Hodges v. Gray , 321 Ark. 7 ( 1995 )

Robert H. Dudley, Justice.

Appellant Henry Hodges, an attorney, appeals from being four times held in contempt of court by Chancellor Alice Gray for contumacious statements made during the argument of a child custody case. Appellant Hodges represented Pamela Skokos, the former wife of Theodore Skokos, also a member of the bar, in an extended divorce and child custody case. The record clearly reflects a contest of wills between counsel and the chancellor. At one point, Ms. Skokos petitioned this court for a writ of certiorari to disqualify Chancellor Gray from hearing the case because of her bias and prejudice. Skokos v. Gray, 318 Ark. 571, 886 S.W.2d 618 (1994).

I.

Chancellor Gray moves for this court to dismiss this appeal because of the doctrines of either res judicata or law of the case. In support of the argument, she states that in our earlier denial of certiorari we wrote:

Our consideration of Ms. Skokos’s allegations in response to her petition for certiorari will preclude us from considering them again, should there be a later appeal. Henderson Methodist Church v. Sewer Improvement Dist. No. 142, 294 Ark. 188, 741 S.W.2d 272 (1987); Bertig Bros. v. Independent Gin Co., 147 Ark. 581, 228 S.W.2d 392 (1921); Note, 17 Ark. L. Rev. 193 (1963).

Id. at 573, 886 S.W.2d at 621.

Our statement about the consequences of seeking certiorari is a correct statement of the law, but it is not applicable to this appeal by appellant Hodges. The issue decided in Skokos v. Gray was whether, because of bias and prejudice, a writ of certiorari should direct the chancellor to refrain from hearing the divorce and custody case involving the Skokoses. Appellant Hodges has never asked the chancellor to refrain from holding him in contempt of court because of bias or prejudice against him. Because both the parties and the issues are different, neither doctrine applies, and we decline to dismiss this appeal.

II.

Appellant Hodges’s first assignment is that the trial court erred in summarily holding him in criminal contempt on each of the four occasions because the evidence was insufficient. We affirm the holdings of contempt on the first two occasions and reverse and dismiss the second two holdings.

A.

Summary punishment for contempt committed in the “presence or hearing” of the court is an inherent power and is specifically reserved to the courts by the constitution. Yarbrough v. Yarbrough, 295 Ark. 211, 748 S.W.2d 123 (1988). This case involves criminal contempt, as fines were imposed and the punishment could not be avoided by performing an affirmative act. See Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988). The standard of review of a case of criminal contempt is settled. An appellate court views the record in light most favorable to the trial judge’s decision and will sustain the decision if supported by substantial evidence and reasonable inferences therefrom. Yarbrough, 295 Ark. at 212, 748 S.W.2d at 123.

B.

The facts leading up to each of the four holdings of contempt are set out in sequence in order to address appellant Hodges’s argument that “the contempt findings against [him] are legally insufficient.” Different parts of the divorce case had been tried over a period of fifteen months. All of the evidence on child custody had been presented, but even after that long period of time, custody had not been finally determined. During the fifteen months of proceedings, Ms. Skokos’s attorneys, appellant Hodges and co-counsel Robert L. Robinson, twice filed petitions asking Chancellor Gray to disqualify because of an alleged bias and prejudice against Ms. Skokos. They aggressively pursued the petitions, but the chancellor refused to disqualify. Subsequently, the chancellor set August 25 as the date for final arguments on the child custody issue. Each side was allotted ten minutes to argue the custody issue.

On August 24, 1994, the day before the arguments on custody were scheduled to be heard, appellant Hodges filed a complaint against Chancellor Gray with the Arkansas Judicial Discipline and Disability Commission. The complaint alleged that in an unrelated case Chancellor Gray ordered her law clerk, who was not qualified to serve as a special judge, to grant a divorce for another of Hodges’s clients. On that same day, appellant filed a third motion on behalf of Ms. Skokos requesting Chancellor Gray to disqualify, this time because of the complaint before the discipline commission.

On the 25th, when the arguments were scheduled to begin, Robert Robinson, Hodges’s co-counsel, asked the chancellor to hear the third motion to recuse. She declined and ordered the attorneys to argue the custody matter. Robinson insisted on making a record, but the chancellor repeatedly told him that each side was allowed only ten minutes to argue the custody matter and that he would be removed from the courtroom if he continued to try to argue the disqualification matter. Robinson stated that at prior hearings involving the other motions to disqualify, the chancellor had declined to rule on substantive motions until she had decided on the motions to recuse. The chancellor replied that this hearing was for final arguments on custody, no new evidence was to be presented, and there was no need to decide the recusal question before hearing closing arguments.

