Morgan v. Foretich, 86-1137.

• Decision Date: 06 February 1987
• Docket Number: No. 86-1137.,86-1137.
• Parties: Jean Elizabeth MORGAN, Appellant, v. Eric A. FORETICH, Appellee.
• Court: D.C. Court of Appeals

Page 248

521 A.2d 248

Jean Elizabeth MORGAN, Appellant, v. Eric A. FORETICH, Appellee.

No. 86-1137.

District of Columbia Court of Appeals.

Argued November 18, 1986.

Decided February 6, 1987.

G. Allen Dale, Washington, D.C., and Richard L. Ducote, New Orleans, La., for appellant.

John C. Lenahan and Joseph Volpe III, Fairfax, Va., for appellee.

Christopher T. Dunn, Arthur B. Spitzer and Elizabeth Symonds filed a brief for amicus curiae American Civil Liberties Union of the National Capital Area.

Before MACK, BELSON and STEADMAN, Associate Judges.

STEADMAN, Associate Judge:

This appeal arises out of a bitter and litigious child custody and visitation rights dispute. Custody was originally granted to appellant, Elizabeth Morgan, the mother, while appellee, Eric Foretich, the father, was awarded liberal visitation. After an extended period of conflict over visitation and charges against appellee of sexual abuse, the trial court granted appellee's motions for civil contempt against Morgan and ordered her incarcerated for refusing to turn the child over for visitation.¹ Appellant raises numerous issues on appeal. For the purposes of this opinion we need decide only one: Whether the trial court violated appellant's due process rights under the Fifth Amendment in refusing to grant appellant's request to open to the public the final hearing at which she was ordered incarcerated² We hold that the trial court did not make the specific findings that are required by the applicable case law before closing the hearing. Therefore, we remand the record to have the trial court fully articulate the basis of its decision.

I.

Since the issue before us is one of law, we set forth only those facts necessary to put the issue in perspective. The child, H., was born in 1982, after her parents had already separated. On November 8, 1984, Morgan was awarded custody and Foretich given liberal visitation. At that time, the trial court also granted the first of many protective orders that have sealed all the trial proceedings and records in this case.

Beginning in January 1985, appellant began to make accusations that appellee was sexually abusing H. during visitation. Further litigation ensued but appellee retained visitation rights. Appellee's last visit with H. prior to the summer contempt proceedings took place in February 1986. After the February visit, Foretich alleged that appellant repeatedly refused to turn the child over to him for his court ordered visitation. He therefore filed multiple motions to have Morgan held in contempt. Hearings were held in June and July of 1986 on several motions, including Foretich's motions for contempt and change of custody and Morgan's motions for temporary suspension of visitation and to compel discovery. On July 17, the trial judge orally announced his findings of fact and conclusions of law. He found that appellant had disobeyed the visitation orders without lawful justification or excuse, but withheld judgment of contempt contingent upon her turning over the child for visitation on July 19.³

The next hearing, held on August 5, 1986, was to determine whether the court should enter the judgment of contempt which had been held in abeyance on July 17. Appellant stated that H. had not been turned over to appellee on July 19 and proffered to the court evidence that she felt would support a justification defense. Appellant then requested that the courtroom be opened stating that, "inasmuch as she is entitled to a public trial, inasmuch as any person subject to incarceration would be entitled to . . . and that right supersedes the interest in maintaining this in a closed fashion." The court denied the request, stating:

But I think based upon everything I am aware that this is totally an inappropriate time to open this matter in consideration with everything going forward, parties litigating behind closed doors, because all anyone would be seeing is this last one effort on the part of Dr. Morgan to demonstrate to me that the child could not have been turned over or should not have been turned over. I think your request is totally unfair to all the parties involved, so your request will be denied at this time. . . .

The court reserved the possibility that future hearings in this case could be open to the public and that the entire file might be opened at a later date.⁴

II.

