*1 7 State, (1993); 417, Nichols v. 306 Ark. 815 382 S.W.2d fact, the In record reveals that trial counsel one of the offered about which now appellate instructions counsel complains. An examination the record has been made in accordance 4-3(h), with Ark. Ct. R. there and we have determined that Sup. rulings were no adverse to prejudicial that constituted error.
Affirmed. GRAY, Chancellor,
Henry HODGES v. Alice S. (First Division) Pulaski Chancery Court 94-1191 901 S.W.2d
Supreme Court of Arkansas Opinion delivered June [Rehearing July denied 1995.*] JJ„ participating. Roaf, *Brown and not *3 Rosenzweig, for appellant.
Jeff Gen., Bryant, Att’y by: Humphries, Tim Deputy Winston Gen., Att’y for appellee. H. an Appellant Henry Hodges, Dudley, Justice.
Robert times from four held in of court being attorney, appeals Alice dur- Chancellor for contumacious statements made Gray of a child case. ing custody Appellant Hodges rep- Skokos, Skokos, Pamela the former wife of Theodore resented bar, of the in an extended divorce and cus- also member child The record reflects a contest wills between tody clearly case. counsel and the chancellor. At one Ms. Skokos point, petitioned a writ of certiorari to Gray court for Chancellor disqualify from the case of her hearing prejudice. bias Skokos Gray, 318 Ark. S.W.2d
I. *4 Gray Chancellor moves for this court to dismiss appeal this judicata because of the of either res or law of the case. doctrines In of the states in our denial argument, she earlier support we of certiorari wrote: in allegations
Our consideration of Ms. Skokos’s
to her
will
from
petition for certiorari
us
response
preclude
them
should
be a
considering
there
later
again,
appeal.
Henderson
Church v.
Dist.
Improvement
Methodist
Sewer
142,
188,
(1987); Bertig
No.
294 Ark.
Our statement about the cer seeking consequences law, tiorari is a correct statement of but it is not applicable this decided by Hodges. The issue in Skokos appeal whether, a writ of v. bias and Gray prejudice, because of hearing direct the chancellor to refrain from certiorari should the Skokoses. custody involving Appellant divorce and case holding asked the chancellor to refrain from Hodges has never against him in of court of bias or contempt prejudice different, nei- him. both the the issues are Because parties ther doctrine and we decline to applies, appeal. dismiss
II. trial court Appellant Hodges’s assignment first is that the erred in in on each summarily him criminal holding contempt the four occasions because the evidence We was insufficient. affirm the on the holdings first two occasions contempt reverse and dismiss the holdings. second two
A.
for
Summary
committed in the
punishment
contempt
“presence
hearing”
of the court is an inherent
and is
power
reserved to the
specifically
courts
constitution. Yarbrough
211,
v.
(1988).
295 Ark.
Yarbrough,
B. The facts leading to each of the four up holdings of con- out in tempt set order sequence to address appellant Hodges’s that “the contempt findings against [him] legally insufficient.” Different of the had parts divorce case been tried over a of fifteen months. All period of the evidence on child *5 time, had custody presented, been but even after that long period had not been custody determined. finally the fifteen During months Ms. proceedings, attorneys, Skokos’s appellant Hodges Robinson, co-counsel Robert L. twice filed Chan- petitions asking cellor to of an Gray disqualify because bias and alleged preju- They
dice Ms. Skokos. the against aggressively pursued peti- tions, but the chancellor refused to the disqualify. Subsequently, August chancellor set 25 as the date for final on the arguments custody child issue. Each side was allotted ten to argue minutes custody the issue. 24, 1994, August
On the before the day arguments on cus- heard, were tody scheduled to be filed a com- appellant Hodges Chancellor with the plaint against Gray Arkansas Judicial Dis- The cipline Disability Commission. complaint alleged clerk, in an unrelated case Chancellor her ordered law who Gray was not to serve as a qualified judge, grant to a divorce special for another of clients. On Hodges’s day, that same filed a third motion on behalf of Ms. Skokos Chancellor requesting to this time Gray disqualify, because of the before the complaint discipline commission. 25th,
On the when the arguments were scheduled to begin, Robinson, co-counsel, Robert Hodges’s asked the chancellor to hear the third motion to recuse. She declined and ordered the attorneys to argue custody matter. Robinson on mak- insisted record, ing but chancellor told him that each repeatedly side was allowed ten only argue minutes matter custody and that he would be removed from the courtroom if he contin- ued to try matter. argue disqualification Robinson stated that at hearings involving other motions to prior disqualify, the chancellor had declined to rule on substantive motions until she had decided on the motions to recuse. The chancellor replied that this was for final hearing arguments on no new evi- custody, dence was to be and there no need decide the presented, recusal before question hearing closing arguments.
