*1 KEITH, Dan IVY v. The Honorable Tom J.
02-283
Supreme delivered December Opinion *3 for and Susan Norwood Lusby, petitioner. Doug No response. Dan L. Petitioner Ivy peti- Brown, Justice. for writ of certiorarithat tions this court respondent, Robert Keith, circuit exceeded his
Honorable Tom has authority judge, J. for thirty-six days in sentencing alternative, Mr. Keith’s order that In the Judge court.1 appeals he serve this sentence contempt. respondent, Judge Keith, after he failed to found the in of court petitioner tried in connection with a civil case Rule 11 sanctions to thirty-six days court. Keith sentenced jail. Judge $1,000 a month to He also ordered a schedule orally payment from March after release On jail. begin sixty days motion fоr Keith’s order and court stayed Judge granted that the Keith has requested Attorney expedited appeal. are, therefore, limited in *4 file a brief on his behalf. We General not the review to Mr. brief in petition. our Ivy’s support to are taken from The facts the Rule sanctions leading up 2, 2001, March Keith’s Order for Rule 11 Sanctions. On Judge filed a civil lawsuit on behalf of Otis Mr. Ivy Jerry damages car Otis and Helen R. Walton. In from a accident between arising on the basis Mr. damages Ivy prayed punitive complaint, intoxicated at the time of the accident and that Mrs. Walton was her Bentonville Police the Department “knowingly protected rep- 16, 2001, Keith utation.” On November granted partial Judge Í, Circuit Court—Div. Arkansas, Mr. brief shows “State Benton County Ivy’s Lee” conclude that Hon. Benton Sheriff as We Tom County Andy respondents. J. for a certiorari as of this is the more Keith, case, shown on record appropriate party petition. of Mrs. favor Walton dam-
summary judgment punitive issue, that there was “not a ages even scintilla of evidence” finding made on behalf of supporting Ivy’s Otis. allegations Otis, refused to retract his claim on behalf of how- Ivy ever, Keith, to subsequently, according Judge “compounded the seriousness of the violation by restating allega- [Rule 11] tion in an amended and various other filed cоmplaint pleadings the Court.” On December Keith found that Judge on behalf of Otis Ivy’s allegations “were not made good faith, but rather were and, for an imposed improper purpose” thus, violated Rule 11 of the Arkansas Rules Civil Procedure. $12,085.27 Keith’s order for Judge Rule sanctions a imposed fine on Mr. which Ivy amount coun- corresponded opposing to sel’s fees and costs. The was attorneys’ sanction to be within paid The Rule thirty 11 order also “The days. stated: failure to pay sanction within 30 of the days of this Order shall entry constitute of court.” 25, 2002,
On a January on the during Otis pretrial hearing case, Mr. told Keith that he Ivy had been served with Judge order for Rule 11 sanctions. Mr. Ivy about questioned judge whether the threat was standard in his court. practice order, “That’s—that’s the Court’s replied, Mr. Ivy.” whether, then asked if he sanction, unable pay should he submit himself to to go jail. Judge “If responded, —(cid:127) want if you want admit you of Court and go that’s jail, you.” up 11, 2002,
On in an February effort to settle with Mrs. Wal- ton, Mr. sent letter Mrs. Walton’s counsel and offered to month, Rule 11 sanctions at rate of $500.00 per begin- on March ning 2002. The next Mrs. counsel Walton’s day, alerted Keith that Mr. had made no on his payments fine and offer, of Mr. settlement which counsel maintained he had no because it violate the power would accept Judge’s order. *5 20, 2002,
On issued summоns February Keith a Judge 7, 2002, Mr. to in court on March and Ivy show cause appear why Rule judge’s he not be held in violating should 11 order. conducted March Judge
On he Mr. Keith that reason at which time told hearing, have he did not enough order was had not with complied if 11 sanctions. The asked Mr. Ivy to the Rule money pay his claim of inability he evidence in pay. had any support to tell the was under oath as an attorney that he Mr. Ivy replied truth, he stated then a of financial and related litany problems: divorce, $300,000 a that to the as the result of he owed IRS a him he all assets to satisfy against had lost of his office judgment auction, and he them at that his mother hаd and bought Mr. no assets personal owned beyond clothing possessions. had times that he been ordered recounted previous that he had and reminded the court other side money those Mr. related that his fines on occasions. always paid he uneven cash flow was such that had an nature of practice to the next. from one day then occurred:
