Roger Dale Latham v. Michele Ann Latham

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2017-CA-00856-SCT
ROGER DALE LATHAM
v.
MICHELE ANN LATHAM
DATE OF JUDGMENT: 06/14/2017
TRIAL JUDGE: HON. JOHN S. GRANT III
TRIAL COURT ATTORNEYS: MARC EDWARD BRAND
DAVID BRIDGES
COURT FROM WHICH APPEALED: RANKIN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: DAVID BRIDGES
ATTORNEY FOR APPELLEE: MARC EDWARD BRAND
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED - 01/17/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE RANDOLPH, P.J., COLEMAN AND CHAMBERLIN, JJ.
COLEMAN, JUSTICE, FOR THE COURT:
¶1. Michele Ann Latham and Roger Dale Latham divorced on February 5, 2016. On
March 24, 2017, Michele filed a petition for contempt against Roger, claiming that he had
failed to comply with the divorce judgment. After a hearing, Chancellor John S. Grant III
found Roger in constructive criminal contempt for failing to comply with several terms of
the divorce judgment. Roger appeals, arguing that the chancellor erred because he did not
recuse himself before finding Roger in constructive criminal contempt.
¶2. Because Roger raises the argument for the first time on appeal, it has been waived.
Accordingly, the Court affirms the chancellor’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
¶3. On February 5, 2016, the chancellor granted Roger and Michele a divorce based on
irreconcilable differences. On March 24, 2017, Michele filed a petition for contempt1 against
Roger, asserting that he had failed to comply with several obligations of the marital
dissolution agreement, which had been incorporated in the final divorce judgment. Michele
requested that the chancellor find Roger in civil and criminal contempt. Roger was served
with a Mississippi Rule of Civil Procedure 81 summons, and a hearing was set for June 12,
2017, on the petition for contempt. Roger did not file response to the petition for contempt;
rather, he filed a motion for a continuance because he had a cruise vacation scheduled. The
chancellor denied the motion for a continuance. Roger did not appear for the hearing.
¶4. At the hearing, Michele called three witnesses to testify in support of her petition for
contempt. Michele also testified. Michele requested that the chancellor incarcerate Roger
for his violations of the divorce judgment. Roger’s attorney called one witness in his
defense. After both parties rested, the chancellor found Roger in civil contempt and criminal
contempt because he had failed to comply with certain obligations of the marital dissolution
agreement. On June 14, 2018, the chancellor entered a judgment of contempt and ordered
Roger to comply with certain terms of the marital dissolution agreement. The chancellor also
ordered Roger incarcerated for seventy-two hours, regardless of whether he complied with
the obligations set out in the order.
1
Michele had filed two previous petitions for contempt against Roger following the
final judgment.
2
¶5. Roger appeals, but does not challenge the chancellor’s finding of civil contempt.
Furthermore, Roger does not dispute that he was guilty beyond a reasonable doubt of
constructive criminal contempt; rather, Roger raises the following sole argument on appeal:
“The Chancellor erred when he did not recuse himself before finding that Roger was in
constructive, criminal contempt.”
STANDARD OF REVIEW
¶6. Roger appeals solely from the chancellor’s finding of criminal contempt. Typically,
the Court reviews criminal contempt matters ab initio and determines from the record
whether the alleged contemnor is guilty of contempt beyond a reasonable doubt. Dennis v.
Dennis, 824 So. 2d 604, 608 (¶ 7) (Miss. 2002). However, as previously noted, Roger does
not challenge the contempt finding; rather, Roger raises the sole issue of whether the
Chancellor erred by not recusing before finding Roger in constructive criminal contempt.
¶7. “The decision to recuse or not to recuse is one left to the sound discretion of the trial
judge, so long as he applies the correct legal standards and is consistent in the application.”
Tubwell v. Grant, 760 So. 2d 687, 689 (¶ 7) (Miss. 2000) (quoting Collins v. Joshi, 611 So.