Perlesta A. Hollingsworth, one of the for Mr. attorneys Skokos, moved to withdraw for an his motion immediate ruling on permanent custody asked instead to the issue argue only custody. that there temporary Appellant Hodges responded had been no notice of a if hearing on and the temporary custody, chancellor “[got] into that issue need to into get [she would] issues, these other as well.” The chancellor instructed appellant statement, to let Mr. Hodges Hollingsworth finish his but appel- lant continued to motion. Mr. respond During Hodges’s he first stated that there had been a tem- response, no notice of *6 chancel- and renewed his that the hearing then porary The ruled hear the to chancellor disqualify. lor should motion final as arguments orig- would with the hearing that the proceed allowed would not be that inally Hodges scheduled then Hodges the motion to at that time. Mr. disqualify to present be heard if the could recessed until chancellor hearing asked to The chancellor denied the motion dismiss. motion. a again Mr. asked for on Hollingsworth hearing temporary stated, “Now, Hollingsworth is Mr. custody. Appellant Hodges changing now Court’s view as to whether we are to going arguments have final and close The custody this case period?” chancellor asked for appellant Hodges’s to response and he Hollingsworth’s that he request, replied wished pro- ceed closing with but arguments, again objected to her refusal to first hear the motion because a disqualification it was depar- ture her from in the policy past.
Finally, appellant’s argument on custody began as follows: court,
May it please Judge, this has been long case are now you final I hearing arguments, as under- it, stand on the custody issue.
I thought myself, how can I convince you coming Skokos, over here that Mrs. wife 27 years, ought not be her 13 parted from year daughter old and I am con- vinced that I can’t convince you you made up your mind previously.
I think you made up your mind when removed you this lady her 12 year old at daughter the time from her marital home Edgehill. on
The chancellor instructed Mr. that not the Hodges this was decisions, time to criticize the court’s but to summarize evi- dence in closing argument. Hodges’s
Mr. was: reply entitled, Honor,
I am Your respectfully you suggest I that am entitled to make my closing arguments. —
You have me given after 15 months in case on custody you given have me ten minutes to it summarize I minutes however so I am to use those and I think entitled Now, I going and am exactly what think choose. *7 added.) to (Emphasis continue. in summary Gray
At held appellant Chancellor point, fine. chancellor addition- $200.00 a The and amerced contempt and television the newspaper reporter noted the of ally presence camera, said, and can also waiting you “You have the media and minutes here is not but ten your have other remedies You appeal. asked, what “Is Hodges to for that.” Appellant be allocated going ten minutes?” just against my said counted you 1. legally that the facts are Hodges foregoing Appellant argues A summary of sub- holding contempt. insufficient to the support of holding that the contempt written order notes sequent to the Court’s direc- made “refused follow tions.” if it with the order
An act is
interferes
contemptuous
court’s
upon
of the
or reflects
the
court’s business
proceedings,
Burnett,
477,
(1993);
Ark.
