State ex rel. Robinson v. Michael, No. 15084

• Court: Supreme Court of West Virginia
• Writing for the Court: McHUGH
• Citation: 276 S.E.2d 812,166 W.Va. 660
• Parties: STATE of West Virginia, ex rel. Carolyn ROBINSON v. Nelson M. MICHAEL, Esquire, Prosecuting Attorney in and for Mineral County,West Virginia, succeeded by Daniel C. Staggers.
• Decision Date: 03 April 1981
• Docket Number: No. 15084

Page 812

276 S.E.2d 812 166 W.Va. 660 STATE of West Virginia, ex rel. Carolyn ROBINSON
v.
Nelson M. MICHAEL, Esquire, Prosecuting Attorney in and for
Mineral County,West Virginia, succeeded by Daniel
C. Staggers. No. 15084. Supreme Court of Appeals of West Virginia. April 3, 1981.

Page 813

[166 W.Va. 661] R. Pierce Kelley, Jr., Romney, for relator.

Chauncey H. Browning, Jr., Atty. Gen., and Silas B. Taylor, Asst. Atty. Gen., Charleston, for respondent.

W. Va. Prosecuting Attorneys Association by Leo Catsonis, Charleston, amicus curiae.

Syllabus by the Court

[166 W.Va. 660] 1. Whether a contempt is classified as civil or criminal does not depend upon the act constituting such contempt because such act may provide the basis for either a civil or criminal contempt action. Instead, whether a contempt is civil or criminal depends upon the purpose to be served by imposing a sanction for the contempt and such purpose also determines the type of sanction which is appropriate.

2. Where the purpose to be served by imposing a sanction for contempt is to compel compliance with a court order by the contemner so as to benefit the party bringing the contempt action by enforcing, protecting, or assuring the right of that party under the order, the contempt is civil.

3. The appropriate sanction in a civil contempt case is an order that incarcerates a contemner for an indefinite term and that also specifies a reasonable manner in which the contempt may be purged thereby securing the immediate release of the contemner, [166 W.Va. 661] or an order requiring the payment of a fine in the nature of compensation or damages to the party aggrieved by the failure of the contemner to comply with the order.

4. Where the purpose to be served by imposing a sanction for contempt is to punish the contemner for an affront to the dignity or authority of the court, or to preserve or restore order in the court or respect for the court, the contempt is criminal.

5. The appropriate sanction in a criminal contempt case is an order sentencing the contemner to a definite term of imprisonment or an order requiring the contemner to pay a fine in a determined amount.

6. Absent legislation otherwise, the public interest in the enforcement of a noncustodial parent's obligation of support does not create a positive duty on the part of a prosecuting attorney to prosecute a civil contempt action which arises from a failure to comply with a divorce decree which orders support payments.

7. A writ of mandamus will not lie to compel the prosecuting attorney to represent a party in a civil contempt action

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arising out of the failure by a party to comply with a divorce decree which orders support payments.

McHUGH, Justice:

This is an original proceeding in mandamus wherein the petitioner, Carolyn Robinson, seeks to compel the respondent,[166 W.Va. 662] the Prosecuting Attorney of Mineral County, Daniel C. Staggers, who succeeded Nelson M. Michael, to represent her in a contempt proceeding. By an order of the Circuit Court of Mineral County, dated September 9, 1975, Marlin Dennis Robinson, the former husband of the petitioner, was required to pay $100.00 per month for the support of their two children and $50.00 per month as alimony. The petitioner, on March 27, 1980, sought to have Marlin Dennis Robinson held in contempt of court for his failure to comply with the order of September 9, 1975. The petitioner argues that the respondent should act as her attorney in the contempt proceedings in Mineral County. The respondent asserts that the contempt proceeding is civil in nature and, therefore, he is not required to act as counsel for the petitioner; or, in the alternative, if the contempt is criminal, it is a matter within his discretion as to whether he should act in the case.

A review of the distinction between civil and criminal contempt is necessary to the decision in this case. The law of contempt is frequently a source of confusion. The usual confusion associated with this area of law arises in classifying the contempt as civil or criminal and in distinguishing the purpose to be served by imposing a sanction for the contempt. The history of contempt in West Virginia reflects that confusion.

In State ex rel. Mason v. Harper's Ferry Bridge Co., 16 W.Va. 864 (1879), this Court recognized that contempt can serve a dual purpose: either to force compliance with a court order or to punish disrespect of the court. ¹ This Court combined those purposes in Mason. In that case the contempt action was instituted after the defendants had violated an injunction against building a bridge across the [166 W.Va. 663] Shenandoah River. This Court fined the defendants but also ordered their incarceration until such time as they paid the fine. A similar order was used in State v. Frew & Hart, 24 W.Va. 416 (1884). Thus, the combination of purposes, coercion and punishment, that frequently creates the confusion associated with contempt entered our law at a very early date.