2d 898, 902 (Miss. 1992)). The Court applies a de novo standard when reviewing procedural
issues raising questions of law. Corr v. State, 97 So. 3d 1211, 1213 (¶ 5) (Miss. 2012)
(applying a de novo standard of review to a contempt matter when the issue was whether the
chancery court did not recuse). Because the assignment of error is a question of law, the
Court will apply a de novo standard of review.
DISCUSSION
3
¶8. Two forms of criminal contempt exist: direct and constructive. Dennis, 824 So. 2d
at 608 (¶ 10). “Direct contempt occurs in the presence of the court and may be dealt with
immediately.” Id. In contrast, constructive, or indirect, contempt occurs outside the presence
of the court. Id. Here, the parties agree that the chancellor found Roger in constructive
criminal contempt because his contemptuous conduct had occurred outside the presence of
the chancellor. Roger does not dispute that he was guilty of criminal contempt beyond a
reasonable doubt; rather, Roger contends that before the chancellor had found him in
constructive criminal contempt, he had been entitled to certain procedural safeguards,
including the chancellor’s recusal.
A. Recusal of the Chancellor
¶9. At the trial level, Roger did not object to the chancellor’s presiding over the contempt
hearing by way of a motion or otherwise. “We are not required to address issues that are not
objected to at trial and preserved for appeal.” Dennis, 824 So. 2d at 611 (¶ 18). “The failure
to seek recusal generally is considered implied consent to have the judge go forward in
presiding over the case.” Rice v. State, 134 So. 3d 292, 299 (¶ 16) (Miss. 2014).
¶10. In Tubwell, defendant Robert Tubwell argued that the circuit court had erred by
failing to recuse from the case sua sponte in light of its alleged prejudice against Tubwell.
Tubwell, 760 So. 2d at 688-89 (¶ 5). The Court held that Tubwell’s argument was barred
because Tubwell had raised the assignment of error for the first time on appeal and had failed
to object or to file a motion asking for the circuit court to recuse. Id. at 689 (¶ 8). The Court
explained that, “[w]here the party knew of the grounds for the motion or with the exercise
4
of reasonable diligence may have discovered those grounds, and where that party does not
move timely prior to trial, the point will be deemed waived.” Id.
¶11. In In re Hampton, 919 So. 2d 949, 952 (¶ 1) (Miss. 2006), an attorney failed to appear
for a hearing and was found in criminal contempt by the circuit judge. On appeal, the
attorney argued that the circuit judge should not have presided because he was impartial,
biased, and had engaged in ex parte communications. Id. at 956-57 (¶ 27). The Court held
that the failure to object or to move for recusal of the circuit judge who had heard the
contempt charge resulted in waiver of the argument. Id. at 957 (¶ 27).
¶12. The ground that Roger asserts on appeal had warranted recusal was known prior to
his contempt hearing. As such, Roger consented to the chancellor’s ruling on Michele’s
petition for contempt. See Rice, 134 So. 3d at 299 (¶ 16). Because Roger failed to object or
to seek recusal of the chancellor at the trial level, we hold that his recusal argument has been
waived. See In re Hampton, 919 So. 2d at 956-57 (¶ 27); Tubwell, 760 So. 2d at 689 (¶¶
8-9).
¶13. The dissent suggests that Roger had no notice that he may be subject to the
chancellor’s finding of constructive criminal contempt. Notwithstanding the record support
that Roger did have notice, we find noteworthy that Roger did not argue lack of notice at the
contempt hearing, nor did Roger file a motion to set aside the finding of criminal contempt
based on any new revelation that he had been subjected to criminal contempt by surprise.
Furthermore, on appeal, Roger does not argue that he lacked notice that he might be found
in constructive criminal contempt.
5
¶14. “One of the most fundamental and long established rules of law in Mississippi is that
the Mississippi Supreme Court will not review matters on appeal that were not raised at the
trial court level.” Miss. Transp. Comm’n v. Adams ex rel. Adams, 197 So. 3d 406, 416 (¶
30) (Miss. 2016); see also Whittington v. H.T. Cottam Co., 130 So. 745, 749 (Miss. 1930)
(“If th[e] [C]ourt will decide correctly the questions presented and briefed in cases, it will
be doing well, without going out on a hunt for other questions.”).
