Marriage of Neiswinger, In re

• Decision Date: 15 August 1984
• Docket Number: No. 1-883A248,1-883A248
• Citation: 467 N.E.2d 43
• Parties: In re the MARRIAGE OF Charlotte E. NEISWINGER, Petitioner, and Carl E. Neiswinger, Respondent, and The Matter of Direct CONTEMPT OF Witness Robert MEYER.
• Court: Indiana Appellate Court

Page 43

467 N.E.2d 43

In re the MARRIAGE OF Charlotte E. NEISWINGER, Petitioner,

and

Carl E. Neiswinger, Respondent,

and The Matter of Direct CONTEMPT OF Witness Robert MEYER.

No. 1-883A248.

Court of Appeals of Indiana,

First District.

Aug. 15, 1984.

J.J. Paul, III, Indianapolis, for witness/appellant.

Linley E. Pearson, Atty. Gen., Indianapolis, for appellee.

J.D. Calbert, Greencastle, for original respondent.

NEAL, Presiding Judge.

STATEMENT OF THE CASE

Robert Meyer (Meyer) appeals from his conviction for direct criminal contempt for false testimony in the marriage dissolution hearing of Charlotte and Carl Neiswinger in the Putnam Circuit Court.

STATEMENT OF THE FACTS

Meyer testified as a witness for Carl Neiswinger on June 17, 1983 regarding surveillance activities directed toward Charlotte. Meyer stated he took several photographs of Charlotte following the couple's separation, and testified as to the events observed at the time each photo was taken. Charlotte called Maureen McCarty as a witness. McCarty testified she took, developed and printed each of the photographs Meyer had previously identified.

On June 22, 1983, Charlotte filed a "Petition for Findings of Contempt", requesting the trial court to hold Meyer and others in direct contempt of court for testifying falsely. On June 23rd, she filed an amended petition which specifically set out the alleged contemptuous behavior. On July 7th, without a hearing and out of Meyer's presence, the trial court issued an order finding Meyer in direct contempt of court and assigning him to the custody of the Putnam County Sheriff until such time as he purged himself. On July 18th, in Meyer's absence and without hearing, the trial court clarified its order and sentenced Meyer to 90 days in the Putnam County Jail, but eligible for work release. By order book entry on August 1st, the trial court overruled a motion to reconsider filed by Meyer on July 26, stating Meyer had falsely testified and this action constituted direct criminal contempt.

Following a stay granted by this court, Meyer filed his motion to correct errors, upon which a hearing was held. On December 5th, the trial court issued a statement recounting the testimony of Meyer it found to be contemptuous. In this statement, the trial court sustained Meyer's motion to correct errors "in part", without any indication as to which part it granted. It set the cause for hearing but denied Meyer's request for change of judge. We vacate the judgment, affirm in part and reverse in part.

ISSUES

Meyer raises four issues for our review:

I. Whether the trial court erred in finding Meyer in direct criminal contempt without adhering to IND.CODE 34-4-7-7, and whether the court may correct such errors by filing a statement subsequent to the filing of Meyer's motion to correct errors.

II. Whether the trial court violated Meyer's due process rights by finding him guilty of direct criminal contempt and sentencing him to 90 days confinement or work relief in abstentia, without notice to him and without a trial or hearing.

III. Whether the trial court erred in finding Meyer in direct criminal contempt without a public trial before a neutral and detached magistrate, where the contempt charge was not made during the trial proceeding and thus was not necessary to maintain order in the court, and was in fact not made a finding of the trial court until three weeks after the alleged contempt occurred.

IV. Whether the trial court erred in finding Meyer guilty of direct criminal contempt based upon knowledge acquired from another witness's testimony.

DISCUSSION AND DECISION

We begin by pointing out the State has confessed error, and requests this cause be remanded to the trial court for a hearing before a neutral magistrate according to the procedures set out in IND.CODE 34-4-7-8. The Attorney General's admission of error does not relieve us of our obligation to decide the law as applied to the facts in the record in order to determine whether reversal is required. Myers v. State, (1954) 233 Ind. 66, 116 N.E.2d 839.

Meyer attempts to convince this court that false testimony does not constitute direct criminal contempt of court. We are not convinced. Our supreme court's holding in Young v. State, (1926) 198 Ind. 629, 154 N.E. 478, that false swearing by a witness is an obstruction of justice constituting direct contempt, has not been overturned. Further, IND.CODE 34-4-7-2 reaffirms Young, stating a witness, who, while upon the witness stand, shall purposely so demean himself as to retard or disturb the court proceedings shall be deemed guilty of direct contempt. Direct contempt includes a wide variety of conduct disrespectful of and disruptive to the trial court. See McIntire v. State, (1967) 248 Ind. 142, 223 N.E.2d 347. Lying on the witness stand, after taking the oath, is no less of an impediment to court proceedings than refusing to testify; the administration of justice is equally hindered. The fact that the falsity of Meyer's testimony was not apparent until McCarty took the witness stand is of no consequence, all of the relevant testimony was completed "in the presence and knowledge of the court". Brennan v. State, (1961) 242 Ind. 79, 173 N.E.2d 312, 313. It is also of no import that no action was taken by the trial court until after the contempt was brought to its attention by Charlotte. See Johnson v. State In re McDowell, (1981) Ind.App., 426 N.E.2d 104. That the court chose to believe McCarty over Meyer is a valid basis for bringing a direct contempt charge. See In re Oliver, (1948) 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682.

However, the trial court's summary treatment of the contempt charge was improper. Not all conduct amounting to direct contempt warrants the imposition of punishment without due process of law. In re Oliver, supra. Summary action is appropriate only to maintain the authority and dignity of the courtroom, when the contemptuous act is immediately recognized and chargeable in the actor's presence. The severity of summary contempt proceedings is softened by the fact the contemnor is present and immediately apprised of his misdeed. He is entitled to answer the contempt charge or explain his actions before the trial court pronounces judgment, and the entire occurrence is thereafter reduced to writing. IND.CODE 34-4-7-7.

In the present case, the deceptive testimony of Meyer did not come to light while he was on the witness stand, thus, the charge of contempt was not necessary to maintain decorum in the court. Since the contempt was not discovered and filed in Meyer's presence, due process requires that he be informed of the specific conduct on which it is based, and that he be afforded an opportunity to answer the charge and defend his behavior before judgment is imposed. In re Oliver, supra; Garlin v. State, (1975) 163 Ind.App. 570, 325 N.E.2d 515. The procedure set out in IND.CODE 34-4-7-8 is appropriate here, omitting the last sentence addressed to indirect contempt.

The statement filed by the court on December 5th was sufficient notice to Meyer of the charges against him, and provides an adequate report of the contemptuous testimony for our purposes. The fact this statement was not issued until Meyer's motion to correct errors had been heard does not change its usefulness. See Skolnick v. State, (1979) Ind.App., 388 N.E.2d 1156.

As the trial court ordered on December 5th, a hearing on the contempt charge set out in the court's statement must be held before Meyer may be punished. However, contrary to the trial court's ruling, this hearing must be presided over by a new judge. We note that Meyer has failed to request a...