Divorce, Texting and Contempt

As I’ve noted in earlier posts, a judge has the power to hold one or more participants in a trial or hearing in contempt. As Wikipedia explains, contempt, or “contempt of court”, refers to a judicial order that declares someone has “disobeyed or been disrespectful of the court’s authority.”

The law of contempt encompasses two dichotomies: direct contempt versus indirect contempt; and criminal versus civil contempt. Wikipedia outlines the difference between direct and indirect contempt: Direct contempt occurs

the presence of the . . . judge . . . and may be dealt with summarily: the judge notifies the offending party that he or she has acted in a manner which disrupts the tribunal and prejudices the administration of justice. After giving the person the opportunity to respond, the judge may impose the sanction immediately.

As Wikipedia also notes, indirect contempt occurs

outside the immediate presence of the court and consists of disobedience of a court's prior order. . . . A person cited for indirect contempt is entitled to notice of the charge and an opportunity for hearing of the evidence of contempt and to present evidence in rebuttal.

The sanctions imposed on one held in contempt can be civil or criminal. As Wikipedia notes, since criminal contempt is a crime, “the contempt must be proven beyond a reasonable doubt”, and if it is proven beyond a reasonable doubt, “then punishment (such as a fine or . . . imprisonment) is imposed unconditionally.”

The sanction for civil contempt is coercive instead of punitive, i.e., is intended to coerce the contemnor into complying with the court’s order. As Wikipedia explains, the burden of proof in civil contempt is the preponderance of the evidence standard used in civil cases, and since the sanction is coercive, once the contemnor “complies with the court’s order, the sanction is lifted.”

And that brings us to Newcomer v. Newcomer, 2011 WL 6322985 (Ohio Court of Appeals 2011). Michael Newcomer and Megan L. Newcomer were “parties to a divorce action filed” in Lucas County, Ohio in September 2007. Newcomer v. Newcomer, supra. At some point thereafter, the judge who had the case entered “temporary court orders regarding child and spousal support, and payment for marital debts”; on December 31, 2009, Michael was held in contempt for failing “to pay certain debts of the parties”, a decision he later challenged. Newcomer v. Newcomer, supra.

In September of 2010, the judge issued an order that denied his challenges to the December, 2009 contempt citation and to an August 2, 2010 judgment also finding him in contempt and imposed a “30 day jail sentence,” which Michael served. Newcomer v. Newcomer, supra.

All that is simply preface to what came next. On December 8, 2010, “another hearing was held, relative to the divorce proceedings.” Newcomer v. Newcomer, supra. The opinion doesn’t specifically say this, but I gather this hearing was also concerned with marital assets and/or Michael’s ability to pay support and/or “marital debts.” Newcomer v. Newcomer, supra.

During that hearing, [Megan] called [Michael’s] girlfriend, Stephanie Emch (`Emch’) . . . to testify regarding her business, a teen nightclub. Emch had brought some business records, but it was determined during her testimony that other records were missing which were covered by the subpoena. At the court's instruction, Emch returned the next morning, bringing additional business documents and continued her testimony. It was discovered that one month's bank statement was missing, despite her efforts to comply with the subpoena.

Newcomer v. Newcomer, supra. The opinion notes that Emch testified “pursuant to a subpoena duces tecum,” which means she was subpoenaed to testify and to bring evidence with her. Newcomer v. Newcomer, supra. As Wikipedia notes, a subpoena ad testificandum orders someone to appear and testify (only), while a subpoena duces tecum orders someone to appear and produce evidence (and maybe testify, too).

At the December 9 hearing, Megan’s lawyer also questioned

Emch about alleged text messages between her and [Michael], in court the previous day. Emch acknowledged that she had texted [Michael], but that it had been during a break in the proceedings, when both attorneys were in chambers with the judge, not during her actual testimony.

Newcomer v. Newcomer, supra. “In response to this information, the judge stopped the

divorce hearing at approximately 9:30 a.m. The court then ordered [Michael] and Emch to appear at 1:00 p.m. for a contempt hearing regarding the text messaging, `visual communication’ during the hearing that morning, and `issues relative to the question of whether the subpoena has been honored.’

Emch was able to retain counsel for that hearing, who requested a continuance so that a defense could be prepared. Over counsel's vigorous objections, the court denied the request for continuance and immediately held a hearing as to the `direct contempt’ of appellant and Emch. The court also addressed Emch's failure to bring certain business documents with her to court, including the missing bank statement and `potentially, other documents.’

Newcomer v. Newcomer, supra. The contempt hearing would, therefore, address two issues: One was whether Emch should be held in contempt for not producing all of the records that were responsive to the subpoena duces tecum she had received; and the other was whether she should be held in contempt for texting with Michael during the break in the earlier proceeding.

At the contempt hearing, Emch testified, with regard to the first issue, that she had no

business background and was not an accountant or bookkeeper. She stated that her father, also not an accountant, kept the books for her business and had provided the records requested in the subpoena. After it was determined that the records were still incomplete, she had called her father that morning to bring whatever remaining records he had.

When she had attempted to tender those to [Megan’s] counsel prior to the contempt hearing, he refused them. Emch testified that, at 23 years old, she had never been subpoenaed before, had never testified or been in court before, and had thought she had complied with the subpoena when she brought the documents provided by her father. For her alleged failure to bring the requested documents, Emch was found in contempt, fined $200, and ordered to pay $250 to [Megan’s] attorney, for legal fees.

