State v. Hurst

• Decision Date: 26 November 1991
• Docket Number: No. 910154-CA,910154-CA
• Citation: 821 P.2d 467
• Parties: STATE of Utah, Plaintiff and Appellee, v. Mary HURST, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 467

821 P.2d 467

STATE of Utah, Plaintiff and Appellee, v. Mary HURST, Defendant and Appellant.

No. 910154-CA.

Court of Appeals of Utah.

Nov. 26, 1991.

Paul D. Colton and Eric D. Pfost, Layton, for defendant and appellant.

R. Paul Van Dam and Marian Decker, Salt Lake City, for plaintiff and appellee.

Before GARFF, GREENWOOD and RUSSON, JJ.

GARFF, Judge:

Mary Hurst appeals from a criminal contempt order issued by the juvenile court for failure to appear.

FACTS

Because there are no written findings of fact, we draw the facts from the pleadings and from the transcript. Appellant Mary Hurst failed to appear as ordered for a hearing before the Second District Juvenile Court for Davis County. The hearing was scheduled for December 13, 1990 at 3:15 p.m.

Based on an affidavit, the court issued an order on December 17, 1990 requiring Hurst to appear and show cause why she should not be found in contempt for not appearing at the December 13 hearing.

Hurst appeared at the order to show cause hearing held February 14, 1991. The court informed her that she was on trial for criminal contempt and that the State had the burden to establish beyond a reasonable doubt that the allegations as to criminal contempt were true. Hurst waived her right to remain silent and stipulated that she knew of the court date and that she failed to appear. She testified that she had no driver's license, nor did she own a car. She said she arranged with a friend, who lives in Salt Lake City, to come by her home in West Bountiful to drive her to court. Her friend was to pick her up between 2:30 and 3:00 so she could be in court by 3:15 p.m. Hurst had previously relied on this friend for rides, and the friend had proved reliable. However, this time, the friend did not come by as promised, nor did she call. Shortly after 3:30 p.m., Hurst called the court to inform them that she was not able to come. However, the hearing had already transpired.

Hurst testified that she has two children, ages two and three, and does not own a stroller. She testified that the bus stop is located over seven blocks from her home in West Bountiful and that there are "hardly any sidewalks" along the road to the bus stop. She also testified that she did not know whether cab service was available in Bountiful. She stated she could rely on no other friends and associates to drive her to court because they all work during the day. Finally, she testified she borrowed a car in order to appear at the contempt hearing.

The court then orally made the following findings:

The Court finds beyond a reasonable doubt that she knew what was required of her, that was by stipulation, that she knew of the Court hearing, that she was required to attend the Court hearing by order of the Court. That she had the ability to attend the Court hearing; may have been with some inconvenience to--but there was public transportation available to her. The Court does not find that seven-block walk to nearest bus stop was oppressive or unreasonable, that if she had made sufficient arrangements to rely upon that, she in fact could have and could have come to Court, she had attended Court hearings in the past and was not unable to attend, and that by her own action of relying upon another individual, she intentionally failed to comply with that Court order. That she should have been at the Court hearing and that it was her own actions that prevented her from appearing.

Therefore, I find her in contempt of Court.... For the contempt, I'm going to order a $50 fine and suspend it on the condition that she come to Court in the future to attend with her child or children, if properly summoned before the The court prepared a document entitled "Minutes, Findings and Order." The "Minutes" section detailed that the parties stipulated to the court "that the defendant knew of the court date and she did not appear." It then listed those who argued and testified. The "Findings and Conclusions" section read as follows:

Court, and that will be the sanction of the Court.... There were some impediments and difficulties that you have, but the Court does not find them sufficient to overcome the ability that you clearly had to come to Court and will not find that problem involving your friend to be sufficient to relieve you of that ability and that you intentionally failed to appear as was previously ordered.

The court, after hearing the evidence adduced at trial regarding the allegation contained in the Affidavit and Order to Show Cause dated December 13, 1990, for the charge of CONTEMPT OF COURT finds the Affidavit and Order to Show Cause to be true beyond reasonable doubt. Mary Hurst is found in contempt of court and come[s] within the provisions of the Juvenile Court Act.