Appellant claims that a defendant in a civil contempt proceeding has a Fifth Amendment due process right to a public trial relying on In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948). Appellee first makes three technical objections before addressing appellant's public hearing argument: 1) the issue was not preserved because Morgan never appealed from the August 6 written order that appellee alleges confirmed the closure the previous day;⁵ 2) appellant waived whatever right to an open hearing may exist by failing to assert it at the beginning of the hearings on the contempt motions in June;⁶ and 3) irrespective of any theoretical right, D.C. Code § 16-2344 (1981), required that the trial court close the hearing.⁷ Appellee also contends that the constitutional right to a public trial in criminal cases does not apply in child custody civil suits and that alternatively the closure of the hearing was consistent with the fairness interests normally protected by public trials and compelled by the need to protect the child. Since appellee's technical arguments will be effectively mooted if the hearing had been properly closed, we concentrate directly on the constitutional issues.

III.

We hold that a civil, as well as a criminal, contemnor has a qualified right not to be incarcerated in a secret proceeding. In In re Oliver, supra, a grand jury witness was summarily held in criminal contempt and sentenced in a secret proceeding. The Supreme Court held:

In view of this nation's historic distrust of secret proceedings, their inherent dangers to freedom, and the universal requirement of our federal and state governments that criminal trials be public, the Fourteenth Amendment's guarantee that no one shall be deprived of his liberty without due process of law means at least that an accused cannot be thus sentenced to prison.

Id. 333 U.S. at 273, 68 S.Ct. at 507. Appellant relies on footnote 13 in In re Oliver, 333 U.S. at 266, 68 S.Ct. at 504, which suggests that the distinction between civil and criminal contempt is "not material in resolving the due process question." The Second Circuit came to the same conclusion in In re Rosahn, 671 F.2d 690 (2d Cir. 1982). We are persuaded by Judge Mansfield's testimony. He stated:

While the passages quoted from In re Oliver⁸ were written primarily with criminal trials in mind, it is significant that the contempt sentence overturned by the Oliver Court on the ground that the contempt proceeding below had been improperly closed to the public was a conditional jail sentence that would have terminated upon compliance with the trial court's order. Accordingly, the Oliver analysis was applied to invalidate a contempt sanction whose central characteristic — its conditional nature — is typical of a civil contempt. See United States v. Wendy, 575 F.2d 1025, 1029 n. 13 (2d Cir. 1978) (discussing distinction between civil and criminal contempt).

Id. at 696 (emphasis in original). Furthermore the policy considerations are the same:

Given the burden that imprisonment imposes on an individual, a civil contempt trial that could result in an order of confinement carries with it the same concerns and purposes that lead to the requirement of a public trial in the criminal context, such as the need to assure accountability in the exercise of judicial and governmental power, the preservation of the appearance of fairness, and the enhancement of the public's confidence in the judicial system.

Id., at 697. The Rosahn opinion also notes that the conclusion that civil contemnors like criminal contemnors have some right to a public proceeding is consistent with the trend in federal courts to "afford the same or similar procedural safeguards to persons charged with civil contempt as to those charged with criminal contempt." Id. at 697.

Although we conclude that a civil contemnor has a Fifth Amendment due process right to a public hearing, as appellant concedes, such a right is not absolute. She argues, however, that as in cases under the First and Sixth Amendments that guarantee open proceedings to defendants and the press in criminal cases, there is a presumption of openness which

may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984);⁹ see also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581, and n. 18, 100 S.Ct. 2814, 2829, and n. 18, 65 L.Ed.2d 973 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 608-09, 102 S.Ct. 2613, 2620-21, 73 L.Ed.2d 248 (1982) (First Amendment); Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 2216, 81 L.Ed.2d 31 (1984) (Sixth Amendment) ("the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure").

We hold, however, that the presumption of openness and the standard for closure that apply in criminal cases, where the constitutional threshold for closure is highest, do not apply to the evidentiary phase of a civil contempt hearing in a child custody and visitation rights case.¹⁰ A less stringent standard is applicable to the...