Newcomer v. Newcomer, supra.

With regard to the texting, the judge

immediately found Emch in `direct contempt,’ without permitting her to give any further testimony, except in mitigation. Emch then testified that, although she was still `on the stand,’ she had texted [Michael] during a break in the proceedings. She stated that she had not texted during her actual testimony, but did not realize that it might be inappropriate because it was during a break. Emch stated that she was nervous about testifying and feared saying anything that might harm [Michael].

For her `direct contempt’ for the alleged text messaging, Emch was sentenced to two days in the county jail, to begin immediately at the close of her testimony. Emch's attorney and the court had a lengthy, animated discussion regarding the propriety of the proceedings with no notice given, Emch's relative naiveté regarding legal proceedings, and the unintentional nature of her actions. The court denied a request for a stay and dismissed the attorney's objections, stating, `You may take it to the Court of Appeals.’

Newcomer v. Newcomer, supra.

The judge then also summarily found Michael to be in

direct contempt for engaging in texting with Emch. [Michael] also confirmed that the messaging was while Emch was on the stand, but the court was not in session, and the attorneys and judge were in chambers. [He] stated that no texting occurred during Emch's testimony and that he was also unaware that messaging was not permitted during the break. [Michael] was sentenced to serve five days in the county jail.

Newcomer v. Newcomer, supra.

Emch took the judge up on his suggestion and appealed to the Court of Appeals. In ruling on her appeal, the Court of Appeals noted that she was found guilty of

contempt for . . . texting to [Michael] Newcomer and failure to bring certain documents to court. Both contempt findings were criminal, since no purge conditions were given and the court's clear purpose was to punish Emch for perceived wrongdoing. . . . [T]he court abused its discretion in its finding of contempt for several reasons.

Newcomer v. Newcomer, supra.

The Court of Appeals found that neither action constituted direct contempt, which meant the judge “was required and failed to give proper notice of its intent to hold Emch in contempt or to grant a continuance so a defense could be prepared.” Newcomer v. Newcomer, supra. The court also found that the record in the case “fails to establish sufficient evidence that Emch’s actions constituted civil or criminal contempt, direct or otherwise.” Newcomer v. Newcomer, supra.

The Court of Appeals explained that during her testimony the first day of the hearing,

Emch, a young person, clearly established that she was wholly unfamiliar with the legal system and extremely nervous about testifying. The record shows the court's attitude towards her was overly stern from the outset, including multiple commands for her to `speak up’ or be held in contempt, despite her obvious discomfort and anxiety.

The record also indicates that the text messaging occurred the day before the court’s directive regarding any `communication, visual or otherwise’ between Newcomer and Emch while she was on the stand. The texting occurred during a break in the proceedings, while the judge and attorneys were in chambers, not during her testimony or when the court was in session. In addition, the substance of the texts was never . . . shown to have had any effect whatsoever on Emch's testimony.

Although we disapprove of texting during court proceedings, under the facts of this case, we conclude that [Emch’s] actions during the court recess did not constitute proof beyond a reasonable doubt of criminal direct contempt. The judge did not witness the action, it did not interrupt or disrupt the proceedings, and there was no proof that it threatened the administration of justice. Therefore, the trial court erred in finding Emch in contempt for the texting.

Newcomer v. Newcomer, supra.

The court also found that the judge erred in holding Emch in contempt for failing to produce all of the records. Newcomer v. Newcomer, supra. It noted that her testimony made it clear that she “knew nothing about accounting or how the books of her business . . . were kept”. Newcomer v. Newcomer, supra. It also noted that during the hearing Megan’s attorney commented that Emch clearly did not understand “`what’s going on in the business’”, after which the judge said “`that is readily apparent to the Court and to everyone sitting in this courtroom’”. Newcomer v. Newcomer, supra.

The Court of Appeals pointed out that when “the testimony and produced documents failed to reveal [Michael] was deriving any income from” Emch’s business, the judge “could have ended the search” for documents. Newcomer v. Newcomer, supra. “Instead, the court chose to elevate Emch’s business inexperience to the level of contempt” and, in so doing, “overreacted.” Newcomer v. Newcomer, supra. The Court of Appeals found that “[s]ince the court itself recognized that Emch knew nothing about the types of records requested, the record failed to support a finding of contempt, either by clear and convincing evidence or beyond a reasonable doubt.” Newcomer v. Newcomer, supra. It therefore reversed the contempt citations against Emch. Newcomer v. Newcomer, supra.

Michael also appealed the divorce court judge’s holding him in contempt for his part in the texting and sentencing him to five days in the county jail. Newcomer v. Newcomer, supra. The Court of Appeals rather cursorily disposed of his arguments on appeal:

[Michael] Newcomer argues that the court's finding of direct contempt for texting during the break was not supported by sufficient evidence. . . . [He also] asserts the trial court applied the wrong standard. We agree.

For the reasons discussed in Emch's appeal of the texting issue, we conclude that no direct contempt was committed, and the trial court erred in finding [Michael] guilty by `clear and convincing’ evidence. Since the sole purpose of the jail sentence was to punish [him], the applicable standard for criminal contempt should have been used, i.e., beyond a reasonable doubt. The record does not establish that [Michael’s] actions constituted contempt.

Newcomer v. Newcomer, supra.