The following colloquy Ivy: $500 me be difficult for to come up It would couldn’t, $20,000 I have in fact I but tomorrow could today, I I have a vow of when became poverty ... taken my pocket. — minister hear I with that old I don’t want to that. agree The Court: the last who become refuge sagе says religion patriotism hear This is a civil court- And I don’t want to that. scoundrels. want hear that. room I don’t Ivy: I wish object, your Then Honor. Well, I if you object. The Court: don’t care Ivy: And I wish proffer. — — I You’re what your religious I don’t care. Court: are business but it’s not part or leanings your practices proceeding. Ivy: courtroom, Your your Then God has no place
Honor? *6 are, What Mr. do not your religious Ivy, practices The Court: Now, continue, have in this but any proceeding. you may part — — but I don’t want what do is you your religious practice business, it’s not a proceeding. your part —(cid:127) Ivy: Honor, Your if Mr. —
The Court: Did I understand that that you say you agree for Court to take at this timе appropriate step you? incarcerate Ivy: Honor, Your Your Honor. no alternative to yes, see
Mr. I — side, I it. have I have no toway the Court. The other — richest woman in the world has the money — I don’t want I don’t want in that you engaging The Court: kind of in this court. I’m sick language and tired of you using Hood, this inflammatory You’re no no language. you’re Robin — Friar Tuck and I don’t want to I don’t want you playing role this courtroom. Ivy: Honor, Your I consider myself to a Robin Hood. Well, you’re no Robin Hood you’re certainly Court:
no Friar Tuck. else wish to Anything you say? Ivy: . . . Your honor has the me in right put time, course, years whatever five if want to. you Of at that point — in, some certain kiсk rights become criminal. might might — But when an attorney tries stand up justice truth and That doesn’t have do to with this. We’ve anything The Court: addressed that issue. The already Court has found that all already — these made you’ve were were allegations without founda- tion, frivolous, were without If merit. want to take that you up — but that appeal is closed. argument Ivy: assume, It’s not closed new evidence I Your pending Honor. — — It’s closed until until until some court higher The Court: that, it’s I’ve
says not closed. ruled on we’re not already going revisit it. Ivy: the Court will of I am to submit myself prepared I without the funds to pay to do. am they for whatever wish *7 — I all a can person say. that that’s guess charge know, around this me to stand here look it is difficult for
You — well, the reno- that this courtroom when I realize courtroom I mean was for Mrs. Walton. paid by that the courthouse vations $600,000. — (sic) I am remand Mr. I’m Ivy, going
The Court: Mr. . . the issues. . addressing You better start you. or can sit down but I don’t can the issue you
Now address you like you all this Hood stuff want to hear this stuff— Robin That’s the issue. preach. Ivy: Yes, is I am without funds Your Honor. issue it, it. I have (sic) I do not no to raise way attempted have pay — negotiate offer of evidence to in any support The Court: Have you got your position? Ivy: No, sir, Honor. Your recess, Keith his from the a brief issued
After ruling bench: . . . finds that have will- you Ivy]
The Court: The court [Mr. the That following: the Court’s order and orders disobeyed fully of in the Benton for a County period will be incarcerated you Jail owe, 12,000 balance, the you you 36 and that the what days $1,000 at month the Court has ordered the rate of per to the 60 after release. You’ll be remanded days your beginning of sheriff. custody Order,
On that same day, Judge signed County Jail in There was no reference to thirty-six jail. sentencing Ivy days $12,085.27 11 Rule Order to of County payment Jail 2002, 13, of sanctions. March filed his notice On appeal 2002, from Order. On March Ivy peti- County Jail the trial for a of on the basis that tioned this court writ certiorari him to court had exceeded its authority sentencing moved ordеr. The motion to stay Keith’s stay Judge 25, 2002, court March and the granted by matter was expedited.
