In re Spencer


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Docket Number: 2006-CA-00735-SCT
Linked Case(s): 2006-CA-00735-SCT ; 2006-CA-00735

Supreme Court: Opinion Link
Opinion Date: 06-19-2008
Opinion Author: WALLER, P.J.
Holding: The motion for rehearing is denied. The original opinion is withdrawn and this opinion substituted therefor. Affirmed in Part; Reversed and Rendered in Part; Reversed and Remanded in Part; and Vacated and Remanded in Part.

Additional Case Information: Topic: Contempt - Sanctions - M.R.C.P. 11 - Litigation Accountability Act - Due process - Violation of gag orders - Subpoenas - Personal involvement of judge
Judge(s) Concurring: SMITH, C.J., CARLSON, GRAVES, DICKINSON AND LAMAR, JJ.
Non Participating Judge(s): DIAZ, P.J., AND RANDOLPH, J.
Concur in Part, Dissent in Part 1: EASLEY, J. without separate written opinion.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS; Motion for Rehearing

Trial Court: Date of Trial Judgment: 04-18-2006
Appealed from: Clarke County Circuit Court
Judge: Sarah P. Springer
Disposition: A grandmother and a mother retained attorney Karen Spencer to represent them in a child-custody matter before the Chancery Court of Clarke County, Mississippi.During the course of this representation, the chancellor, on motion by the guardian ad litem and counsel for the father, found Spencer to be in contempt of court. The chancellor ordered Spencer to pay fines and to be incarcerated as sentence for the contempt. The chancellor, also on motion by the father and the guardian ad litem, imposed monetary sanctions against Spencer under the Litigation Accountability Act of 1988 and Rule 11 of the Mississippi Rules of Civil Procedure. On reconsideration, the chancellor rescinded the portions of her contempt order which sentenced Spencer to incarceration.
Case Number: 000038-S

  Party Name: Attorney Name:  
Appellant: IN RE: KAREN H. SPENCER




JULIE ANN EPPS



 

Appellee: Unknown J. STEWART PARRISH  

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Topic: Contempt - Sanctions - M.R.C.P. 11 - Litigation Accountability Act - Due process - Violation of gag orders - Subpoenas - Personal involvement of judge

Summary of the Facts: The motion for rehearing is denied, and this opinion is substituted for the original opinion. A grandmother and a mother retained attorney Karen Spencer to represent them in a child-custody matter. The chancellor, on motion by the guardian ad litem and counsel for the father, found Spencer to be in contempt of court. The chancellor ordered Spencer to pay fines and to be incarcerated as sentence for the contempt. The chancellor, also on motion by the father and the guardian ad litem, imposed monetary sanctions against Spencer. On reconsideration, the chancellor rescinded the portions of her contempt order which sentenced Spencer to incarceration. Spencer appeals.