¶15. “Most importantly, [Roger] allowed the chancellor to adjudicate his rights.” Dennis
v. Dennis, 824 So. 2d 604, 611 (¶ 18) (Miss. 2002) (holding that the contemnor waived
claims of defective service and violation of due process when he objected for the first time
on appeal). In Dennis, the Court enforced the well-established principle that
We are not required to address issues that are not objected to at trial and
preserved for appeal. Caston v. State, 823 So. 2d 473, 503 (Miss. 2002)
(citing Gatlin v. State, 724 So. 2d 359, 369 (Miss. 1998) (“If no
contemporaneous objection is made, the error, if any, is waived.”); Carr v.
State, 655 So. 2d 824, 832 (Miss. 1995) (appellate court is under no obligation
to review an assignment of error when an objection was not made or when an
objection was untimely)). See also EEOC v. Local 28 of the Sheet Metal
Workers Int’l Ass’n, 247 F.3d 333 (2d Cir. 2001) (contemnor waived claim
that its due process rights were violated where it did not raise a due process
argument until after court had rendered its decision); Peterson v. Highland
Music, Inc., 140 F.3d 1313 (9th Cir. 1998) (contemnor waived claim of due
process violations where he failed to raise a due process objection before the
court).
Dennis, 824 So. 2d at 611 (¶ 18).
¶16. Even assuming Roger had raised lack of notice as an assignment of error on appeal,
as the dissent now advocates, lack of notice remains subject to waiver. The Court has written
that, “[w]here a party does not waive proper notice of a contempt action, we have reversed
6
the contempt finding and remanded the matter to the chancery court.” Hanshaw v.
Hanshaw, 55 So. 3d 143, 146 (¶ 9) (Miss. 2011). In In re Spencer, 985 So. 2d 330, 340 (¶
34) (Miss. 2008), the Court held that a contemnor waived her right to notice and specification
of the charge against her because she did not raise an objection to her lack of notice or
specification of the charges at the hearing on contempt and sanctions. The position
advocated by the dissent suffers the same deficiency.
¶17. The reason why Roger has not raised lack of notice at any level is apparent from the
record. Put simply, the record refutes the dissent’s suggestion that Roger was not aware of
the constructive criminal contempt charges pending against him. Michele’s petition for
contempt stated that the chancellor had previously entered an order on January 20, 2017,
requiring compliance with the divorce judgment and warning that “failure to strictly comply
with the terms of th[e] [o]rder shall be enforceable by the contempt powers of this [chancery
c]ourt.” “[T]he ability to punish for criminal contempt is derived from the inherent powers
of the court.” Purvis v. Purvis, 657 So. 2d 794, 798 (Miss. 1994).
¶18. Michele’s petition also included a request that “Roger suffer such punishment as th[e]
[chancellor] deems reasonable and proper under the circumstances.” (Emphasis added.) The
dissent excludes Michele’s specific request in its recitation of the petition’s requests for
relief. “Criminal contempt penalties . . . are designed to punish the defendant for
disobedience of a court order; punishment is for past offenses and does not terminate upon
compliance with court order.” Dennis, 824 So. 2d at 608 (¶ 10). In Moulds v. Bradley, 791
So. 2d 220, 225 (¶ 9) (Miss. 2001), the Court held that the record clearly supported the
7
alleged contemnor’s assertion that he was not provided any notice that he would be tried for
criminal contempt because the petitioner’s attorney had expressly requested that the alleged
contemnor not be incarcerated. Unlike Moulds, in the case sub judice, Michele testified at
the contempt hearing and specifically requested that the chancellor order that Roger be jailed
as a consequence of his contempt.
