Pechnick, In re, 17011
| Decision Date | 31 August 1953 |
| Docket Number | No. 17011,17011 |
| Parties | . Supreme Court of Colorado, en Banc |
| Court | Colorado Supreme Court |
Adams, Heckman & Traylor, Gerald J. Ashby, Grand Junction, for plaintiff in error.
George J. Petre, Robert S. Zimmerman, Glenwood Springs, for defendant in error.
An unusual contempt proceeding is before us for review. The record as presented reveals a situation pregnant with emotions and supposed authority taken too seriously, as well as the questionable position of the prosecutor of the complaint. By the record as made, it is definitely a charge of criminal contempt out of the actual presence of the court in session. The order for the citation and the judgment upon the hearing supports this distinction as against that of civil contempt.
The attorney who filed the motion for citation supported by his affidavit ran the entire gamut of positions as counsel in the matters culminating in this proceeding. First as private attorney for one of the parents of the children involved, then as county attorney for Garfield county, he appears as counsel for the court and as prosecuting attorney, then as principal witness for the trial court, and he cross-examined his own witness with a threat of impeachment as to one witness. This seemed to meet the approval of the trial court, which apparently took its position too seriously, and used its power unsparingly to punish, 'in order to vindicate the dignity of this court,' as stated in the order of the citation, when there was no imminent threat to the administration of justice.
In April of 1947 on proceedings had, a former judge of the county court of Garfield county adjudged Anita Louise Pechnick and Carol Pechnick, children of the county, to be dependent and neglected children and directed that the custody thereof remain in the mother under certain conditions. One of the children, Carol Pechnick, is the daughter of Carl Pechnick and the other child, Anita Louise, is not the child of Carl Pechnick. A final decree of divorce between the Pechnicks was entered September 10, 1947 in Mesa county, by which the court awarded the custody of both children to the mother, who in 1948, remarried and established a residence in Mesa county. The children were generally under the child welfare department of Mesa county of which the respondent, plaintiff in error, was director. The children were attending school in one of the districts of Mesa county.
About four years later in January of 1952, the county court of Garfield county--the court involved in this contempt proceeding--entered an ex parte order granting temporary custody of Carol to her father, and temporary custody of Anita to her aunt, Louise Simonson. In possession of this order, the attorney, who later became the petitioner herein, took a copy of this ex parte order and accompanied Mr. Pechnick and Mrs. Simonson to Grand Junction where they called at the school to get the children. It is alleged that the school authorities refused to let them see or have the children, under some direction from the child welfare department of Mesa county, unless the parties desiring to see or have the children, presented a valid order from the Mesa county court.
On February 8, 1952, the attorney thus involved caused the citation for contempt herein to issue from the county court of Garfield county against the respondent Wallace, alleging that he had impeded the due administration of law and interfered with the process of the court in that he had counseled the school authorities to disobey any order; that he had advised the petitioner that the county court of Garfield county had no jurisdiction or authority to enter an order concerning custody of the minor children; that the county judge of Garfield county had neither the authority nor wisdom to enter such an order; and that he would not obey such order. On February 11, 1952, respondent Wallace petitioned the county court of Mesa county to have the children declared dependent and neglected and their custody remanded to the Mesa county department of public welfare. A second citation against respondent was issued February 23, 1952 upon recital in the affidavit supporting the same that respondent had brought the above mentioned dependency proceedings in Mesa county.
Answer was filed by respondent to the first citation, but none to the second. At a pretrial conference in the county court of Garfield county on June 25, 1952, portions of respondent's answer to the first citation were stricken. This action of the court was clearly erroneous, as we will later discuss. Trial was had to the court, which made its findings that respondent was guilty of contempt under both citations and was fined $250 under the first and $500 under the second citation, together with the costs of the proceedings and an additional sum of $150 was assessed against respondent for attorney's fee for filing and prosecuting the action. To the judgment entered on these findings, error is assigned.
Narrowed to the material circumstances of the case, we find from the record that the ex parte order which counsel obtained for the custody of the children in the Garfield county court, and which he had in his posession when he accompanied the father and an aunt to the Mesa county schools for the children, was not displayed to anyone then or after, much less to the respondent who was nowhere near. It also appears that respondent, being charged with responsibility concerning the welfare of the children, after four years and more of inaction on the part of the Garfield county court or its authorities, did telephone the county judge of Garfield county, the court now involved, and indulged in some criticism of the court and its actions concerning the children and possibly displayed a failing temper under the conditions. That counsel, either as private counsel, county attorney, or district attorney, not being successful in his efforts to obtain possession or custody of the children under the ex parte order, apparently, in some spirit of vindictiveness, filed his motion for citation, supporting it by his affidavit based entirely...
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