I. Due Process The first basis Mr. certiorari is an asserted petition of law, violation to due right as afforded under the process Arkansas and United States Constitutions.
A
writ
certiorariis
when the
face
appropriate
record shows that no other
is available to
remedy
correct plain,
manifest, and
abuse of discretion
trial
gross
judge. E.g.,
343 Ark.
Johnson,
S.W.3d
See also
(2000).
Johnson
Arkansas
Zimmerman,
Democrat-Gazette v.
*8
301
S.W.3d
Certiorari
(2000).
are
the
proceedings
governed by
normal
rules unless the normal
appellate
review
appellate
prоcess
useless,
would be
such as when the contemnor has to remain in
the
of
course
the
jail during
See
at
Ark.
195-
appeal.
Johnson,
196,
In order claims, to evaluate Mr. due it is process initially what action Mr. necessary identify was deemed precisely by to be and what of contemptuous type contempt Judge invoked.
The Arkansas Constitution addresses the of contempt power the courts and the of the General con- power Assembly regulate not committed in the front of tempts judge: 26. Punishment of indirect law. contempt provided by
§ to regulate pun- have power shall Assembly
The General or hearing in the presence committed contempts of ishment courts, of process. or in disobedience of the Const, art. 7 26. Ark. § and of the courts power then sets out
State law com- contempts exception penalties, appropriate of thе court: immediate view in the presence mitted as for to punish, record shall have power court of (a) Every acts, no of the following guilty contempt, persons criminal others: behavior commit- or insolent
(1) Disorderly, contemptuous, view and in-its immediate presence, the court’s sitting ted during or to its impair to interrupt proceedings and directly tending authority; due to its respect noise, directly or disturbance of the
(2) peace, breach Any its tending interrupt proceedings; lawfully or order any (3) process Willful disobedience it; or made by issued offered, Resistance, to the lawful by any person (4) willfully court; and or of the order prоcess refusal of any person and unlawful The contumacious (5) sworn, and, refusal to so a similar as a witness when be sworn interrogatory. any legal proper answer or fine may impris- (b)(1) Punishments the court bemay sitting, where county in the onment However, shall both, the fines of the court. in the discretion or *9 ($50.00) nor the impris- the sum of dollars fifty in no case exceed (10) days. onment ten their until have always power imprison Courts shall
(2) adjournment. non- for the is committed (b)(3) any prison When person fine, at the expiration he shall be discharged of such any
payment (30) thirty days. of immediate view and pres- in the committed (c) Contempts cases, In other summarily. bemay punishеd
ence of court have accusation and shall be notified of the shall charged the party time to make his defense. a reasonable committed for a contempt (1) any Whenever (d) person section, the substance of of this under the offense provisions of commitment. in the order or warrant be set forth shall
279 Ark. Code Ann. 16-10-108 1999). (Repl. §
Our
and
it
constitution
caselaw make
clear that the
courts of this state have
a
inherent
contemnor for
power
punish
committed in the
of the court or in disobedi
contempts
presence
7,
ence of
Ark.
art.
Const.
26. See also
v.
process.
§
Johnson John
son,
Burnett,
477,
Carle v.
311 Ark.
845
supra;
S.W.2d 7 (1993);
211,
v.
295 Ark.
748
Yarbrough Yarbrough,
S.W.2d 123 (1988).
This inherеnt
power goes beyond
statutory authority provided
16-10-108. There is
no
that willful disobedience of
question
§
a valid order of a court is
behavior. Ark. Code
contemptuous
Ann.
16-10-108 (a)(3)
See also Hilton
v.
1999).
(Repl.