Perlesta A. Hollingsworth, one of the attorneys for Mr. Skokos, moved to withdraw his motion for an immediate ruling on permanent custody and asked instead to argue only the issue of temporary custody. Appellant Hodges responded that there had been no notice of a hearing on temporary custody, and if the chancellor “[got] into that issue [she would] need to get into these other issues, as well.” The chancellor instructed appellant Hodges to let Mr. Hollingsworth finish his statement, but appellant continued to respond to the motion. During Mr. Hodges’s response, he first stated that there had been no notice of a temporary hearing and then renewed his argument that the chancellor should hear the motion to disqualify. The chancellor ruled that the hearing would proceed with the final arguments as originally scheduled and that appellant Hodges would not be allowed to present the motion to disqualify at that time. Mr. Hodges then asked if the hearing could be recessed until the chancellor heard the motion to dismiss. The chancellor denied the motion.

Mr. Hollingsworth again asked for a hearing on temporary custody. Appellant Hodges stated, “Now, is Mr. Hollingsworth now changing the Court’s view as to whether we are going to have final arguments and close this custody case period?” The chancellor asked for appellant Hodges’s response to Hollingsworth’s request, and he replied that he wished to proceed with closing arguments, but again objected to her refusal to first hear the disqualification motion because it was a departure from her policy in the past.

Finally, appellant’s argument on custody began as follows:

May it please the court, Judge, this has been a long case and you are now hearing final arguments, as I understand it, on the custody issue.

I thought to myself, how can I convince you coming over here that Mrs. Skokos, a wife of 27 years, ought not to be parted from her 13 year old daughter and I am convinced that I can’t convince you because you made up your mind previously.

I think you made up your mind when you removed this lady and her 12 year old daughter at the time from her marital home on Edgehill.

The chancellor instructed Mr. Hodges that this was not the time to criticize the court’s decisions, but to summarize the evidence in closing argument.

Mr. Hodges’s reply was:

I am entitled, Your Honor, respectfully suggest to you that I am entitled to make my closing arguments.

You have given me — after 15 months in this case on custody you have given me ten minutes to summarize it and I think I am entitled to use those minutes however I so choose. Now, that is exactly what I think and I am going to continue. (Emphasis added.)

At this point, Chancellor Gray held appellant in summary contempt and amerced a $200.00 fine. The chancellor additionally noted the presence of the newspaper reporter and television camera, and said, “You have the media waiting and you can also appeal. You have other remedies but your ten minutes here is not going to be allocated for that.” Appellant Hodges asked, “Is what you just said counted against my ten minutes?”

1.

Appellant Hodges argues that the foregoing facts are legally insufficient to support the holding of summary contempt. A subsequent written order notes that the holding of contempt was made because appellant “refused to follow the Court’s directions.”

An act is contemptuous if it interferes with the order of the court’s business or proceedings, or reflects upon the court’s integrity. Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 11 (1993); see also Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984). The inherent power to punish for contempt should never be exercised except where the necessity is plain and unavoidable if the authority of the court is to continue. Edwards, 284 Ark. at 63, 679 S.W.2d at 197 (citing Freeman v. State, 188 Ark. 1058, 69 S.W.2d 267 (1934)). The court’s contempt proceedings are to preserve the power and dignity of the court, to punish for disobedience of orders, and to preserve and enforce the rights of the parties. Id. An attorney should not engage in conduct which offends the dignity of the court. Davis v. Goodson, 276 Ark. 337, 635 S.W.2d 226 (1982). An attorney may make a proper objection to a ruling of the court, but then should abide by the ruling so long as it remains in effect. Id. at 339, 635 S.W.2d at 227.

Here, the chancellor clearly and repeatedly instructed the attorneys that she was not going to hear a third motion to disqualify at that time and that the hearing was limited to argument on the custody issue. Counsel should have followed the court’s ruling and limited comments to the custody issue. Instead, appellant repeatedly brought up the motion to recuse in clear defiance of the court’s order. Finally, appellant stated that he was going to use his time for closing argument however he chose. Viewing the record in the light most favorable to the trial judge, as we must do, Yarbrough, 295 Ark. at 212, 748 S.W.2d at 123, there is sufficient evidence to support the holding of contempt.

2.

Appellant proceeded with final argument and stated: “In spite of what this Court has ruled in the past I think the real issues are very, very clear,” adding that “there is no worse case scenario than for fifteen months what this court has allowed....” Next he began to address factors a chancellor ought to consider in determining child custody. The argument, which immediately precedes the second holding of contempt, was as follows:

And the last thing is love and affection. Let’s talk about the first point. Mr. Skokos’s moral fitness. Now, where does that begin? That begins when he had sexual relations in their marital home — not in their marital home but in their marital bed.

Now, Judge, are you going to listen to me or are you going to —

THE COURT: That is Fifty Dollars, Mr. Hodges.

The subsequent written order notes that the remark was made when the court “summoned the bailiff.” Appellant Hodges later described it as the court “visiting” with the bailiff. The transcript provides no additional information. An audio tape included in the record only adds the fact that this occurrence took place very quickly. Viewing the evidence and all reasonable inferences as we must, the remark, when taken in context of the entire argument, constitutes substantial evidence to support the holding of contempt. Appellant Hodges’s argument, with all reasonable inferences, was that the chancellor was biased and had already made her mind up about the case, that she had allowed a worst case scenario to take place, and now, because she summoned the bailiff or visited with the bailiff, she would not even listen to him. The statement was disrespectful and tended to impair the respect due the court’s authority. Thus, it was contumacious. See Ark. Code Ann. § 16-10-108(a) (Repl. 1994).