¶19. Undoubtedly, Roger had notice that he had violated a term of the divorce judgment,
which could only have been remedied by the chancellor’s imposing a sanction of punishment
so as to constitute constructive criminal contempt. For example, Michele’s petition for
contempt alleged, inter alia, that Roger was in contempt of the divorce judgment by staying
overnight with a member of the opposite sex not related by blood or marriage to him in the
presence of their minor children. After hearing the evidence, the chancellor found Roger
guilty of the alleged conduct. Obviously, Roger could not have purged himself of the
impermissible overnight stays, which the chancellor found had already occurred.
¶20. Roger’s assignment of error is limited to whether our caselaw mandates that judges
recuse sua sponte in every case involving constructive criminal contempt. For the foregoing
reasons, the assignment of error has been waived. Had Roger properly preserved the issue,
Justice Maxwell’s well reasoned specially concurring opinion explains why sua sponte
recusal is not mandatory in all constructive criminal contempt cases.2
2
In constructive criminal contempt cases “[w]here the judge whose court or order is
offended has substantial personal involvement in the bringing and prosecution of the criminal
contempt proceedings, he may not adjudge the defendant’s guilt.” Cook v. State, 483 So. 2d
371, 376 (Miss. 1986). The Cook Court qualified its holding: “We do not wish here to be
understood as saying that any personal involvement in initiating criminal contempt
proceedings disqualifies a judge.” Id. n.6. Under Cook, and as further explained in Justice
8
B. Michele’s Request for Attorneys’ Fees
¶21. The chancellor ordered Roger to pay $2,500 in attorneys’ fees as part of the contempt
judgment. Buried at the conclusion of Michele’s brief is a one sentence request that the
Court award her one-half of the attorneys’ fees that had been awarded by the chancellor.
Specifically, without any citation of authority and without any citation of the record, she
writes, “Further, Appellee requests to be awarded one-half of the attorney’s fees awarded by
the trial court, or twelve hundred and fifty dollars ($1,250).”
¶22. When a prevailing party requests attorneys’ fees on appeal, “[t]ypically, th[e] Court
awards attorney fees on appeal in an amount equal to half the amount awarded at trial.”
Huseth v. Huseth, 135 So. 3d 846, 861 (¶ 47) (Miss. 2014). Because such an award may not
be fair and equitable in all cases, the Court has written that the “better practice” would be for
a party seeking attorneys’ fees on appeal “to file a motion in th[e] Court, supported by
affidavits and time records that establish the actual fees expended on appeal.” Hatfield v.
Deer Haven Homeowners Ass’n, Inc., 234 So. 3d 1269, 1277 (¶ 30) (Miss. 2017).
¶23. While the Court has declared that the better practice would be for a party seeking
attorneys’ fees on appeal to file a motion in the Court, we now clarify that Rule 27(a) of the
Mississippi Rules of Appellate Procedure requires it. Here, Michele did not file a motion
requesting attorneys’ fees on appeal; rather she buried a one sentence request in her brief.
Such requests do not comport with the Mississippi Rules of Appellate Procedure. Rule 27(a)
provides, in pertinent part,
Maxwell’s specially concurring opinion, sua sponte recusal is not mandatory in all
constructive criminal contempt cases.
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(a) Content of Motions; Response. Unless another form is elsewhere
prescribed by these rules, an application for an order or other relief shall be
made by filing a motion for such order or relief with proof of service on all
other parties. The motion shall contain or be accompanied by any matter
required by a specific provision of these rules governing such a motion, shall
state with particularity the grounds on which it is based, and shall set forth the
order or relief sought. If a motion is supported by briefs, affidavits, or other
papers, they shall be served and filed with the motion.
M.R.A.P. 27 (emphasis added).
¶24. Because Michele failed to make a viable request for relief under Rule 27, we decline
to consider her request. While the Court has suggested that the better practice for a party
seeking attorneys’ fees on appeal is to file a motion pursuant to Rule 27(a), we hold that,
henceforth, such requests must comply with Rule 27(a).