Summary of Opinion Analysis: Issue 1: Sanctions Spencer argues that the chancellor erred when imposing sanctions against her under the Litigation Accountability Act and M.R.C.P. 11. If any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay, the court may order such a party, or his attorney, or both, to pay the opposing party or parties the reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorney’s fees. Here, the chancellor committed plain error and therefore abused her discretion by awarding a judgment of fees and expenses greater than that supported by the record. There is nothing in the Litigation Accountability Act or Rule 11 which supports awarding attorneys’ fees and expenses in excess of those actually incurred. Both the Act and the Rule allow only for the recovery of “reasonable” fees and costs. Additionally, the chancellor erred in awarding fees and expenses to the father’s attorney, since Rule 11 explicitly instructs that the trial court order the sanctioned party to pay to the opposing party or parties the reasonable expenses incurred. Spencer challenges the merits of the grounds for sanctioning her. The chancellor’s grounds for her findings under the Litigation Accountability Act include Spencer’s numerous filings on behalf of the mother to have the custody of the children returned to the mother and alleging that the father abused their daughter, Spencer’s representation on behalf of the grandmother and her claim for grandparents’ visitation, and Spencer’s claims and defenses with respect to the gag order and section 41-21-151. The record supports the chancellor’s findings that the claims concerning the dissemination of the daughter’s medical records and custody claims were without substantial justification. Therefore, the chancellor did not err in finding Spencer liable for sanctions under the Litigation Accountability Act. Under Rule 11, a pleading is frivolous only when, objectively speaking, the pleader or movant has no hope of success. While Spencer’s initial effort to have the children returned to their mother may have been a good-faith effort to reduce the trauma to the children caused by separation from their custodian, the subsequent pleadings crossed the line. Thus, the chancellor did not abuse her discretion in finding the several pleadings filed by Spencer constituted “harassment” under the Rule. The judgment which awarded $25,000 each to the guardian ad litem and counsel for the father is vacated and the case remanded for a factual finding of the amount of reasonable attorneys’ fees and costs. Issue 2: Contempt Spencer argues the chancellor erred in holding her in constructive criminal contempt for failing to appear at a hearing she noticed, because her failure to appear in court was not willful, the law required her contempt hearing to be held in public, and the chancellor had substantial personal involvement in its prosecution. To hold a contemnor in contempt, the contemnor must be provided a specification of the charges against him, notice, and a hearing. Spencer did not raise an objection to her lack of notice or specification of the charges at the pre-trial hearing on contempt and sanctions nor did she object to testimony about her failure to appear on this date or move for a continuance in order to prepare to respond to this charge. Thus, Spencer waived her right to notice and specification of the charge against her. There is no requirement that Spencer’s conduct be willful and thus no merit to her argument that the contempt judgment should be set aside for lack of willfulness on her part. Spencer had separate counsel to represent her interests at the hearing on contempt and sanctions. She did not object to the private nature of the hearing at the time it occurred. The court permitted her to call witnesses in her defense and to testify on her own behalf. Finally, the chancellor rescinded the portions of her contempt order sentencing Spencer to imprisonment. It is not a violation of the due process clause to hold contempt hearings in youth court abuse proceedings out of the public eye under these circumstances in this case. In addition, the record shows that the chancellor did not become substantially involved with the prosecution of this contempt charge such that the chancellor did not maintain the detachment necessary for ruling on this contempt. Spencer also argues that the chancellor erred in finding her in constructive criminal contempt for violating the Youth Court Act and the gag order entered by the chancellor. She raises as error the same arguments concerning notice, the requirement of a detached chancellor and a public trial. She also raises a challenge to the sufficiency of the evidence of her guilt. By appearing and defending herself through counsel against these charges, Spencer waived whatever deficiency existed with respect to the notice. Furthermore, the chancellor did not prosecute these contempt charges. No due-process violation occurred simply because the contempt hearing was subject to the confidentiality statutes applicable to proceedings in Youth Court. The verbal and written gag orders are not sufficiently explicit or clear to give fair notice to men of common intelligence of the conduct which would offend these orders. Therefore, the chancellor’s judgment holding Spencer in contempt for violating these orders is in error. In addition, the evidence is insufficient to show that Spencer’s conduct was a willful or contumacious violation of the Youth Court Act beyond a reasonable doubt. Issue 3: Subpoenas Spencer argues the chancellor erred in holding her in contempt for causing several subpoenas to issue. The conduct for which the chancellor held Spencer in contempt occurred both in the chancellor’s presence and outside the chancellor’s perception. Spencer made the misrepresentation concerning the nature of the subpoenas in person to the chancellor to obtain her approval to have them issued. The language which appeared within the subpoenas and the request that the respondent produce documents were facts outside the chancellor’s personal knowledge. Prior to the hearing on contempt, neither the father nor the guardian ad litem requested the chancellor hold Spencer in contempt for violating the chancellor’s order regarding subpoenas. While Spencer waived notice of this contempt charge by appearing and defending herself through separate counsel, it appears from the record that the chancellor instigated and prosecuted this contempt charge. It was improper for the chancellor to sit in judgment where she had substantial personal involvement in the prosecution of this charge. Therefore, the chancellor should have recused herself from hearing this contempt matter.


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