3.

Immediately after the chancellor summarily fined appellant for the foregoing comment, appellant responded, “Well, I would like the record to show that you are visiting with Billy the bailiff.” Chancellor Gray then held appellant in summary contempt and fined him for the third time.

Appellant Hodges’s argument is well taken that the statement, even when taken in context of all the other statements, did not constitute a disrespectful or derogatory remark and did not constitute a violation of an instruction by the court. Rather, it shows that appellant was attempting to have the record accurately reflect, for the purpose of this appeal, that the chancellor said something to the bailiff. That was entirely proper. Further, there is nothing to indicate that the reference to “Billy the bailiff” was anything other than an attempt to identify the person to whom the chancellor spoke.

4.

The chancellor had previously fined one of Mr. Skokos’s attorneys for using the word “bullshit” during an argument and had ordered the attorneys not to use inappropriate language. In his argument on custody, appellant Hodges stated that the minor child’s attorney ad litem had a conflict of interest, but still the chancellor refused to disqualify the attorney ad litem. Appellant Hodges argued to the court that this refusal placed Ms. Skokos in an impossible position because she was criticized by the attorney ad litem if she did not give Mr. Skokos-visitation, but when she allowed Mr. Skokos to visit the child, he refused to return the child to her and claimed he had full custody. Appellant concluded that, as a result, Ms. Skokos was “damned if she does and damned if she doesn’t.” At that point, the chancellor, for the fourth time in the hearing, held appellant in summary contempt for using “that language.”

The subsequent written order states that the court had warned appellant not to use inappropriate language “such as hell and damned.” Again, appellant Hodges’s argument is well taken that there is no substantial evidence to support a holding of contempt. Rosenzweig, 295 Ark. at 585, 751 S.W.2d at 734. It is clear from the statement that the words were not used as expletives.

Before a person may be held in contempt for violating a court order, the order must be in definite terms as to the duties imposed on him, and the command must be express rather than implied. Lilly v. Earl, 299 Ark. 103, 771 S.W.2d 277 (1989). When, under the circumstances and the legal issues involved, a party does all that is expressly required of him, it is error to hold him in contempt. See Wood v. Goodson, 253 Ark. 196, 485 S.W.2d 213 (1972). When there is nothing in a court order to indicate a party’s specific duty to do something, then this court has refused to find that the party is in contempt. See Lilly, 299 Ark. at 111, 771 S.W.2d at 281.

The earlier order of the chancellor did not constitute notice that a word that is sometimes used as an expletive could not be used in another context. The United States Supreme Court has held that even the use of street language or vernacular cannot constitutionally support a conviction of criminal contempt when it was not directed at the judge or any court officer and did not constitute an imminent threat to the administration of justice. See Eaton v. Tulsa, 415 U.S. 697 (1974) (holding that the accused’s use of the word “chicken shit” to describe his assailant during cross-examination did not constitute a threat to the court).

In summary, we hold that there was substantial evidence to support the first two holdings of contempt, but there was no basis for the second two. Accordingly, at this point, we reverse and dismiss the second two holdings of contempt.

III.

Appellant next argues that, even if there was substantial evidence of contempt on the first two occurrences, he had a right to criticize the judge, who is a public official, under the First Amendment. In support of the argument he cites New York Times v. Sullivan, 376 U.S. 254 (1964). The argument is without merit because even protected speech is not equally permissible in all places at all times. Cornelius v. NAACP Legal Defense Fund, Inc., 473 U.S. 788, 799 (1985). In general it may be said that the State may place reasonable time, place, and manner restrictions on speech that takes place in a public forum. Ronald D. Rotunda and John E. Nowak, Treatise on Constitutional Law § 20.47 at 296 (2d ed. 1992).

The history and development of contempt proceedings do not suggest such a restrictive interpretation of contempt powers that courts would be rendered powerless to enforce orderly sanctions for misconduct by members of the bar and would be rendered powerless to insure that justice and fairness took place. Rather, the powers of contempt are reasonable as applied to time, place, and manner restrictions on freedom of speech. Cornelius, 473 U.S. at 806; see also Spencer v. Davis, 290 F. Supp. 531 (W.D. La. 1968).

IV.

Appellant next contends that even though the evidence is sufficient on the first two holdings of contempt, reversal is mandated because of lack of notice and opportunity to defend and because the determination should be made by another judge. However, neither argument was made in the trial court, either during the custody hearing or in a later motion. This court does not address arguments raised for the first time on appeal. Even constitutional arguments are waived on appeal if they are not raised at trial. Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992); Powell v. Burnett, 304 Ark. 698, 805 S.W.2d 50 (1991). Thus, we do not address that point of appeal.

Affirmed in part; reversed and dismissed in part.

Brown and Roaf, JJ., not participating. Corbin, L, and Special Justice Blair Arnold dissent.