Hurst appeals the order of contempt arguing that the court clearly erred in (1) failing to make written findings of fact and conclusions of law; and (2) finding she had no reasonable cause to fail to appear at her court hearing.

ADEQUACY OF FINDINGS

We first consider the threshold issue of whether the lack of written findings prohibits us from considering the merits of the case.

Utah Code Ann. § 78-32-3 (1987) emphasizes that an order for contempt in the presence of the court must recite "the facts as occurring," but does not specify that the order or the facts be in writing. Nor does the current version of Rule 52(a) of the Utah Rules of Civil Procedure require the findings to be in writing. Rule 52(a) states:

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon,.... It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court.

The last sentence was added by amendment in 1986, effective January 1, 1987. This sentence is identical to the language added in 1983 to Rule 52(a) of the Federal Rules of Civil Procedure. In making the 1983 amendment, the advisory committee noted

Rule 52(a) has been amended to ... provide explicitly that the district judge may make the findings of fact and conclusions of law required in nonjury cases orally.... The objective is to lighten the burden on the trial court in preparing findings in non-jury cases.

Fed.R.Civ.P. 52(a) advisory committee's note.

Clearly, in cases involving orders issued prior to this amendment, the Utah Supreme Court has consistently held that written findings are required. ¹ The issue then becomes whether written findings and conclusions are still required in contempt matters Hurst cites to Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988) and Race v. Race, 740 P.2d 253, 259 (Utah 1987) (Durham J., concurring and dissenting), arguing that these two cases issued after the amendment of Rule 52(a) continue the requirement for written findings. We read these cases differently.

under Rule 52(a) as amended permitting oral findings.

In Von Hake the defendant was charged with two counts of contempt: failure to appear as ordered and failure to produce tax returns as ordered. The supreme court held that the trial court made adequate written findings on the three elements of contempt for failure to appear. ² However, on the second contempt charge, there were no findings, written or oral, regarding the disputed issue of whether defendant was able to produce the tax returns. 759 P.2d at 1173. The court reversed because the lack of findings "prevents our effective review of the question." Id.

We note two points in determining that Von Hake does not require written findings for orders of contempt. First and foremost, the disputed contempt order was entered prior to the amendment of Rule 52(a), which now permits oral findings. Second, Von Hake emphasizes the need for explicit findings, whether written or transcribed, on the three elements of contempt.

Our interpretation harmonizes with Utah Code Ann. § 78-32-3, which requires the court to make an order reciting the facts that show contempt. Again, the statute does not state that the order must be in writing. Rather, it emphasizes that the order must be explicit.

Hurst also argues that Justice Durham, in her dissent in Race, 740 P.2d at 259, argues that there must be written findings supporting contempt actions. In Race, a divorcing wife was found in contempt and sentenced to serve ten days in the county jail because of her refusal to allow her exhusband to visit their child.

While the majority affirmed the contempt order, Justice Durham dissented. In her dissent, she emphasized that the version of Rule 52(a) in effect at the time required written findings of fact and conclusions of law. She also noted that Utah Code Ann. § 78-32-3 (1977) required the findings and order to be explicit. She reasoned that

[a] primary purpose of written findings of fact is to preserve for the record the reasons for the trial court's judgment. Without such written findings, nothing exists to show on what evidence the court relied, and review of whether there was clear and convincing evidence of contempt becomes impossible.

740 P.2d at 259.

Justice Durham's reasoning in Race is in line with the revised Rule 52(a) because both emphasize the need for the record to reflect the reasons for the trial court's judgment. Thus, the emphasis is on the explicitness of the findings rather than on whether they are written rather than transcribed.

Under the federal rule, other courts have avoided remanding orders of contempt even where findings were not made but where the record reveals the facts constituting contempt. See e.g., Weiss v. Burr, 484 F.2d 973, 983 (9th Cir.) ("the existence of the requisite [attorney] misconduct can be gleaned from the reporter's transcript") cert. denied, 414 U.S. 1161, 94 S.Ct. 924, 39 L.Ed.2d 115 (1973); United States v. Schiffer, 351 F.2d 91, 94 (6th Cir.1965)...