Trecost v. Trecost, No. 24507.

CourtSupreme Court of West Virginia
Writing for the CourtPER CURIAM.
Citation202 W.Va. 129,502 S.E.2d 445
PartiesChristie D. TRECOST, Plaintiff Below, Appellee, v. Patsy Samuel TRECOST, II, Defendant Below, Appellant.
Decision Date03 April 1998
Docket NumberNo. 24507.

502 S.E.2d 445
202 W.Va.
129

Christie D. TRECOST, Plaintiff Below, Appellee,
v.
Patsy Samuel TRECOST, II, Defendant Below, Appellant

No. 24507.

Supreme Court of Appeals of West Virginia.

Submitted February 18, 1998.

Decided April 3, 1998.


502 S.E.2d 446
Jerald E. Jones, West & Jones, and Delby B. Pool, Clarksburg, for Appellant

Fonda L. Holehouse, Morgantown, for Appellant.

PER CURIAM.1

This appeal arises from a divorce case pending in the Circuit Court of Harrison County, West Virginia. The Appellant, Patsy Samuel Trecost, II, challenges his conviction of criminal contempt for willful violation of an order relating to conditions of visitation with the infant child of the Appellant and the Appellee, Christie D. Trecost. The Appellant raises several issues,2 the central issue being the propriety of permitting a party's private counsel in a civil proceeding to prosecute a charge of indirect criminal contempt arising from that proceeding. We conclude that the circuit court erred in permitting the Appellant to be prosecuted by the Appellee's private attorney. Accordingly, we reverse.

I.

On August 7, 1996, a family law master conducted a hearing as a part of a divorce proceeding involving the parties to this appeal. At the hearing, the family law master verbally ordered that during the periods designated for the father's visitation of the parties' infant child, the mother was to have access to the child for the purpose of breastfeeding, and she was to be allowed to perform such breast-feeding in private. Subsequent to the hearing, counsel for the Appellee

502 S.E.2d 447
prepared a written order which was signed by the family law master on August 16, 1996,3 and received by the circuit clerk's office on August 19, 1996. The written ordered stated, inter alia, that "[s]hould the plaintiff breast-feed the child at the residence of the defendant, the defendant shall allow the plaintiff to do so privately and shall in no way attempt to audiotape or videotape said breast-feeding by the plaintiff."4

On August 25, 1996, while at the Appellant's home for the purpose of breast-feeding the infant, the Appellee noticed a camera that was concealed in a heating vent. The Appellee returned to the Appellant's home to breast-feed the infant on August 26, 1996, at which time she observed the camera again and proceeded to remove it from the heating vent. Thereafter, having come to the conclusion that the Appellant had violated the family law master's decree that she be afforded privacy while breast-feeding, the Appellee filed a petition with the circuit court pursuant to W.Va.Code § 48-2-22 (1998).5 The petition alleged that the Appellant was in contempt6 for placing the camera in the heating vent.

On November 21, 1996, a hearing on the Appellee's petition was held before the circuit court. At the commencement of the hearing, the Appellee elected to proceed in criminal contempt, and the Appellant agreed to proceed without a jury. It is uncontested that the Appellee's private counsel conducted the ensuing prosecution of the Appellant without any assistance from, or participation by, the prosecuting attorney.

Prior to the taking of evidence, the circuit judge informed counsel for the parties that he had reviewed the court file with respect to previous proceedings before the family law master, including the transcript of an August 29, 1996, hearing. The circuit court instructed counsel for the parties that no re-direct or re-cross examination would be permitted. The circuit court also refused to allow closing arguments.

During the hearing, the Appellant denied that he intentionally disobeyed the family law master's order,7 apparently meaning that he had not willfully videotaped the Appellee in contravention of the family law master's decree. The Appellant also denied that the camera in question had ever been operational. The Appellant further testified that, while he was aware of the camera, he did not personally install it, and that the camera was purchased by his mother because the family suspected that the Appellee was lying about breast-feeding the parties' child. The Appellee produced no evidence that she had, in fact, been videotaped.

