Opinion
Record Nos. 2454-93-4 and 0027-94-4
Decided: April 25, 1995
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY, Benjamin N.A. Kendrick, Judge Designate
Jeffrey W. Parker (Niles, Dulaney, Parker Lauer, on brief), for appellant.
Stephen C. Price (John P. McGeehan; John P. McGeehan Associates, P.C., on brief), for appellee.
Present: Judges Barrow, Koontz and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
These appeals arise from a contempt judgment and corresponding jail term entered by the Circuit Court of Fauquier County against Glenn R. Miller (Miller), appellant, at the request of Margaret R. Miller (Mrs. Miller), appellee. For the reasons that follow, we vacate the sentence imposed by the circuit court and remand.
The parties, stepmother and stepson, are involved in a protracted legal dispute over a tract of land known as "Busthead." On November 6, 1992, the Circuit Court of Fauquier County determined that Miller had unreasonably refused to accept and abide by a prior order of the court dismissing, as res judicata, a suit filed by him against Mrs. Miller. For that disobedience, the court, pursuant to Code Sec. 8.01-271.1, assessed a sanction of $6,100 against Miller in favor of his stepmother and enjoined him "from filing or assisting Jean Deal in filing of any claim, suit or cause of action claiming title to, an interest in or the right to use or occupy the property known as 'Busthead' . . . ." Deal is Miller's companion. At the time of the proceeding relevant to this appeal, Deal was occupying a house on Busthead.
Mrs. Miller subsequently instituted a suit against Deal for unlawful detainer. Deal defended the suit on the ground that she was on Busthead by permission of Miller and that she believed he had a lawful interest in the property. When Miller sought to be joined as a defendant in this suit, Mrs. Miller petitioned the trial court for a rule to show cause alleging that Miller was in violation of the injunction. She further asserted that Miller had not paid the ordered sanction.
A hearing on the show cause order was held October 15, 1993. Mr. Miller appeared pro se. He argued that his petition to be joined as a defendant in the unlawful detainer action was not a "claim, suit or cause of action claiming title to, an interest in or the right to use or occupy" Busthead. He further asserted that under the terms of the order the monetary sanction was not payable unless he violated the injunction.
The trial judge found that Miller had intentionally violated both terms of the court's prior order. For this contempt, the trial judge sentenced Miller to five months and twenty-nine days in jail, providing that he could purge the contempt and be released from jail "by paying the sanctions . . . and stopping assisting Jean Deal in her claims of an interest in 'Busthead'." In a subsequent hearing on a motion for bond pending appeal, the trial judge set as a condition of bond that Miller pay over the full amount of the sanction to the court and upon resolution of the appeal that this money would be paid to Mrs. Miller.
Miller asserts five errors in the actions taken by the trial judge. The central issue of this appeal, and the only issue we need address, is whether the nature of the contempt was civil or criminal.
We begin by noting that the original order of the trial court imposing the monetary sanction and injunction is res judicata and not subject to collateral attack in this appeal. Accordingly, we reject Miller's assertion that the original order was violative of his and Deal's due process rights and, thus, was not subject to enforcement by contempt proceedings.
We also reject Miller's assertion that his actions were not violative of that order. His construction of the order limiting the application of its injunction to offensive pleadings and requiring him to pay the monetary sanction only if he chose to disobey the injunction is, at best, disingenuous. Rather, the sanction was intended as compensation to Mrs. Miller for her reasonable expenses incurred because of Miller's abuse of process. Thus, it was payable at the time of the order. Similarly, the injunction clearly prohibits Miller from asserting or assisting Deal in asserting any claim against Busthead, which would include defending an unlawful detainer on the ground of such a claim. Accordingly, we find no fault with the trial judge's determination that Miller was in contempt of the original order.
