Gwynn v. Gwynn , 1975 Alas. LEXIS 308 ( 1975 )

OPINION

ERWIN, Justice.

On June 26, 1970, appellant was awarded a default divorce from Robert Gwynn and was granted custody of the three minor children of the marriage. In November, 1972, the custody order was modified and custody of two of the children was awarded to their father, who took them to Montana.

The evidence shows that for a period of eight months after the children were taken by appellee, appellant was neither notified nor aware of the whereabouts of these two children. Then, in July, 1973, she received a series of long-distance phone calls from them complaining of mistreatment by their father and paternal grandmother which included physical abuse and lack of supervision. They also related that their father was considering moving to Australia where the children believed they would never again see their mother.

After three days of such phone calls appellant wired money to an airport in Montana, enabling the children to fly to her home in Anchorage on July 9, 1973. On July 16, 1973, appellant was ordered to show cause why she should not be held in contempt of the custody order, and was further required to produce the two children before the superior court.

At the contempt hearing, having surrendered custody of the children as ordered, appellant requested a jury trial. The court below denied the request, deeming that the proceeding involved a civil contempt affecting the rights of the parties rather than a criminal contempt affecting the powers of the court. The court subsequently found appellant to be in contempt and imposed a fine of $200 and a jail sentence of thirty days. Both the fine and the jail sentence were suspended on condition that appellant not perform similar acts in the future. Appellant appeals from the contempt order, alleging error in the court’s denial of a jury trial.

Appellant’s actions brought her within AS 09.50.010(5) which defines as an act of contempt “ . . . [the] disobedience of a lawful judgment, order, or process of the court . . . .” She was therefore subject to imprisonment under AS 09.50.020¹ if her actions defeated or prejudiced the rights of the other party to the action, Robert Gwynn. It appears that the trial judge so characterized the nature of her alleged contempt.

We have held that an accused is entitled to a jury trial upon demand in any criminal prosecution, and have stated that a criminal prosecution for such purposes includes “any offense a direct penalty for which may be incarceration in a jail or penal institution.” Baker v. City of Fairbanks, 471 P.2d 386, 401, 402 (Alaska 1970). Applying Baker’s definition of a criminal prosecution, we held that the right to trial by jury extended to direct criminal contempts. State v. Browder, 486 P.2d 925, 937 (Alaska 1971).² In Johansen v. State, 491 P.2d 759 (Alaska 1971), we noted that even those contempts which are traditionally characterized as civil con-tempts almost invariably include punitive as well as remedial elements.³ We held that an alleged contemnor faced with a possible deprivation of liberty in civil contempt proceedings for non-support must be afforded a jury trial on the factual issue of his willful non-compliance with the court’s directive.⁴ In Otton v. Zaborac, 525 P.2d 537 (Alaska 1974), we held that due process also required that a purported indigent contemnor was entitled to appointed counsel where a civil contempt was tried to a jury.

Because the contempt with which appellant was charged constitutes an offense with a possible jail sentence, the proceedings here fall squarely within our definition of a criminal prosecution in Baker, supra. Furthermore, while the alleged contempt is an indirect one, as was the contempt treated in Johansen, the rationale of Browder, which involved a direct criminal contempt, is applicable. We stated in Browder that

fundamental fairness requires that no one individual should be permitted to act as prosecutor, trier of fact, and judge in the same proceeding.⁵

There is similar cause for concern where a judge may, as was done here, summarily convict and imprison for a past violation (as opposed to a continuing violation) of an order of his own creation.

The Browder, Johansen and Otton decisions concerned contempt findings with strongly punitive overtones, in contrast to proceedings involving the remedial use of contempt solely to compel the contemnor to correct his conduct or to perform his obligations.⁶ The effect of these decisions is to afford certain basic procedural protections to those threatened with incarceration for such contempts.

At the time of appellant’s contempt hearing, no remedial action to correct her conduct remained available to the court. The children brought to Anchorage by appellant had been surrendered to the court and appellant had ceased acting contrary to the court’s authority. Since appellee’s right to custody had been satisfied, the major remaining interest to be protected by sentencing the appellant was the vindication of the authority of the court. The essential nature and justification for the sentence here imposed is thus punitive.

We recognized that the court below may well have intended merely to coerce future compliance with its custody order. We do-not, however, believe that by suspending, sentence the trial court has in any way obviated the punitive nature of the sentence ⁷ or the policies requiring a jury as fact finder. If the court was empowered to summarily punish by imposing a jail sentence and suspending it, it could likewise have required appellant to serve the sentence imposed. Furthermore, the court would be free to reinstate its suspended sentence upon a future summary finding that appellant had committed a similar contumacious act.

In order for conduct to constitute a contempt, it must be willfully contumacious. Johansen v. State, 491 P.2d 759, 767 (Alaska 1971); State v. Browder, 486 P.2d 925, 943 (Alaska 1971). We stated in Browder that an act of contempt is “done voluntarily and intentionally, that is, with the intent to disobey or disregard the law.” ⁸ The particular facts of this case raise."a substantial question as to whether appellant’s conduct was willfully disobedient. In conformity with the procedures outlined in Johansen, once the moving party has established appellant’s non-compliance with the court’s order, appellant is entitled to a jury trial if she raises such a factual-issue in her defense.

We do not here suggest that all civil contempts involving possible incarceration make a jury trial available to the defendant. A contemnor may, for example, be summarily confined in order to compel performance of an act which he is capable of performing. AS 09.50.050. This remedial confinement to rectify a continuing act of contumacy is quite different from the fixed sentence meted out to the appellant at bar for her past actions.

Reversed and remanded to the court below for further proceedings in conformity with this opinion.

1 . AS 09.50.020 provides:

A person who is guilty of contempt is punishable by fine of not more than $300 or by imprisonment for not more than six months. However, when the contempt is one mentioned in § 10 (3)-(12) of this chapter, or in an action before a magistrate, the person is punishable by a fine of not more than $100 unless it appears that a right or remedy of a party to an action or proceeding was defeated or prejudiced by the contempt, in which case the penalty shall be as prescribed for contempts described in § 10(1) and (2) of this chapter.

2 . We noted in Browder that a direct criminal contempt was punishable by a fine up to $300 or incarceration up to six months. 486 P.2d at 933.

3 . 491 P.2d at 764.

4 . Id. 491 P.2d at 766, 767.

5 . 486 P.2d at 939.

6 . It is crucial to note that under Johansen, a showing by the alleged contemnor of a legal excuse for noneompliance (in that ease, inability to comply was recognized as such an affirmative defense) would demonstrate that the subsequent imposition of a jail sentence could only be punitive rather than remedial, for once compliance is so excused, incarceration can no longer be said to have any coercive justification. Where confinement cannot serve to accomplish the remedial object sought, or where there is no direct remedial objective left to be achieved, any incarceration — even when designated civil in nature — takes on a clearly punitive character. This possibility of punitive sanction gives rise to the need for jury trial as a procedural safeguard.

7 . We note that the defendant in Johansen received a deferred sentence, which was • to coerce future compliance with the order. We deemed that sentence, like the one imposed here, punitive in nature.

8 . 486 P.2d at 943.