In re Spencer
| Docket Number: | 2006-CA-00735-SCT Linked Case(s): 2006-CA-00735-SCT ; 2006-CA-00735 |
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| Supreme Court: |
Opinion Date: 02-28-2008 Opinion Author: Waller, P.J. Holding: Affirmed in Part, Reversed and Rendered in Part, Reversed and Remanded in Part, and Vacated and Remanded in Part. |
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| Additional Case Information: |
Topic: Criminal contempt - Sanctions - Litigation Accountability Act - M.R.C.P. 11 - Due process - Issuing of subpoena - Recusal of chancellor Judge(s) Concurring: Smith, C.J., Diaz, P.J., Carlson, Graves, Dickinson and Lamar, JJ. Non Participating Judge(s): 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 |
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| Trial Court: |
Date of Trial Judgment: 04-18-2006 Appealed from: Clarke County Chancery 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 On reconsideration, the chancellor rescinded the portions of her contempt order which sentenced Spencer to incarceration.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 |
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| Note: | This opinion was withdrawn by the Supreme Court on 6/19/2008. The modified opinion may be found at: http://www.mssc.state.ms.us/Images/Opinions/CO47260.pdf | |
| Party Name: | Attorney Name: | |||
| Appellant: | In Re: Karen H. Spencer |
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Criminal contempt - Sanctions - Litigation Accountability Act - M.R.C.P. 11 - Due process - Issuing of subpoena - Recusal of chancellor |
| Summary of the Facts: | A grandmother and a mother (see D.C. v. D.C. above) retained attorney Karen Spencer to represent them in a child-custody matter before the Clarke County Chancery Court. 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 be incarcerated as sentence for the contempt. The chancellor also 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. The chancellor entered a judgment which ordered Spencer to pay $25,000 to the guardian ad litem and an identical judgment to be paid to counsel for the father. The testimony at the hearing on the motions for sanctions indicated that the guardian ad litem incurred $11,249 in fees and expenses up to February 3, 2006. His invoices were entered as exhibits, reflecting an outstanding balance of $12,449.18 in fees and expenses as of February 8, 2006. The testimony also reflected that counsel for the father incurred $11,861.36 in fees and expenses up to January 31, 2006. He testified he charged $150 per hour and anticipated billing his client fifty-seven additional hours from that date until the end of trial. 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. While the chancellor was within her discretion in finding the grandparents’ visitation claim, the claims concerning the dissemination of the daughter’s medical records, and custody claims were without substantial justification under the Litigation Accountability Act, the chancellor abused her discretion by awarding a judgment of fees and expenses greater than that supported by the record. 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 she filed in the case crossed the line. Thus, the chancellor did not err in finding Spencer liable for attorneys’ fees and costs under Rule 11 but did err in awarding fees and costs in excess of the amounts actually incurred. Issue 2: Criminal contempt Spencer argues the chancellor erred in holding her in constructive criminal contempt for failing to appear at a hearing she noticed. She claims she received no notice that she would be found in contempt for this act prior to the sanctions hearing. To hold a contemnor in contempt, the contemnor must be provided a specification of the charges against him, notice, and a hearing. Spencer waived her right to notice and specification of the charge against her. She did not raise an objection to her lack of notice or specification of the charges at the pre-trial hearing on contempt and sanctions and did not 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. Spencer also argues her contempt hearing should have been held in public. 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. It is not a violation of the Due Process Clause of the Fourteenth Amendment to hold contempt hearings in youth court abuse proceedings out of the public eye under these circumstances. Spencer also argues that the chancellor became personally and substantially involved in the prosecution of this contempt charge, such that another judge should have been appointed to consider it. However, the chancellor did not become substantially involved with the prosecution of this contempt charge so as to lose her detachment. The chancellor sentenced Spencer to pay a $100 fine or be incarcerated for twenty-four hours, a sentence substantially below the maximum allowed by statute. 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. The verbal and written gag orders entered by the chancellor are too vague to enforce. The 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. Also, 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 and judgement is rendered in favor of Spencer. Issue 3: Issuing of subpoena Spencer argues that the chancellor erred in holding her in contempt for causing several subpoenas to issue after a hearing. 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. Therefore, the judgment of contempt against Spencer for violating the order regarding subpoenas is criminal in nature and is one of constructive, rather than direct, contempt. 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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