Marriage of Neiswinger, In re

• Decision Date: 30 April 1985
• Docket Number: No. 485S175,485S175
• Parties: In re the MARRIAGE OF Charlotte E. NEISWINGER, and Carl E. Neiswinger. and The Matter of Direct CONTEMPT OF Witness Robert MEYER, Petitioner.
• Court: Indiana Supreme Court

Page 257

477 N.E.2d 257

In re the MARRIAGE OF Charlotte E. NEISWINGER, and Carl E. Neiswinger.

and

The Matter of Direct CONTEMPT OF Witness Robert MEYER, Petitioner.

No. 485S175.

Supreme Court of Indiana.

April 30, 1985.

J.J. Paul, III, Indianapolis, for petitioner-appellant.

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

HUNTER, Justice.

This case is before us on petition for transfer from the Court of Appeals. We grant transfer. The judgment and opinion of the Court of Appeals are vacated.

Petitioner Robert Meyer was called as a witness in a hearing concerning the dissolution of the Neiswingers' marriage. Several photographs were entered as exhibits and Meyer testified repeatedly that he had taken them. Apparently, however, he was not the photographer but had been present when the photographs were taken. A rebuttal witness testified that Meyer had lied and that she had taken the photographs. The trial court believed the petitioner had lied under oath. Meyer's reasons for the apparent lie are not relevant here, and his truthfulness is not in issue.

One week after the dissolution hearing, Charlotte Neiswinger petitioned the court to find Meyer in direct contempt of court for having testified falsely about the photographs. The court granted the petition and, in Meyer's absence and without notice or hearing, summarily found him guilty of direct contempt. The court sentenced Meyer to ninety days in jail.

Meyer's motion to reconsider was denied. However, the court granted, in part only, his motion to correct error, noting the court's failure to provide a statement describing Meyer's allegedly contemptuous acts. Ind.Code Sec. 34-4-7-7 (Burns 1984 Supp.) (direct contempt). Meyer received a stay pending his appeal to the Court of Appeals whose opinion is published as In Re the Marriage of Neiswinger, (1984, First District) Ind.App., 467 N.E.2d 43 (vacated).

The Court of Appeals incorrectly decided that Meyer's alleged conduct constituted direct contempt but it correctly reversed the conviction on the basis that Meyer had been denied due process of law. The Court of Appeals stated that this denial of due process could be remedied by the procedure for indirect contempt citations. It ordered that an impartial, special judge be appointed for further proceedings.

Before proceeding with this opinion, we will provide the relevant Indiana statutes. Indiana's direct contempt and indirect contempt statutes provide in pertinent part as follows:

"34-4-7-1 Direct contempt; disturbing court

"Sec. 1. Every person who shall, by the commission of any felony, misdemeanor, or other unlawful act; or who by talking, moving about, or by signs, or gestures, or in any other manner, in any court of record, while the same is open for the transaction of business, and engaged therein, create any noise or confusion therein, whereby the business and proceedings of said court shall be disturbed, shall be deemed to be guilty of a direct contempt of said court."

Ind.Code Sec. 34-4-7-1 (Burns 1973 Ed.) (emphasis added).

"34-4-7-2 Direct contempt; witnesses

"Sec. 2. Every person who, being sworn to testify as a witness in any court of record, in any trial or proceeding therein, shall refuse to testify touching the same; or who, being required by any court to be sworn in any such trial or proceeding, shall refuse to take an oath or affirmation therein; or who, while upon the witness stand, shall purposely so demean himself, as to retard or disturb the proceedings thereof, shall be deemed guilty of a direct contempt thereof."

Ind.Code Sec. 34-4-7-2 (Burns 1973 Ed.) (emphasis added).