Hilltop
§
Riviere,
532, 534,
596,
268 Ark.
597 S.W.2d
597
(“Diso
(1980)
order,
bedience of
valid
or decree of a
any
judgment,
court having
to enter it
jurisdiction
constitute
may
Henderson v.
contempt.”);
697, 710,
264 Ark.
574 S.W.2d
Dudley,
666 (1978) (“[T]he
disobedience of
valid
order or decree
any
of
court
judgment,
to enter it is
having jurisdiction
such
interference with the
administration of
as to constitute
Before
justice
contempt.”).
order,
can be
held
a court
person
contempt
violating
terms,
order
must
definite in its
clеar
toas what duties it
Earl,
in its
imposes,
commands.
express
E.g., Lilly
103,
We have observed in the a matter past between the and the and not between the litigant, two Williams, See Hickinbothamv. opposing litigants. Ark. S.W.2d 841 Cooter& (1957). Gell v. Hartmarx 496 U.S. Corp., Cf. sanctions, (1990) Rule 11 (noting contempt, award fees are all actions from attorneys’ the under separate apart and that all three lying proceeding actions concern integrity the court and judicial the merits of process, underlying claim).
We next examine what is involved. category b. Criminal and Civil Contempt is divided into criminal and civil
Contempt
at
Johnson,
Ark.
197, the Civil other pro- at 499. contempt, 33 S.W.3d with by compliance tects the of compelling rights private parties Id. of the made for the benefit private parties. of court orders and criminal the line between civil has noted that This court often has Id. Our Court blur at times. Appeals given may and criminal between civil a of the difference concise description 113, 116, State, 690 v. See App. Baggett contempt. 362, while (1985) (“[Criminal punishes S.W.2d 364 in coerces.” original)). civil contempt (emphasis a a In whether action by judge determining particular the charac the focus is on criminal or civil cоntempt, constitutes of the ter rather than the nature Fitzhugh of relief proceeding. 275, 137, 138, State, 276 Because Ark. 752 S.W.2d (1988). 296 the with court’s is to coerce compliance civil contempt designed order, free or civil himself herself by comply the contemnor may 139, This the Id. 752 at 276. the order. See at S.W.2d ing that civil contemnors “carry keys source of familiar saying S.W.2d at their own Id. at of their pockets.” prison S.E.C., 585, 593 330 U.S. (1947) Co. v. (quoting Penfield Nevitt, Criminal 1902)). re 117 F. Cir. (8th In (quoting contrast, and the carries unconditional penalty, contempt, 296 Ark. at cannot be purged. Fitzhugh, S.W.2d at 276-277. case, ruled the bench
In the instant from fixed term of days jail, that Mr. was to serve a thirty-six $1,000 to start after sixty days month followed by рayment per to the only term ended. The Order referred County jail Jail order, terms could to serve. By thirty-six days the Rule 11 sanc not himself of sentence jail by paying purge as sentence was intended We conclude tions. pun Flence, ishment, as Mr. Ivy clearly an inducement pay. held in criminal contempt.
c. and Indirect Contempt Direct and the
Both the Arkansas Constitution
governing
See
direct and indirect contempt.
state statute
between
distinguish
*11
281
Const.,
7,
26;
art.
Ark.
Ark.
Ann.
Code
16-10-108 (Repl.
§
§
DuFresne,
583,
See
1999).
alsoAllison v.
340 Ark.
In a recent
court
a trial
upheld
judge’s finding
two
were
direct
in
criminal
prosecutors
when
did
contempt
they
with a
order and
comply
to trial on the
scheduling
proceed
trial date. See
Johnson,
The issue was one proceeding trial which the prosecutors refused do in direct contravention of the judge’s scheduling order. This occurred in front of and under our statutes judge and under the inherent judge’s authority punishment could be summarily meted out. at
Johnson,
Ark.
central that he was held indirect criminal assumption Keith. to Mr. because he was held in by Judge According Ivy, due than direct contempt, rights, indirect rather process a reasonable have his such as the right guilt proven beyond attached, counsel, doubt, to trial the right by jury, right the trial violated those rights. *12 Keith held Mr. in indirect Ivy that We agree Judge case, the When that is the a order. for prior willfully disobeying mentioned, contemnor, to of the аccusa- entitled notice as is just to a defense. Ark. Code Ann. a reasonable time make tion and due did little to invoke his 1999). Mr. 16-10-108(c) Ivy (Repl. § determine, best can he the trial court. As we before process rights “Your honor has the made statement: following right merely time, want whatever five if to. Of to me in years you put in, course, kick that certain at rights might might point —some . . .” become criminal. however, due he raises
On
process
specific
appeal,
first
the burden of
shifting
proof, right
deprivations
time—
counsel,
these
to a
trial. We decline to address
jury
right
issue,
it is
that
even a con
because
an
elementary
specific points,
issue,
bе
before
trial court.
stitutional
must first
raised
E.g.,
458,
Here,
State,
that
Ark.