CONCLUSION
¶25. Because Roger waived his recusal argument by failing to raise it at the trial level, we
affirm the chancellor’s judgment. Because Michele failed to make a viable request for
attorneys’ fees on appeal, the Court declines to consider the request.
¶26. AFFIRMED.
RANDOLPH, P.J., BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.
MAXWELL, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION
JOINED BY RANDOLPH, P.J., COLEMAN, BEAM, CHAMBERLIN AND ISHEE,
JJ. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY KING, J. WALLER, C.J., NOT PARTICIPATING.
MAXWELL, JUSTICE, SPECIALLY CONCURRING:
¶27. I agree with the majority that, by not requesting that the chancellor recuse, Roger has
waived this issue on appeal. But given Roger’s argument, I find it would be helpful to
10
Roger—as well as the bench and bar—to explain why, in this particular constructive-
criminal-contempt case, Roger had to request the chancellor recuse to preserve this issue.
¶28. Part of Roger’s argument is that recusal could not be waived. He suggests it was the
chancellor’s duty to recuse sua sponte given the nature of the contempt. As Roger sees it,
our caselaw mandates judges recuse in every case involving constructive criminal contempt.
Roger’s view hinges on his reading of two cases—Cooper Tire & Rubber Co. v. McGill, 890
So. 2d 859, 868 (Miss. 2004), and In re Smith, 926 So. 2d 878, 888 (Miss. 2006). He argues
that, when read together, the cases “extend” the requirement to recuse sua sponte in any case
involving constructive criminal contempt. But a closer look shows that neither case alters
this Court’s well-established standard for when a judge must recuse in a constructive-
criminal-contempt case. Instead, both cases maintain that “[i]t is necessary for that
individual to be tried by another judge in cases of constructive contempt where the trial judge
has substantial personal involvement in the prosecution.” Smith, 926 So. 2d at 888
(emphasis added) (quoting In re Williamson, 838 So. 2d 226, 238 (Miss. 2002)); see also
Cooper Tire, 890 So. 2d at 869.
¶29. In other words, it is not simply the nature of the contempt that mandates recusal.
Indeed, the constructive criminal nature of the contempt is just part of the inquiry. The judge
must also have “substantial personal involvement in the prosecution” to trigger the due-
process requirement that the matter be tried by another judge. Corr v. State, 97 So. 3d 1211,
1215 (Miss. 2012) (quoting Graves v. State, 66 So. 3d 148, 151 (Miss. 2011)). “Examples
of ‘substantial personal involvement in the prosecution warranting recusal include cases
11
where the trial judge acts as a ‘one-man grand jury;’ where the trial judge is ‘instrumental
in the initiation of the constructive-contempt proceedings;’ and where the trial judge ‘acts
as prosecutor and judge.’” Id. (quoting Graves, 66 So. 3d at 154). E.g., Corr, 97 So. 3d at
1215 (holding that the chancellor had substantial personal involvement because he initiated
the contempt proceeding when he issued show-cause orders); In re Williamson, 838 So. 2d
at 238 (holding that the chancellor had substantial personal involvement because he was a
material witness in the contempt proceeding).
¶30. Here, Roger does not even argue the chancellor had substantial personal involvement
in the prosecution of the contempt proceeding—a proceeding admittedly initiated by his wife.
Nor does the record support such a finding. So the chancellor was not required to recuse sua
sponte. As the majority explains, recusal was discretionary. And the chancellor can hardly
be said to have abused his discretion by not recusing when he was never asked to do so.
RANDOLPH, P.J., COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ.,
JOIN THIS OPINION.
KITCHENS, PRESIDING JUSTICE, DISSENTING:
¶31. Roger Dale Latham received no notice that he might be held in constructive criminal
contempt, thus he had no reason to seek recusal of the trial judge. Therefore, I respectfully
dissent.