"34-4-7-7 [3-907]. Trial for direct--Appeal.--When any person shall be arraigned for a direct contempt, in any court of record of this state, no affidavit, charge in writing, or complaint shall be required to be filed against him; but the court shall distinctly state the act, words, signs or gestures, or other conduct of the defendant which is alleged to constitute such contempt; and such statement shall be reduced to writing either by the judge making it, or by some reporter authorized by him to take it down when made; and the same shall be substantially set forth in the order of the court on the same, together with any statement made in explanation, extenuation, or denial thereof, which the defendant may make in response thereto; and the court shall thereupon pronounce judgment, either acquitting and discharging the defendant, or inflicting such punishment upon him as may be consistent with the provisions of this chapter; and, if found guilty, the defendant shall have the right to except to the opinion and judgment of the court; and in all cases where the defendant may be adjudged to pay a fine of fifty dollars [$50] or more, to be imprisoned for such contempt, he shall have the right, either before or after the payment of such fine, or undergoing such imprisonment, to move the court to reconsider its opinion and judgment of the case, upon the facts before it, or upon the affidavits of any, or all persons who are actually present and heard, or saw the conduct alleged to have constituted such contempt; and, if the defendant shall fail to present the affidavit of every person present, in support of his motion, the court may direct the affidavits of all such persons as were so present (whose affidavits the defendant may have failed to procure) to be procured; and upon all such affidavits and the original statements of the court, and himself, touching such contempt, the defendant may move the court for a new trial, and recision of its judgment against him; and, if the court shall thereupon overrule such motion, the defendant may except and file a bill of exceptions, as in other criminal actions; and in all cases an appeal shall lie thereupon to the supreme court; or in case such judgments shall have been rendered in any special term of any superior court, an appeal shall lie in the first instance to the general term thereof, and thence, as in other cases, to the supreme court.

Ind.Code Sec. 34-4-7-7 (Burns 1984 Supp.).

"34-4-7-4 Indirect contempt; resisting or delaying process; assaulting, influencing or intimidating witnesses

"Sec. 4. Every person who shall wilfully resist, hinder or delay the execution of any lawful process, or order of any court of record shall be guilty of an indirect contempt of said court; and every person who shall offer, give or promise any reward, or who shall threaten to assault or injure, or shall assault or beat, or in any other manner whatever influence or intimidate or attempt to influence any witness to give, or abstain from giving testimony in any case, or to abstain from attending as such witness in any case, or who shall do any act to put such witness in fear, on account of any testimony which he or she may have given, or who, on account of any such testimony, shall injure, or threaten to injure such witness, shall be guilty of a direct or indirect contempt of the court in which such witness may be called to testify, according as the same may be done in the presence of such court, or elsewhere out of the presence thereof."

Ind.Code Sec. 34-4-7-4 (Burns 1984 Ed.) (emphasis added).

"34-4-7-8 Indirect contempt; service of rule upon defendant; procedure

"Sec. 8. In all cases of indirect contempts the person charged therewith shall be entitled, before answering thereto, or being punished therefor, to have served upon him a rule of the court, against which the alleged contempt may be committed; which said rule shall clearly and distinctly set forth the facts which are alleged to constitute such contempt; and shall specify the time and place of such facts with such reasonable certainty, as to inform the defendant with the nature and circumstances of the charge against him; and shall specify a time and place at which he is required to show cause, in said court, why he should not be attached and punished for such contempt, which time the court shall, on proper showing, extend so as to give the defendant a reasonable and just opportunity to purge himself of such contempt. No such rule as hereinbefore provided for, shall ever issue until the facts, alleged therein to constitute such contempt, shall have been brought to the knowledge of the court by an information, duly verified by the oath of affirmation of some officers of the court, or other responsible person."

Ind.Code Sec. 34-4-7-8 (Burns 1984 Ed.) (emphasis added).

We agree with the Court of Appeals in this: Meyer was denied due process of law and his conviction for direct contempt should be and is hereby reversed. However, we make no suggestions or comments regarding any future proceedings. See e.g. Brennan v. State, (1961) 242 Ind. 79, 173 N.E.2d 312; Grimm v. State, (1959) 240 Ind. 125, 162 N.E.2d 454; LaGrange v. State, (1958) 238 Ind. 689, 153 N.E.2d 593.

We have granted transfer because the Court of Appeals' conclusion that Meyer's conduct constituted direct contempt was erroneous. We hold that giving false testimony in the manner done here, the falsity of which could not be known but only inferred by reference to later testimony and which, unlike, for example, a refusal to testify, apparently caused no disturbance or disruption or palpable offense to the proceedings does not warrant a summary conviction and, therefore, is not a direct contempt. In Re Oliver, (1948) 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682; Brennan v. State, (1961) 242 Ind. 79, 173 N.E.2d 312; Grimm v. State, (1959) 240 Ind. 125, 162 N.E.2d 454; LaGrange v. State, (1958) 238 Ind. 689, 153 N.E.2d 593; Boggs v. State, (1979) 179 Ind.App. 607, 386 N.E.2d 992; Garlin v. State, (1975) 163 Ind.App. 570, 325 N.E.2d 515; People v. Randall, (1980) 89 Ill.App.3d 406, 44 Ill.Dec. 651, 411 N.E.2d 1017. Although the Court of Appeals correctly cited Oliver and Brennan in holding that Meyer was denied due process of law, it did not discuss these cases insofar as they refuted Young v. State, 198 Ind....