statute, this court long has recognized the requirement of "willfulness":

"This court has held that, in a contempt proceeding for 'disobedience of any lawful judgment, decree, order or process of the court,' as provided by ORS 33.010(1)(e), there must be evidence sufficient to support a finding that such a violation was 'willful' and that 'punishment for civil contempt should be restricted to cases in which the violation of a court order is willful and with "bad intent." ' See State of Oregon v. Yates, 208 Or 491, 498-99, 302 P2d 719 (1956), and cases cited therein. See also State v. O'Malley, 248 Or 601, 605, 435 P2d 812 (1967), overruled on other grounds 255 Or 544, 546, 469 P2d 36 (1970)." State ex rel Oregon State Bar v. Wright, 280 Or 713, 715, 573 P2d 294 (1977).

Petitioner mother argues that "willfulness" and "bad intent" are the same for these purposes and that the Court of Appeals erred in vacating the trial court's judgment on the ground that there was no finding of "bad intent." For the reasons discussed below, we agree with petitioner.

Several early cases decided by this court gave rise to the requirement that conduct constituting contempt be willful and with a bad intent. In Rust v. Pratt, 157 Or. 505, 510, 72 P.2d 533 (1937), the court quoted with approval the trial court's statement that contempt "is the wilful disregard of the authority of a court of justice." In State ex rel. Grover v. Grover, 158 Or. 635, 639, 77 P.2d 430 (1938), a case involving contempt for failure to comply with a decree ordering payment of spousal support, the court addressed whether the defendant had "willfully" disobeyed the decree. The court quoted a sentence from Felton v. United States, 96 U.S. 699, 702, 24 L.Ed. 875 (1877):

"Doing or omitting to do a thing knowingly and wilfully, implies not only knowledge of the thing, but a determination with a bad intent to do it or to omit doing it."

That was this court's first reference to "bad intent" in the contempt setting. As the passage set out above suggests, the court quoted Felton to illuminate, not add to, the meaning of the term "willfully."

Grover was quoted in State of Oregon v. Yates, 208 Or. 491, 498, 302 P.2d 719 (1956) ("It is perhaps significant that we have expressed the view that punishment for civil contempt should be restricted to cases in which the violation of a court order is wilful and with 'bad intent.' "). In State v. O'Malley, 248 Or. 601, 605, 435 P.2d 812 (1967), overruled on other grounds 255 Or. 544, 546, 469 P.2d 36 (1970), the court stated specifically that, "[i]n a contempt proceeding, willfully means 'with a bad intent,' " citing State ex rel Grover v. Grover, supra.

These cases demonstrate that this court never intended to make "bad intent" an element separate from the requirement of "willfulness." The Court of Appeals in this case cited our opinion in State ex rel. Oregon State Bar v. Wright, supra, for the proposition that, "because a finding of wilfulness alone does not necessarily show that a contemnor acted with bad intent, a separate finding of bad intent is required to support a contempt judgment." Couey and Couey, supra, 105 Or.App. at 481, 805 P.2d 716. 2 However, Wright does not stand for that proposition.

In Wright, the defendant (a nonlawyer) was found in contempt for violating a temporary injunction that restrained him from engaging in the practice of law. This court found that there was insufficient evidence to support the trial court's finding that the defendant's conduct was "willful and with bad intent." 280 Or. at 720, 573 P.2d 294. Each of the several times that this requirement was mentioned in the opinion, it was stated in the conjunctive. The court in Wright did not intend the "willfulness and with bad intent" requirement to comprise two separate elements. Its...

To continue reading

Request your trial
23 cases
  • Mainor v. Nault
    • United States
    • Nevada Supreme Court
    • 22 November 2004
    ... ... exclusive subject matter" jurisdiction over Jason's claims.         NRS 159.093 (1993) provided that:        \xC2" ... ...
  • State v. Nicholson
    • United States
    • Oregon Court of Appeals
    • 2 November 2016
    ... ... her, the trial court rendered findings that not only contradicted, but precluded as a matter of law, a determination that the asserted violation was done willfully. ORS 33.015(2)(b). 1 We ... Mikkelsen v. Hill , 315 Or. 452, 45657, 847 P.2d 402 (1993) (describing history); cf. Couey and Couey , 312 Or. 302, 304, 821 P.2d 1086 (1991) (noting, with reference to former ORS ... ...
  • State v. Welch
    • United States
    • Oregon Court of Appeals
    • 12 December 2018
    ... ... proceedings are inherently stigmatizing, and that judgments of contempt are appealable as a matter of law because of that inherent social stigma.295 Or.App. 413We were persuaded by the states ... State v. Nicholson , 282 Or. App. 51, 61, 383 P.3d 977 (2016) (citing Couey and Couey , 312 Or. 302, 306, 821 P.2d 1086 (1991) ). Doing or failing to do something "willfully" ... ...
  • Marriage of Southworth, Matter of
    • United States
    • Oregon Court of Appeals
    • 14 October 1992
    ... ... I find that the mother is in contempt with regard to this visitation matter." ...         "[A] prima facie case of contempt is shown by proof of (1) the existence of a valid court order; (2) the contemnor's knowledge of the order; and (3) voluntary noncompliance with the order." Couey and Couey, 312 Or. 302, 306, 821 P.2d 1086 (1991). An order finding contempt must be supported by specific findings of fact, including a finding that the violation was "willful." 312 Or. at 304, 821 P.2d 1086. "Willfully" means that the contemnor acted with bad intent. 312 Or. at 306, 821 P.2d ... ...
  • Request a trial to view additional results
2 books & journal articles
  • § 28.3 Lost Profits as Damages in Contract and Tort Cases
    • United States
    • Damages (OSBar) Chapter 28 Loss of Profits
    • Invalid date
    ...Sys., Inc. v. Holst, 102 Or App 247, 794 P2d 7 (1990), disapproved on other grounds by Matter of Marriage of Couey, 312 Or 302, 306 n 2, 821 P2d 1086 (1991), in part because of insufficient evidence. The court characterized the evidence of loss of goodwill before the trial court (testimony ......
  • § 6.8 Disposition of Arrestee's Property
    • United States
    • Criminal Law in Oregon (OSBar) Chapter 6 Arrest
    • Invalid date
    ...92 Or App 194, 198, 757 P2d 454, rev den, 307 Or 101 (1988), overruled on other grounds as stated in In re Marriage of Couey, 312 Or 302, 821 P2d 1086 (1991) (the state could not be held in contempt for failing to obey the court's order to return the defendant's property because the police ......

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