' under (c) (1) 16-10-108 statutory rights § accusation, and time to make a notice of the reasonable (2) an He are a matter. Mr. knew of defense different Ivy attorney. as as the Rule 11 order on early contempt contingency Janu 8, He Keith about con 2002. then ary Judge possible questioned 25, 2002. He was then served with notice of on January tempt order, was mailed on with the Rule 11 which noncompliance for a 2002. He next received Order of Summons February related to Rule show-cause failure hearing comply order, show-cause filed on 2002. The which was February 2002. was then took March Clearly, hearing place time to of the accusation and reasonable afforded notice ample Moreover, Keith that he never make a defense. argued Judge he was of notice shortness or time prejudiced prepare. We hold that was not of his deprived statutory protections.
II. SubstantialEvidence For his next that there insuffi- argument, Ivy argues cient evidence that his of the Rule presented show nonpаyment that, 11 sanction was “willful He disobedience.” to the argues the record he tried indicates that to resolve his financial contrary, dilemma at a rate $500 reduced a month. He by offering that also he maintains advised the that he could pay. asserts concluded he simply willfully the Rule order without sufficient disobeyed evidence to sup- He also claims that the port finding. record the fact supports *13 that the he real reason was found in had to do with the contempt merits of the case. he “the underlying contends: trial Specifically, frustrated the with Petitioner judge evidently because of the had behavior which the trial court’s decision triggered to original However, a sanction. the of this impose purpose contempt pro- determine was to whether the ceeding Petitioner had willfully — failed to the with sanction inexcusably order not to comply review the reasons for the sanction in the first imposing place.” mind, course,
What was in Keith’s of is Judge specula however, tion on Mr. is correct that criminal part. Ivy, is not as a for Rule appropriate 11. penalty violating Indeed, our research has the disclosed use of civil only See, to coerce of Rule 11 sanctions. v. Taconic payment Verone e.g., Tel. F. 632 N.Y. v. (N.D. Cannon Corp., Supp. 1993); Loyolа 676 F. Chicago, (E.D. Ill. The rule University Supp. 1987). of itself lists as reasonable “appropriate expenses sanction[s]” incurred the fees. Ark. by litigation, including See R. attorney’s Civ. P. 11. the trial should not be allowed to do Manifestly, the with criminal what he could not indirectly contempt power do under Rule 11. hold that We Keith directly Judge plainly, abused discretion in his criminal con manifestly, grossly using as a for failure to Rule 11 tempt sanctions. penalty pay jailed being also raises party
Mr. Ivy specter a debt. The imprisoning to practice for inability essentially pay See Act of 1869. the Debtor’s debts was abolished by people “Debtor’s Ed. 1999) (defining 412 (7th Law Dictionary Black’s “No Moreover, own constitution our provides: Act of 1869”). action, or mense civil for debt in any shall imprisoned person art. 16. fraud.” Ark. Const. in cases of final unless or § process, context, that “lack of said, the civil has This court defense enforcing payment is a against ability pay complete Griffith, the defendant by from imprisonment.” Griffith court further 487, 490, 340 (1955). Ark. 283 S.W.2d Griffith defendant court punish said: “[t)he empowered that he where it shall willful obstinancy appear imprisonment decree, it with the but the means with which comply had not the that he has him where he shows should imprison in such ill the decree and is ability comply pecuniary to do so.” Id. at that he cannot eаrn enough money health 342. 283 S.W.2d at mind, con- we are this fundamental
