742 S.E.2d 68
W. Va.2013Background
- Frieda Q., a frail elderly protected person, was under guardianship/conservatorship; Cordelia Q. was ordered to account for Frieda’s assets and turn over property.
- On June 2, 2008, Cordelia was ordered to account for $51,413.50 from Frieda’s stock sale and to surrender Frieda’s property; only $10,000 was turned over.
- Mental hygiene commissioner found Cordelia in contempt orally in 2008 but did not reduce to writing until 2010; Rule 16.10(d) timelines were not timely met.
- Circuit court entered a nunc pro tunc order to October 28, 2008, imposing a $50 per day civil contempt penalty retroactively.
- The circuit court later (Aug. 15, 2011) reduced sanctions to a sum certain, awarding $47,800 with interest; Frieda died on June 11, 2011.
- Petitioner appealed, challenging jurisdiction, nunc pro tunc validity, contempt findings, the nature of sanctions, and right to a jury trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 16.10(d) time limits affect circuit court jurisdiction | Cordelia argues delays divest jurisdiction | Circuit court argues time limits are administrative, not jurisdictional | Time limits administrative; jurisdiction preserved |
| Effect of nunc pro tunc order | Nunc pro tunc rewrites history and harms Cordelia | Order reflects contemnor’s contempt timing | Nunc pro tunc order improper; contempt deemed charged on Aug 25, 2010 |
| Whether Cordelia was properly found in contempt and sanctions lawful | Cordelia failed to comply with June 2, 2008 order | Disposition of assets and funds justified sanctions | Contempt affirmed; retroactive portion punitive, some periods upheld as civil |
| Nature of the contempt sanctions (civil vs. criminal) | Sanction is civil and compensatory | Penalty has punitive elements; retroactive portion criminal-like | Penalties retroactive portion punitive; prospective per diem civil from Aug 25, 2010; compensation/damages invalid as basis for award |
| Right to jury trial | Cordelia entitled to jury under WV Code § 61-5-26 | Contempt fell under statute allowing summary proceeding | No jury trial required for civil contempt; Cordelia not entitled under § 61-5-26(d)сын |
Key Cases Cited
- State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W. Va. 622 (1992) (civil per diem sanctions must be prospective to be valid)
- Robinson v. Michael, 276 S.E.2d 812 (1981) (distinguishes civil vs. criminal contempt; damages must be remedial)
- Vincent v. Preiser, 338 S.E.2d 398 (1986) (per diem fines; punitive vs remedial distinctions)
- Arnold v. Conley, 153 S.E.2d 681 (1966) (summary punishment limits; jury trial considerations)
- Hendershot v. Hendershot, 263 S.E.2d 90 (1980) (due process in criminal contempt; jury rights safeguards)
- Palumbo v. County Court of Kanawha County, 150 S.E.2d 887 (1966) (nunc pro tunc limitations; cannot rewrite rights of parties)
- Wolfe v. Welton, 558 S.E.2d 363 (2002) (administrative time frames for appeals; not jurisdictional in guardianship context)