We now consider whether the penalty of a jail term the trial judge imposed for this contempt was arrived at through proper procedure. Whether due process requires a full criminal hearing depends on the nature of the penalty. "It is not the 'fact of punishment but rather its character and purpose' that distinguishes civil and criminal contempt." Small v. Commonwealth, 12 Va. App. 314, 317, 398 S.E.2d 98, 100 (1990) (quoting Gompers v. Bucks Stove Range Co., 221 U.S. 418, 441 (1911)), aff'd, 402 S.E.2d 927 (1991) (en banc). "The primary purpose of a civil contempt proceeding 'is to procure the imposition of a punishment which will afford remedial relief to the parties injured by the violation.' " Rainey v. City of Norfolk, 14 Va. App. 968, 971, 421 S.E.2d 210, 212 (1992) (citation omitted). "If the relief provided is a sentence of imprisonment, it is remedial if 'the defendant stands committed unless and until he performs the affirmative act required by the court's order,' and is punitive if 'the sentence is limited to imprisonment for a definite period.' " Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 632 (1988) (quoting Gompers, 221 U.S. at 442).
In Hicks, the Court held that conclusions about the civil or criminal nature of a contempt sanction are properly drawn, not from "the subjective intent of a State's laws and its courts," Hicks, 485 U.S. at 635, but "from an examination of the character of the relief itself." Id. at 636. With respect to payment of the monetary sanction, Miller had the power to purge his contempt. Although he now alleges an inability to pay, no evidence of his financial condition was presented at the show cause hearing, and it was his burden to establish that he could not comply with the order. Frazier v. Commonwealth, 3 Va. App. 84, 87, 348 S.E.2d 405, 407-08 (1986). Accordingly, had purgation of the contempt been limited to payment of the monetary sanction alone, the penalty would have been civil in nature.
We now consider whether the trial judge's further requirement that Miller conform to the injunction in order to purge his contempt altered the nature of the punishment from civil to criminal. See Hicks, 485 U.S. at 639 n. 10. The United States Supreme Court has recently clarified the distinction between civil and criminal penalties for contempt when dealing with disobedience of an injunction. See International Union, United Mine Workers of America v. Bagwell, ___ U.S. ___, 114 S.Ct. 2552 (1994). The Court found that "the distinction between coercion of affirmative acts and punishment of prohibited conduct is difficult to apply when conduct that can recur is involved, or when an injunction contains both mandatory and prohibitory provisions." Id. at ___, 114 S.Ct. at 2561.
In Bagwell, the Court addressed the imposition of immense fines for the commission of prohibited acts. Here, we deal with the more serious penalty of deprivation of personal liberty by imprisonment. Although the trial judge drafted his order to permit Miller to purge his contempt through future compliance with the injunction, the manner in which he might do this was not specified. Accordingly, it became the sole province of the trial judge to determine whether Miller had redeemed himself sufficiently to purge the contempt. Clearly, Miller was not given the opportunity to "[carry] the keys of his prison in his own pocket," Gompers, 221 U.S. at 442, under these circumstances.
Under the circumstances presented by this case, we hold that the imposition of a jail term for an indirect contempt which could only be purged by petition to and through the acquiescence of the court which imposed the penalty rendered that penalty criminal in nature. As such, the contemnor was entitled to the protection of criminal procedure including a hearing before a neutral trier of fact. Bagwell, ___ U.S. at ___, 114 S.Ct. at 2563.
Accordingly, we vacate the penalty for contempt imposed by the trial judge and remand for further proceedings consistent with this opinion. The trial judge may, in his discretion, conduct a new hearing and impose, if appropriate, a civil penalty, or refer the matter to the Commonwealth's Attorney of Fauquier County for prosecution as a criminal contempt. Assuming, without deciding, that the conditions of the supersedeas bond were within the discretion of the court, Robinson v. Commonwealth, 190 Va. 134, 144, 56 S.E.2d 367, 372 (1949), we further hold that vacation of the sentence imposed renders the need for supersedeas inoperative. Accordingly, the conditions of the bond are also vacated.
We stress that the original order requiring payment of the sanction and enjoining Miller from taking any legal action concerning Busthead remains in force.
Vacated and remanded.