2. with final “In Appellant proceeded stated: spite of what this Court has ruled think the real past clear,” issues very, very adding “there is no worse case than scenario for fifteen what months this court has allowed....” Next began he to address ought factors chancellor to consider in determining child The which custody. argument, immediately precedes second holding was as contempt, follows:
And the last is love and affection. Let’s talk thing Now, about the point. first Mr. moral Skokos’s fitness. where begin? does that That when he begins had sexual — relations in their marital in their home not marital home in but their marital bed. Now, Judge, to to you going listen me or are you —
going to Dollars,
THE COURT: That Fifty Mr. Hodges. The subsequent written order notes that the remark was made when court the “summoned the bailiff.” Appellant later Hodges it described as the court “visiting” with the bailiff. The transcript provides no additional information. An audio tape included the record the only adds fact that this occurrence took place very Viewing the quickly. evidence and all reason must, remark, able inferences as we the when taken in context of the entire argument, constitutes substantial evidence to sup the port holding contempt. Appellant Hodges’s argument, with inferences, all reasonable the was that chancellor was and biased had case, already made her mind the up about that she had allowed now, a worst case scenario to take place, sum she bailiff, moned the bailiff or visited with the she would even not listen to him. The statement was disrespectful tended to Thus, the impair due the respect court’s authority. it was contu See 16-10-108(a) 1994). macious. Ark. Code Ann. (Repl. §
3. summarily fined the chancellor Immediately after “Well, comment, responded, for the appellant foregoing appellant Billy with visiting like that you would the record show con summary the then held appellant bailiff.” Chancellor Gray time. and fined him for the third tempt statement, is well taken that Hodges’s argument Appellant statements, did not context of all the other even when taken in did not con- remark and derogatory constitute disrespectful Rather, it court. shows stitute a of an violation instruction reflect, accurately have record attempting appellant something for the that the chancellor said appeal, purpose Further, nothing there is entirely to the bailiff. That was proper. the bailiff” was “Billy anything to indicate that the reference to to whom the chan- identify other than an attempt person cellor spoke.
4. one Mr. The chancellor had fined Skokos’s previously during argument for “bullshit” an attorneys using word In had to use attorneys inappropriate language. ordered the not stated that the minor custody, Hodges his on interest, but still the attorney ad litem had a conflict of child’s ad attorney litem. disqualify Appellant chancellor refused that this refusal Ms. Skokos argued placed to the court Hodges *9 the in she was criticized attor- an impossible position Skokos-visitation, if Mr. but when ney ad litem did not give she child, he she to visit the refused to return the allowed Mr. Skokos custody. her and had full concluded child to claimed he Appellant that, result, “damned if she and damned as a Ms. Skokos was does chancellor, for fourth if she doesn’t.” At that the the time point, in for summary using held hearing, appellant contempt “that language.” written order states that the court had
The subsequent
“such as hell
inappropriate language
warned
not
use
well
argument is
taken
Hodges’s
and damned.” Again, appellant
holding
that
evidence
a
of con
support
there is no
substantial
585,
It
at
In we summary, hold that there was substantial evidence to the first support holdings two contempt, but there was no basis for the second two. at Accordingly, we point, reverse and dismiss the second two holdings contempt.
III.
that,
Appellant next
if
argues
even
there
sub
stantial
occurrences,
evidence of
on the
first two
he
had a right
official,
to criticize the
who is a
judge,
under
public
the First Amendment. In
of the
support
argument he cites New
Sullivan,
York
Times
(1964).
The and of history development contempt of interpretation pow do such a restrictive suggest not orderly rendered to enforce powerless ers that courts would be and would be members of bar by for misconduct sanctions and took fairness justice place. rendered to insure that powerless time, Rather, of are reasonable as contempt applied the powers Cornelius, on freedom of and manner restrictions speech. place, 806; Davis, F. Spencer Supp. at see also v. 473 U.S. 1968). (W.D. La.
IV.
though
next contends that even
the evi
Appellant
holdings
of
rever
contempt,
dence is sufficient on
first two
is
of lack
notice and opportunity
sal mandated because
of
made by
determination should be
another
defend and
court,
However,
in the trial
neither
was made
judge.
in a later
This court
either
motion.
during
custody hearing
time on
does not address
raised for
first
arguments
appeal.
if
Even
waived on
arguments
appeal
they
constitutional
277,
trial.
308 Ark.
824 S.W.2d
Winfrey,
not raised at
Stewart
Burnett,
(1992);
Ark.
BACKGROUND
case,
I believe thorough scrutiny
To
properly analyze
of the
critical.
