Trecost v. Trecost, 24507.

• Decision Date: 03 April 1998
• Docket Number: No. 24507.,24507.
• Citation: 202 W.Va. 129,502 S.E.2d 445
• Court: West Virginia Supreme Court
• Parties: Christie D. TRECOST, Plaintiff Below, Appellee, v. Patsy Samuel TRECOST, II, Defendant Below, Appellant.

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.

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 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. 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 a de novo standard of review.

Before addressing the specific issue raised in this case, it is helpful to review pertinent aspects of this state's law of contempt. In State ex rel. Robinson v. Michael, 166 W.Va. 660, 276 S.E.2d 812 (1981), we identified the four classifications of contempt:

In addition to the distinction between civil and criminal contempts discussed in detail in this opinion it is also possible to distinguish between direct or indirect contempt. Conduct that occurs in the actual physical presence of the court which the judge actually sees or hears in its entirety may be treated as a direct contempt. Any conduct that may constitute contempt which occurs entirely or partially outside of the actual physical presence of the court may only be treated as an indirect contempt. There are, therefore, four possible classifications of contempt: direct-criminal, indirect-criminal, direct-civil, and indirectcivil.⁸

276 S.E.2d at 820 n. 9.

This Court recently explained the distinction between criminal and civil contempt in State ex rel. Lambert v. Stephens, 200 W.Va. 802, 490 S.E.2d 891 (1997), where we reiterated the principles set forth in State ex rel. Robinson v. Michael, supra:

In Robinson, we stated that we do not look at the contemptuous conduct to determine whether the contempt should be considered criminal or civil, because either type of contempt may be justified upon the same conduct. Rather, we said the classification of the contempt and the type of sanction imposed depend upon what purpose is being served by the sanction. If the purpose of imposing the sanction is to compel the contemner to comply with a court order to benefit the party bringing the contempt action, it is civil contempt. However, if the purpose of imposing the sanction "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." Syl. Pts. 1, 2, and 4, Robinson.

We further held in Robinson that, in civil contempt cases, an appropriate sanction is an order sentencing the contemner for an indefinite period of incarceration and specifying a reasonable way the contemner may purge the contempt in order to obtain his or her immediate release. Syl. Pt. 3, Robinson. Another appropriate sanction in civil contempt cases is an order requiring the contemner to pay a fine as a form of compensation or damages to the party aggrieved by the contemptuous conduct. Id. On the other hand, an appropriate sanction for criminal contempt "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." Syl. Pt. 4, Robinson. (FN8)

490 S.E.2d at 895-96.

Specifically, with regard to the issue now before us, this Court stated in Syllabus Points 1 and 2 of State ex rel. Koppers Co. v. International Union of Oil, Chemical and Atomic Workers, 171 W.Va. 290, 298 S.E.2d 827 (1982):

1. Indirect criminal contemnors are entitled to the same rights as criminal defendants, including a right to be prosecuted by a state's attorney.

2. A party's private counsel is prohibited from replacing the prosecuting attorney whose duty it is to prosecute criminal contempt charges stemming from a civil suit; and it makes no difference whether such private lawyer is appointed special prosecutor.⁹

Koppers arose from a labor dispute in which the circuit judge issued a temporary injunction against mass picketing, traffic or business obstruction, and assaults. The appellants were among forty-nine individuals named in petitions for criminal contempt alleging violations of the injunction. The union's counsel moved unsuccessfully that the contempt cases be tried by the county prosecutor, and Koppers' lawyers asked to be appointed special prosecutors. The trial court...