Young v. Young

• Decision Date: 28 March 1994
• Docket Number: No. 93-949,93-949
• Citation: 872 S.W.2d 856,316 Ark. 456
• Parties: Constance Bolin YOUNG, Appellant, v. William Kelly YOUNG, Appellee.
• Court: Arkansas Supreme Court

Page 856

872 S.W.2d 856

316 Ark. 456

Constance Bolin YOUNG, Appellant, v. William Kelly YOUNG, Appellee.

No. 93-949.

Supreme Court of Arkansas.

March 28, 1994.

E. Lamar Pettus, Fayetteville, for appellant.

Lewis D. Jones, J. Scott Hardin, Fayetteville, for appellee.

HAYS, Justice.

This is a contempt proceeding involving a property settlement in divorce. In a hearing requested by William Young (appellee) to locate some of the marital property, Constance Young (appellant) refused to answer questions on the basis of her Fifth Amendment rights. The trial court found no legitimate Fifth Amendment privilege and that any privilege she might have had was waived. Mrs. Young still refused to answer and was found in contempt. She brings this appeal from the order requiring her to answer and from the order of contempt. We affirm the trial court.

The Youngs were divorced in 1986 in Dallas County, Texas. The property settlement agreement left the bulk of the household effects to be divided later and provided for the appointment of a receiver in the event no agreement was reached. Mrs. Young was awarded the residence for three years, at which time it was to be sold. Mr. Young was to lend Mrs. Young $10,000 a month for those three years, to be repaid when the house was sold.

In May 1988, a receiver was appointed to inventory the furniture. It was valued at $1,869,305.00 and in 1989 the court divided the furniture, one-half to each party. The residence did not sell, and in October of 1991 the court appointed a receiver to sell the property.

Early in 1992, Mr. Young sought a preliminary injunction against Mrs. Young alleging she had forcibly removed various fixtures from the house, i.e., mantels, paneling, fountains, etc., to block a sale by discouraging prospective buyers. Mr. Young requested sanctions against further destruction of the home or removal of its fixtures. In February 1992, a Texas district court awarded Mr. Young $3,247,171.97 against Mrs. Young for breach of contract, emotional distress, and exemplary damages. This judgment was reduced by $1,800,000 when Mr. Young purchased the marital home.

Mr. Young then filed the judgment in the circuit court of Washington County, Arkansas. Subsequently, approximately five self-storage units of furniture and fixtures from the home were discovered in Springdale, Arkansas. A judicial sale of that property was held which reduced the judgment by another $1,000,000.00.

In May of 1993 Mrs. Young was tried and convicted of the offense of mail fraud in connection with a plot to bomb the marital home. She was sentenced to twenty-four months in prison. Mr. Young continued efforts to discover the remaining fixtures and furniture. He requested a hearing and Mrs. Young appeared for oral deposition on March 25, 1993, but refused to answer questions as to the whereabouts of the property on the basis of self-incrimination. On May 7, 1993, the trial court found Mrs. Young had no legitimate Fifth Amendment privilege and issued an order compelling discovery and requiring Mrs. Young to answer all questions concerning the whereabouts of the property. The May 7th order did not specify a date for the discovery as ordered, so on May 13, a judge sitting in exchange modified the May 7th order by ordering Mrs. Young to appear on May 15.

Mrs. Young again refused to answer specific questions on the basis of self-incrimination. On May 17 Mr. Young filed a petition for contempt and after a hearing the trial court entered an order on May 27 finding there was no Fifth Amendment privilege, and alternatively, a waiver of the privilege. Mrs. Young was found in contempt of the May 7, 1993, order and the trial court directed the sheriff to arrest and incarcerate her. She appeals from the orders of May 7 and May 13 and from the finding of contempt.

Initially we note that an order of contempt is a final, appealable order. Frolic Footwear v. State, 284 Ark. 487, 683 S.W.2d 611 (1985); Taylor v. Taylor, 26 Ark.App. 31, 759 S.W.2d 222 (1988). Moreover, the appeal brings up, in addition to the contempt order, the two earlier orders on which the contempt order was based and which Mrs. Young also challenges. ARAP Rule 2(b).