502 S.E.2d 448
On December 20, 1996, the circuit judge, after considering the testimony adduced at the November 21, 1996, hearing, entered an order finding the Appellant to be guilty of criminal contempt, sentencing him to six months in the Harrison County Jail, and directing that he pay the sum of $500.00 to cover attorney's fees of the Appellee. In the same order, the judge suspended the jail sentence and, instead, placed the Appellant on probation for five years. On December 2, 1996, the Appellant filed a motion for a new trial, which the circuit court denied by order entered January 23, 1997. It is from the circuit court's December 20, 1996, order that the Appellant appeals to this Court

II.

The principal issue presented by this appeal is whether a circuit court commits reversible error when it permits a private attorney representing a party in a civil proceeding to prosecute a charge of indirect criminal contempt arising from that proceeding. We resolve this issue in the affirmative for the reasons set forth below.

"Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). The issue identified above clearly presents a question of law. Thus, we apply...

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3 practice notes
  • In re Frieda Q., No. 11–1284.
    • United States
    • Supreme Court of West Virginia
    • 21 Marzo 2013
    ...as a form of compensation or damages, inasmuch as Frieda [Q.] is the party aggrieved by the contemptuous conduct. See Trecost v. Trecost, 202 W.Va. 129, 502 S.E.2d 445, 448 (1998); State of West Virginia ex rel. Robinson v. Michael, 166 W.Va. 660, 276 S.E.2d 812, 818 (1981). [742 S.E.2d 74]......
  • Boarman v. Boarman, No. 28855.
    • United States
    • Supreme Court of West Virginia
    • 21 Noviembre 2001
    ...not permitted to prosecute a charge of criminal contempt against a spouse who repeatedly violated the court's orders. Trecost v. Trecost, 202 W.Va. 129, 502 S.E.2d 445 (1998). The decision in Trecost, a per curiam decision, relied upon the Court's earlier holding in a case involving a labor......
  • State ex rel. Zirkle v. Fox, No. 25192.
    • United States
    • Supreme Court of West Virginia
    • 8 Diciembre 1998
    ...of compensation or damages to the party aggrieved by the failure of the contemner to comply with the order. See also Trecost v. Trecost, 202 W.Va. 129, 502 S.E.2d 445 (1998); State ex tel. Britton v. Workman, 176 W.Va. 586, 346 S.E.2d 562 IV. Financial Inability to Pay Regarding a contemnor......
3 cases
  • In re Frieda Q., No. 11–1284.
    • United States
    • Supreme Court of West Virginia
    • 21 Marzo 2013
    ...as a form of compensation or damages, inasmuch as Frieda [Q.] is the party aggrieved by the contemptuous conduct. See Trecost v. Trecost, 202 W.Va. 129, 502 S.E.2d 445, 448 (1998); State of West Virginia ex rel. Robinson v. Michael, 166 W.Va. 660, 276 S.E.2d 812, 818 (1981). [742 S.E.2d 74]......
  • Boarman v. Boarman, No. 28855.
    • United States
    • Supreme Court of West Virginia
    • 21 Noviembre 2001
    ...not permitted to prosecute a charge of criminal contempt against a spouse who repeatedly violated the court's orders. Trecost v. Trecost, 202 W.Va. 129, 502 S.E.2d 445 (1998). The decision in Trecost, a per curiam decision, relied upon the Court's earlier holding in a case involving a labor......
  • State ex rel. Zirkle v. Fox, No. 25192.
    • United States
    • Supreme Court of West Virginia
    • 8 Diciembre 1998
    ...of compensation or damages to the party aggrieved by the failure of the contemner to comply with the order. See also Trecost v. Trecost, 202 W.Va. 129, 502 S.E.2d 445 (1998); State ex tel. Britton v. Workman, 176 W.Va. 586, 346 S.E.2d 562 IV. Financial Inability to Pay Regarding a contemnor......

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