Justice Kath-
background
by Special
As stated
v. Gray,
leen V.
in her dissent in Skokos
318 Ark.
Compton
(1994):
The in this indicate briefs case transcript *11 Gray that there is between Chancellor clearly acrimony fact, and the for Ms. Skokos. In Chancellor attorneys Gray has made comments on the evidence which indicate her with Ms. Skokos as well. She Ms. challenged displeasure Skokos’ Skokos that she credibility she advised Ms. felt Mr. Skokos “more conciliatory.” was She commented — that it that Ms. “wanted everything” Skokos appeared child, of the specifically, custody minor parties’ posses- home, of the sion marital It is not mentioned money. the Court that Mr. Skokos also wants by things. those same fact, cases, In in the of divorce are the majority these com- mon bones of contention and the reasons for litigation. They hardly were Chancellor revolutionary requests. Gray a duty has be “fair and to all in her impartial” litigants Court, and her commentary is . . . unnecessary.
The Chancellor on more than one occasion refused to allow attorneys for Ms. Skokos to make a record. She inter- during their and their rupted questions arguments. She rou- tinely reminded them of the time constraints being imposed the Court. by She in a engaged running commentary about their demeanor. She also testified from the bench during recusal hearing.
Id. at
The events of First, also. significant to the statements alleged contemptuous motion to to hear the third did the Chancellor refuse only not recuse, on her record to be made even refused to allow a she from the co-counsel and threatened to remove appellant’s refusal were based Those rulings courtroom for to make a record. asking time of the Court. constraints upon Second, on arguments was for final hearing although to counsel for Mr. Skokos the Chancellor then allowed custody, change to a argue on his lengthy hearing request have a rather time these constraints. temporary custody, despite Third, a denied received having the Chancellor implicitly her. When against questioned of the filed complaint copy runner, to her by the effect that he had a copy to sent a com- that was termed receiving something then admitted she Commission but it was not from the Judicial Ethics said plaint, had been did not know whether complaint and therefore she at filed or not. seems to be best. disingenuous, This Fourth, counsel then allowed Mr. Skokos’ the Chancellor argue on his hearing request to have another rather lengthy time constraints these custody. Presumably change temporary still applied. which began
If that the closing argument was at this point Majority Although led to the two findings contempt. first find- two concerning of the these has quoted portions I it the whole discussion. ings, helpful believe state Court, it this Judge,
MR. HODGES: May please final argu- has been a case and are now long you hearing ments, it, as I on the custody understand issue. you coming
I how can I convince thought myself, Skokos, here not over that Mrs. a wife 27 years, ought her I am daughter be from old con- parted year vinced that I convince have you you can’t made mind up your previously. think you your made mind when removed you up lady and that 12 old year at the time from daughter —
her marital — Sir, now,
THE COURT: if you — MR. HODGES: home Edgehill on *13 — THE COURT: want to direct comments toward the
Court’s action this to you case need do it somewhere else. Well, Honor, MR. HODGES: Your I my am making —
closing argument — THE COURT: And if to you want summarize — — MR. HODGES: I and think — THE COURT: If you want to summarize — MR. HODGES: lam to entitled do that. THE COURT: If you want to summarize your case Otherwise, then you do so. may are to have you going to or we are stop going to move on another to side. —
MR. I HODGES: am entitled to make — THE COURT: This is not forum your — MR. HODGES: my argument. closing — THE COURT: to about this complain how Court Now, has handled if rulings. you want to summarize your evidence and present your final then can you pre- we Otherwise, have to stop to going you it. sent another party. on to will move Honor, entitled, respect- Your I am MR. HODGES: closing my make I am entitled to you that fully suggest arguments. — case on months me after 15 have given
You it to summarize me ten minutes have you given custody however minutes entitled to use those I think I am Now, I am going I think and what exactly that is so choose. continue. —Now, I Hodges, Mr. are in contempt,
THE COURT: You $200.00 fine. assessed you being Honor, continue I am going Your MR. HODGES: —and — — a.m. 9:00 and it is due THE COURT: — — have you just MR. HODGES: — —Mr. I know THE COURT: — con- find me in have to you just MR. HODGES: tempt. all, Court is Hodges, Mr. First THE COURT: you apparently who you reporter have
aware follows is a camera. here now and there every day and who is *14 to have attempting are you is aware that The Court big cause some you that can you Court remove so this Now, that you asking what that is media blitz. for if to have you going do but is about to what Court are in here. you when respectful be — Honor, trying to be am MR. HODGES: Your — assessed just The Court has THE COURT: — — respectful MR. HODGES: $200.00 fine. assessed The Court has THE COURT: It has to be paid in the morning. o’clock It is due 9:00 down in the Clerk’s office. — Now, if have if you you your want to summarize —
evidence don’t you get your closing use time for arguments criticize this Court’s Mr. rulings, Hodges. You can and do that. That is not what the Court set appeal aside the time for.