I

Mrs. Young contends she had a right to assert her privilege not to incriminate herself under the Fifth and Fourteenth Amendments to the United States Constitution and art. 2, § 8 of the Arkansas Constitution. The trial court rejected that contention and, in the alternative, found that the privilege was waived. We sustain the trial court on the ground of waiver.

Mrs. Young cites only Dunkin v. Citizens Bank of Jonesboro, 291 Ark. 588, 727 S.W.2d 138 (1987), pertinent to this issue. In that case Mrs. Dunkin, defending a wrongful death claim arising from the homicide of her estranged husband, refused to answer interrogatories propounded to her on the grounds that her answers might tend to incriminate her. The trial court ordered her to respond and, when she still refused, struck her answer asserting self-defense.

We affirmed the order, noting that ARCP Rule 37(d) provides that the failure to serve answers or objections to interrogatories "may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided in Rule 26(c)." (Emphasis in original text.) Since Mrs. Dunkin had not asserted the privilege in a timely and proper manner, it was rejected. As to the substantive issue, the opinion said, "The privilege applies alike to civil and criminal proceedings whenever the answers might tend to subject the party giving it to criminal responsibility." Camelot Group Ltd. v. W.A. Krueger Co., 486 F.Supp. 1221 (S.D.N.Y.1980).

Relying on this general statement from Dunkin the trial court in this case concluded there was little chance that appellant would be subjected to criminal prosecution. The Dunkin case however did not reach the necessity of showing the incriminating nature of each question asked, nor was the case decided on that basis.

We have found no other cases of our own on the question of proving the claim of a Fifth Amendment privilege, so we have turned elsewhere for guidance.

In a leading case in this area, In re Folding Carton Anti-Trust Litigation, 609 F.2d 867 (7th Cir.1979), the court said:

We cannot agree that a witness' constitutional privilege against self-incrimination depends upon a judge's prediction of the likelihood of prosecution. Rather, we conclude that it is only when there is but a fanciful possibility of prosecution that a claim of fifth amendment privilege is not well taken....

When a witness can demonstrate any possibility of prosecution which is more than fanciful he has demonstrated a reasonable fear of prosecution.

In Choi v. State, 316 Md. 529, 560 A.2d 1108 (1989), the state had relied on the prosecuting attorney's representation in the trial court that the witness "was not at risk of prosecution." To that the court stated:

The rarity of prosecutions under a particular statute, or a prosecuting attorney's indication in a particular case that he will not prosecute, are not sufficient to defeat a claim of privilege under the standards of Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951) and other cases.

See also United States v. Miranti, 253 F.2d 135 (2d Cir.1958); In re Grand Jury Proceedings (Samuelson) 763 F.2d 321 (8th Cir.1985).

Here, evidence that Mrs. Young had removed fixtures from the marital home would have subjected her at least to the possibility of felony criminal penalties in Texas for tampering with and damaging the property of another, notwithstanding the fact that she had an interest in the property. Texas Cr.Code, § 28.03, § 28.05. The probability of such prosecution is not controlling, nor are assurances by Mr. Young and the receiver that they will not promote prosecution.

As to the questions Mrs. Young refused to answer, we believe they sought to elicit information that can be withheld under a Fifth Amendment claim. Mrs. Young was withholding answers to the whereabouts of the furniture and fixtures and to any dealings she might have had in transporting that property. A witness is not required to show the testimony she declines to give will result in direct criminal exposure, it is enough if the information, used with other evidence, would lead to a conviction. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). It is stated in United States v. Johnson, 488 F.2d 1206 (1st Cir.1973), quoting from Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951):

The privilege protects not only answers which directly reveal criminal activity, but also those that might furnish a link in the chain of evidence necessary to convict.

In sum, we believe the nature of this testimony and the possibility of prosecution are sufficient to create a valid Fifth Amendment privilege.

II

The trial court held that even if Mrs. Young did have a Fifth Amendment claim, it was waived. This conclusion was based on two things, first a letter from her lawyer to Mr. Young's lawyer offering to sell the items "which she removed from the home in Fort Worth." Second, the trial court found Mrs. Young had waived her privilege through two affidavits she filed with the court with "respect to facts concerning the property involved in this case."

As to the letter, it will not qualify as a waiver of her privilege as it was not compelled testimony. It is clear from the case law that a waiver can only occur where compelled testimony is involved. Where a disclosure of facts may tend to...