¶32. The waiver rule does not and cannot apply when the defendant is without notice that
he or she is at risk of being held in constructive criminal contempt, and no decision of this
Court holds otherwise. Constructive criminal contempt proceedings address “actions [that]
are committed beyond the presence of the court.” Purvis v. Purvis, 657 So. 2d 794, 797
12
(Miss. 1994). As such, and as noted by this Court in In re McDonald, 98 So. 3d 1040, 1044
(Miss. 2012), defendants in constructive criminal contempt proceedings are “entitled to
certain due-process safeguards, including the recusal of [the trial court] and notice of the
specific criminal charges against them.”
¶33. The majority relies on two decisions of this Court that are plainly distinguishable. The
majority first cites this Court’s opinion in Tubwell v. Grant for the proposition that
Tubwell’s failure to object to the judge’s ruling on his case resulted in his waiving his recusal
objection. Tubwell v. Grant, 760 So. 2d 687 (Miss. 2000). However, Tubwell has nothing
to do with a judge’s exercise of his contempt powers without notice. The trial court dismissed
the prisoner’s complaint as frivolous and noted that the prisoner already had been barred by
the United States District Courts from filing any additional petitions in the United States
Court of Appeals for the Fifth Circuit. Id. On appeal, Tubwell asserted that the trial judge
should have recused himself from deciding the issue on the merits. This Court held that
because Tubwell had failed to object contemporaneously or to file a motion for the trial court
to recuse, Tubwell had waived such an objection. Id. at 689. However, at no time was
constructive criminal contempt an issue, nor was Tubwell found in contempt.
¶34. The majority also cites In re Hampton, 919 So. 2d 949, 957 (Miss. 2006), which
involved an attorney who filed a petition for a writ of prohibition and then failed to appear
at the scheduled hearing. After the trial court asked the attorney why she had missed a
hearing about which she repeatedly had been reminded, the attorney failed to take
responsibility for her conduct and suggested that the trial court was to blame for the
13
confusion. Id. at 953. As a result, Hampton was held in direct criminal contempt. Id. at 954.
This case has no application to the present case because Hampton was found guilty of direct
criminal contempt. Acts of direct criminal contempt “may be handled by the sitting judge
instantly.” Id. at 956 (quoting Terry v. State, 718 So. 2d 1097, 1104 (Miss. 1998)). In both
In re McDonald, 98 So. 3d 1040 (Miss. 2012), and Corr v. State, 97 So. 3d 1211 (Miss.
2012), neither defendant sought the contemporaneous recusal of the trial court at the
contempt hearing. Regardless, in both cases, this Court found that, because the matter
concerned constructive criminal contempt, “the chancellor was required to recuse himself[.]”
In re McDonald, 98 So. 3d at 1045; Corr, 97 So. 3d at 1215.
¶35. The only issue of which Roger Dale Latham had notice was civil contempt. As stated
in Michele Ann Latham’s Petition for Contempt,
13
Michele requests that Roger be adjudicated in contempt of this Court and that
he shall suffer such punishment as this Court deems proper until he has purged
himself of contempt.
....
14
....
Moreover, Roger’s actions constitute willful and contumacious contempt of
this Court, and, therefore, this Court should award Michele attorney’s fees and
all costs of court. Wherefore, premises considered, the Petitioner, Michele Ann
Latham, prays that this her Petition for Contempt be received and filed and that
upon a hearing hearof this Court will grant the following relief:
14
(c) require Roger to purge himself of contempt by abiding by the
terms of this Court’s January 20, 2017 Order;
(d) require Roger to purge himself of contempt by abiding by all of
the terms of the provisions of the Judgment of Divorce and Martial
Dissolution Agreement;
(e) require Roger to purge himself of contempt by paying Michele
the $25,000 owed to her according to the terms of the Marital
Dissolution Agreement;
(f) require Roger to purge himself of contempt by paying Michele
her share of recovery from the BP claim;
(g) require Roger to purge himself of contempt by paying Michele
his 65% of the minor children’s medical, doctor, hospital, optical,
counseling, dental, opthalmic, orthodontic, psychological, psychiatric,
vision and prescription drug expenses which are not reimbursed by
insurance.