I know how you feel about the rulings Court’s this Court does not have the time now to sit and lis- right have, ten to every Mr. complaint you Hodges. evidence, If you want to summarize the can do you that. You can present any closing as to why Court should award client. custody your
If you want to about the complain Court’s actions then you said filed you the Complaint. You have the media wait- ing and can you also You appeal. have other remedies but your ten minutes here is not going to be allocated for that.
MR. HODGES: Is what you said counted just against my ten minutes?
THE COURT: You may proceed. — MR. HODGES: it Is counted against my ten THE COURT: You may proceed, Mr. Hodges. — MR. HODGES: minutes?
In spite what this Court has ruled in the I think past the real issues in this case are clear. very, very
Judge Dudley wrote an article in were he estab- lished four crucial points about child that I think custody still apply today, Judge then Dudley, Chancellor Dudley, now Court Supreme Justice and he talked about Dudley four issues. . . .
And the last thing is love and affection. Let’s talk about the Now, first Mr. point. Skokos’ moral fitness. where does that That begin? when he had begins sexual relations — in their marital home not in their martial home but in their marital bed.
24 are you me or Now, listen to are you going Judge, —
going $50.00, and that Mr. Hodges, That is THE COURT: o’clock. in the 9:00 morning also due .is Well, the record I would like for MR. HODGES: —that show $50.00 A fine. THE COURT: — Billy with visiting you MR. HODGES: Bailiff. fine that is $50.00 so That is another
THE COURT: morning. in the o’clock $300.00 due at 9:00 a total of added.) (Emphasis You may proceed. DISCUSSION
LEGAL thor- very excellent and contains an The Majority Opinion However, in Arkansas. the law of contempt discussion of ough which and standards other recognize principles I believe it fails to anis Contempt finding. in reviewing contempt apply should not be exercised which should of the Court extraordinary power unavoidable. necessity plain where the cases except (1934). An State, S.W.2d 267 v. 188 Ark. 69 Freeman of justice affect administration taken which does not action 218, 772 S.W.2d Ark. Taylor, v. 299 is not Norton contemptuous. 316 In re Lit in the case States Court
The United Supreme alia, stated, tle, follows: (1972), inter as U.S. 553 made for the protection is not law of [T]he winds of public for the who be sensitive judges may fortitude, able be men of Judges supposed opinion. . . must be Trial Courts . climate. . . . hardy to thrive in a sensibilities to their offensives against confusing on guard . . . of justice. the administration with obstruction to (citations omitted). Id. at 555 State, Ark. the court Clark
Significantly, (1987), stated as follows: S.W.2d
25
must never be used to place
contempt power]
[The
vital
for and faith
public
above
law. The
judges
respect
will,
believe,
we
be enhanced by
in
institutions
judicial
we are able to
with
problems
the extent which
solve our
in
as
our
reserve.
patience
opposed
pique, holding
power
409-10,
at
Id.
An is not because of guilty contempt making An appropriate attorney is not objections exceptions. guilty contempt by pressing legitimate argument though even inad- in the actions taken equacies by Court are out. An pointed is not for attorney guilty contempt to clear attempting up doubts or as to the Court’s C.J.S. questions ruling. Contempt 25(b) (1963). §
Where a statement is susceptible to more than one con- struction, construction, have might given been an innocent any is contempt purged by disavowal as to contemptuous intent. State, supra. Freeman v. between the
Misunderstandings
Court and counsel are not
an
basis for a
appropriate
finding of
contempt. McCullough
Lessenberry,
Ark.
(1989);
I. The finding first evidently based on part the Chancellor’s that opinion the beginning Hodges’ of Mr. clos- ing statement ais criticism of her prior rather than rulings sum- marization of evidence part upon Chancellor’s feelings that he intended continue her criticizing rulings.
