State ex rel. Streit v. Streit

ROSSMAN, J.

Defendant appeals from an order finding him in contempt of court. Because the trial court specifically found that defendant’s actions were not wilful, we reverse.

On February 9, 1984, a restraining order was issued under the Abuse Prevention Act, ORS 107.700 etseq, prohibiting defendant from making contact with relator, his ex-wife. On February 29, after defendant had contacted his wife on two different occasions, he was arrested. On May 11, a show cause hearing was held to determine whether he should be found in contempt for violating the order. There was little or no dispute over the facts of the incidents. Defendant’s only defense was that he was very depressed and anxious about his overwhelming personal problems and that he did not remember contacting his former wife. Following the hearing, the trial judge stated that he could not say, in a legal sense, that defendant’s actions were wilful; however, he found defendant in contempt and sentenced him to 120 days in jail.

Defendant contends that he cannot legally have been in contempt of court unless his violation of the restraining order was wilful. We agree. The Supreme Court has stated that, in a contempt proceeding, there must be sufficient evidence to support a finding that the defendant’s violation of a court order was wilful or with bad intent. State ex rel Oregon State Bar v. Wright, 280 Or 713, 715, 573 P2d 294 (1977); accord State v. O’Malley, 248 Or 601, 605, 435 P2d 812 (1967), overruled on other grounds, 255 Or 544, 546, 469 P2d 36 (1970). Given the trial judge’s specific finding to the contrary, the order necessarily is in error.

Reversed.