That confusion was further exacerbated in subsequent cases. In Ruhl v. Ruhl, 24 W.Va. 279 (1884), the alleged contemner refused to comply with an order of a municipal court to satisfy a judgment. The municipal court ordered the defendant attached and held until "further order of this court." The case was appealed and the issue on appeal was whether such an order in chancery could be reviewed on appeal or only on a writ of error. ² This Court said: "A contempt of court is in the nature of a criminal offence, and the proceeding for its punishment, is in its character a criminal proceeding .... A court cannot prevent the reversal of an erroneous order by entering it in the wrong order book." 24 W.Va. at 283. This Court noted that the order was "also erroneous because it failed to define the term of the imprisonment .... Even if it had been proper to commit the appellant, the order should have shown a conviction for the offence and the term of

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his imprisonment should have been defined." 24 W.Va. at 286.

Three years later this Court had occasion to further limit civil contempt. The case of State v. Irwin, 30 W.Va. 404, 4 S.E. 413 (1887), involved a contract to sell land. The alleged contemner refused to transfer the land and the prospective purchaser sought an injunction to prohibit the transfer or [166 W.Va. 664] encumbrance of the land in violation of the contract. Before bond was posted on the injunction, the alleged contemner conveyed a portion of the land to a third party. An order to show cause was issued on the chancery side of the court, returnable to it. The circuit court, acting in its equity jurisdiction, found the seller to be in contempt and ordered his confinement until such time as he purged himself by specific performance of the contract. The seller appealed. This Court recognized the existence and validity of the distinction between civil and criminal contempt. ³ The role of civil contempt, however, was severely restricted on the basis of two procedural considerations. The first was the question of appeal previously addressed in Ruhl, supra. The second was the interpretation of the contempt statute [166 W.Va. 665] then in effect. ⁴ As a result of these considerations this Court held that all contempt cases must be treated on the law side of the court after the return of the order. ⁵ This Court

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carefully chose its language in an attempt to preserve civil contempt while dealing with the procedural questions that would allow appeal of contempt orders. ⁶ The [166 W.Va. 666] effect of the case, however, was to end civil contempt for a period of time in this State. Cases arising between 1884 and 1918 generally ignored the preservative language of Irwin and concentrated on that language which held all contempts to be criminal. ⁷

The erroneous holding and subsequent misinterpretation of Ruhl and Irwin began to erode in Petrie v. Buffington, 79 W.Va. 113, 90 S.E. 557 (1916). In that case the alleged contemner refused to obey an order to turn over property to a court appointed receiver and was committed to jail until such time as she would obey the order. She then sought a writ of habeas corpus in this Court. The writ was denied and this Court approved the use of an indeterminate sentence in the case: "The petitioner may be restored to her liberty at any time by obeying the laws of that state to whose courts she appeals. This court can not justify her in refusing to obey the laws which it is our duty to enforce." 79 W.Va. at 121, 90 S.E. 557. The Petrie court again disapproved the language in Ruhl, supra, which required a determinate sentence in all contempt cases.

Ex parte Beavers, 80 W.Va. 34, 91 S.E. 1076 (1917), was also a habeas corpus proceeding. In that case the petitioner had been imprisoned for an indeterminate term for failure to pay alimony as required by a divorce decree. The [166 W.Va. 667] proceeding in Beavers was not authorized by statute at that time. The Court held that the order of commitment was remedial and dismissed the writ. The entire proceeding had been on the chancery side of the circuit court and the dismissal of the writ, in effect, sustained chancery jurisdiction to employ the contempt sanction.

The confusion illustrated by this line of cases, and the conflicts among the cases, was addressed directly in Smith v. Smith, 81 W.Va. 761, 95 S.E. 199, 8 A.L.R. 1149 (1918). The factual situation was essentially the same as was found in Beavers, supra. This Court noted that prior decisions uniformly agreed that every contempt proceeding is criminal in nature, but also observed that, in each of those cases, "the alleged contempt consisted of the doing of a forbidden act and the object of the proceeding was punishment." 81 W.Va. at 768, 95 S.E. 199. This Court found the holding in Irwin to be erroneous and the source of a "highly confused, illogical and unnecessarily cumbersome procedure." 81 W.Va. 769, 95 S.E. 199. This Court then...