These made opening remarks before the Chancellor first Mr. interrupted Hodges, are merely prefatory remarks outlining of the case progress to that up day. Suffice it to say open- ing remarks in many cases follow the same format. seems to
Appellant be the Chancellor to requesting step back and think about this with issue an mind. at open Looking her past rulings, certainly not an unreasonable request. However, we will never know sure for where counsel was headed with these he prefatory remarks as was cut too off In quickly. con- no means remarks to this up point event the any out even if they point arguments They legitimate temptuous. alleged inadequacies. he meant when kept what
The then becomes appellant issue obvi- continue. The Chancellor the Court he intended to telling to continue going meant that he was felt that ously *17 her rulings. criticize previous the this. Given in the record to nothing support
There is argument, appel- him in this making constraints placed upon time to meant he wanted continue have that likely might lant as just to criticize not that he intended argument, on with his closing for will never know sure We rulings. the Chancellor’s previous intent. him and did not of his inquire specific as the Court cut off state- constitutes contempt. Appellant’s do not believe this to two during susceptible interpretations ments this process least where counsel on at This is true ambiguous. particularly he was in fact told the Court during two occasions this discussion Furthermore, State, supra. to be Freeman v. trying respectful. and the between counsel misunderstanding to be clear appears McCullough finding which will not support contempt. Court Adkisson, Lessenberry supra. v. Lessenberry, supra; Third, make an that was trying it seems clear counsel but closing arguments, on the content and argument scope The record before he could finish. cut off the Court repeatedly by refused to allow with where the Chancellor incidents replete This make a record. or Ms. Skokos’ counsel to objections allow address the question is one more. Counsel had a legal right a record thereon. of his and make propriety thqt Fourth, any which reflects there is the record nothing with the of justice untoward interference administration occurred. and no hearing reporters Even this was a closed though (about continued remarks were Chancellor’s “laymen” present, had media in the that being hallway suggestions appellant real her) indicate that the problem them there to criticize seem to criticism to real or was the Chancellor’s sensitivities perceived Courtroom. actions and statements rather than appellant’s her later finding appel- This is underscored sensitivity by lant was in as innocuous as his by making a statement client was damned if did if she didn’t and also she and damned the entire throughout Chancellor’s continued assertions course of these that both counsel for Ms. Skokos proceedings were her. trying goad reasons,
For all of these not contempt. this is
II. into Shortly the Chancellor summoned appellant’s argument, a bailiff and to him. When evidently began talking this, observed he asked the Chancellor if she were to lis- going ten to him. Such a question could not be possibly contemptuous Moreover, in and of itself. it was to make a record necessary as statement, to what was Had counsel not made this occurring. record would have been silent as to fact that the Chancellor was discussing with something might the bailiff. Counsel well very have wanted get this in the record ground as a for potential This appeal. seems to be not noncontemptuous, only because of *18 the reasons stated in the as to of counsel Majority Opinion right record, to make a but also because it is in and noncontemptuous of itself.
CONCLUSION An has attorney no to be to the right contemptuous Court incorrect, advised, because he is ill receiving or unfair or rulings An scheduling. attorney has no to be right to the contemptuous Court because the Court makes unfounded statements about him- self or his client. An attorney has no to be right contemptuous merely because a hearing is closed and nonjudicial personnel not present.
Nevertheless, a court must recognize difference between forceful under advocacy difficult circumstances and contemptu- ous behavior. A court must recognize that a record making neces- decision, sitates questioning and that is not contemptuous argu- ment. A court must rise above its own sensibilities and not act out of personal A pique anger. court should some give leeway to what is said in the heat of battle. A court should not make findings there contempt unless is an interference with the administration of justice. and in examining
When at the record as a whole looking case, the entire I feel that comments the context of appellant’s all of the should be reversed and dismissed. findings J., joins this dissent.
Corbin, REEVES, Danny Body Shop d/b/a Reeves Individually HINKLE, Individually
v. Michael
and d/b/a Hinkle Auto & ATV Sales
94-869
Supreme delivered June Opinion [Rehearing July denied 1995.*] *19 grant. Roaf, JJ., *Brown and would