....
(i) and for such other relief as which she may be entitled.
(Emphasis added.)
¶36. Civil contempt actions seek only to compel the contemnor to compliance with what
he or she was ordered to do. “In civil contempt cases, the contemnor can discharge the
contempt by ‘paying the costs and expenses and doing what he had previously refused to do.’
. . . In other words, ‘he carries the keys of his prison in his own pocket.’” Common Cause
of Miss. v. Smith, 548 So. 2d 412, 415 (Miss. 1989). This principle was reinforced in Purvis,
in which this Court held,
If the primary purpose is to enforce the rights of private party litigants, or to
enforce compliance with a court order, the contempt is civil. One may be jailed
or fined for civil contempt[;] however, the contemnor must be relieved of the
penalty when he performs the required act.
15
Purvis, 657 So. 2d at 796-97.
¶37. For indirect criminal contempt, we require notice of the charges, a statement of the
specific conduct alleged to be contemptuous, and a hearing. Corr, 97 So. 3d at 1216; Moulds
v. Bradley, 791 So. 2d 220, 225 (Miss. 2001) (“Without notice of [constructive] criminal
contempt sanctions, [the accused’s] due process rights were violated.”);3 Purvis, 657 So. 2d
at 798 (“constructive contempt requires a specification of charges, notice and a hearing.”)
¶38. Further, the transcript plainly shows that the judgment for constructive criminal
contempt was the independent act of the trial court. Here, the chancellor’s own comments
at the contempt hearing reveal that his involvement was substantial. Upon finding Roger
Dale Latham in criminal contempt, the chancellor explicitly stated his reasoning for doing
so:
The Court: The Lathams have been litigating before this Court for quite
some time. They were divorced in February of 2016, and they
had a sizeable estate, but you see over here all people are the
same.
...
The Court: It’s very clear to this Court that Mr. Latham has demonstrated
a cavalier attitude towards the judgments of this Court, and
therefore, to the Court itself. It is without a doubt disconcerting
to this Court when someone just obviously and for no good
reason disobeys the judgment of this Court which has the force
of law.
(Emphasis added.)
3
In the federal system, the Fifth Circuit Court of Appeals also has held that, “[f]or
notice of criminal contempt to be valid, it should indicate the criminal nature of the
proceeding.” In re Rumaker, 646 F.2d 870, 873 (5th Cir. 1980).
16
¶39. Upon being asked for clarification by defense counsel, the Chancellor clarified his
reasoning for finding Roger in criminal contempt, as opposed to a lesser sentence:
[Defense]: If I may ask a question, Your Honor?
The Court: Yes, sir.
[Defense]: What I think I’m hearing you say is 72 hours in jail regardless?
No matter what?
The Court: Regardless. No – no get out of jail free card. He goes
immediately to the Rankin County jail for 72 hours. And if he
comes back here having violated this Court’s judgment again,
I’m not going to be so lenient with him. He’s going to spend ten
days in full and he’s probably going to get a good bit more.
[Defense]: Yes, sir.
The Court: I’m tired of this. There’s no need in it. It has been ridiculous
having to address all these issues which were so plainly stated
in the prior judgments of this Court.
(Emphasis added.)
¶40. In matters of constructive criminal contempt, a trial judge’s recusal is mandatory. As
this Court held in Corr, “[w]e conclude that the contempt proceedings were for constructive
[] criminal contempt, and, therefore, the chancellor was required to recuse himself from the
contempt proceedings and issue Rule 81 process giving [the accused] notice of the criminal
charges against them.” Corr, 97 So. 3d at 1216; see also In re McDonald, 98 So. 3d at 1045
(“[T]he chancellor was required to recuse himself and to issue [Rule 81] summonses to the
[d]efendants giving them notice of the criminal contempt charges against them.”).
¶41. For these reasons, I respectfully dissent.
KING, J., JOINS THIS OPINION.
17