Bearing principle however, in court on vinced, received his day As criminal albeit for comtempt. defense inability pay, notice of show- he had noted in this ample already opinion, Yet, armed with his came to the only he hearing cause hearing. at that 11 sanctions that he could not Rule contention clear that Ivy every opportunity time. It is gave 7, 2002, March of the on evidence. At start hearing put — are have evidence “Do any the trial court asked Ivy: you *14 Mr. in of to offer evidence your position?” support you prepared “under answer in which he stated pen- with a Ivy long responded tell the has an to an obligation of attorney alty perjury, [because] for clothes and a he had no assets truth in court” that (1) except $300,000; (3) he owes the IRS about few (2) personal possessions; offered, he (4) beginning he had considered filing bankruptcy; month, a which he said $500 at March to off sanction pay $30,000 $20,000 afford; in his could have he could that-he (5) is; income his mother (6) because of the tomorrow way pocket on a at a execution all his office assets sale following purchased for is the remedy that he understood (7) jail proper judgment; that he had (8) made court ordered nonpаyment; previously pay- amounts; for he had of ments smaller that taken a vow (9) poverty a when he became minister. the course of the the trial continued
During hearing, judge evidence from Mr. else wish to request Ivy: “Anything you “ “Now, can the issue. say?” address . . . before jnd you Just decision, make his the trial to' asked Mr. a adjourning judge Ivy final time: “Have evidence to offer in of you got any your support this, “No, sir, To answered position?” Your Ivy simply, Honor.” to Mr. have should made
According Ivy, Judge Yet, whether into he was indeed we see indi inquiries indigent. as a defense to and one gency that should have been contempt mounted Mr. as of his effort to show cause he by рart why should not be held in It was Mr. and contempt. Ivy’s obligation evidence of his responsibility present dire financial allegedly condition on March 2002. He failed to do so. Furthermore, Keith, fact-finder, as was sitting still entitled short, of this judge credibility witness. In as the trial was he not believe judge, bare assertion required Ivy’s Gatlin, that he could not See Gatlin pay.
S.W.2d 761 that trial (1991) a (holding not required believe a contemnor’s she was without funds to testimony pay debt, IRS upholding finding contempt.)
Nevertheless, in criminal finding manifest, the Rule 11 sanctions constituted a paying plain, discretion, we abuse gross writ certiorari. grant void .We the sentence of and remand days thirty-six matter for further which include proceedings, may proceedings civil if deemed the trial court this case. appropriate We direct should the trial wish to court civil pursue for failure to against the Rule 11 that a sanctions new notice and reasonable time to make defense be afforded him blush, under Ark. Ann Code At it 16-10-108(c). first would § that there is little to be from still another appear gained holding show-cause on Mr. financial status in connection hearing token, with civil the same we can conceive of how contempt. By *15 of what of contempt Ivy might facing clear notice type and the the sanctions the circumstances not under paying would bе finding contempt sentence following potential defense Of to him in his of inability pay. fashioning important sanctions, course, is unable to if Mr. indeed Ivy pay placing would as civil to coerce him to part him in pay we criminal Because grant him in holding contempt. equate certiorari, identical address Mr. Ivy’s the writ of it is unnecessary aas direct appeal.2 arguments for
Petition writ of certiorarigranted.
Remanded. not C.J., participating.
Arnold,
in
in
concurring
dissenting
JJ.,
part
Glaze
Imber,
part.
in
in
dissenting
Justice, concurring
part
Glaze,
I
discretion in
that
abused his
part.
agree
Judge
Tom
for Mr.
failure
criminal
as
pay
using
penalty
fees and
11 sanctions.
Ms. Helen Walton’s
costs as Rule
attorney’s
However, the
is
in
court
simрly wrong
concluding
majority
received
in court on his defense of
inability
“Mr.
Ivy
day
an
did have
abbreviated
hearing
sanctions].”
[the
but,
criminal
as
in the
acknowledged
majority opinion,
contempt,
erred in
because criminal
this
respect
enforce Rule
sanctions.
available remedy
then directs
be remanded
that this case
majority opinion
If
include
further
which
civil
may
contempt.
proceedings
ended at this
this
point, by remanding
majority opinion merely
for further
I could
agree
case
proceedings,
part
too,
be in
with this
court’s
since it would
accord
court’s
ruling,
words,
this court
law. In other
because
agrees
long-established
to the
in
and dissent
it
from the
In
concurrence
is undisputed
response
part
part,
that at the time of
had not
Rule 11 sanctions
violation of
record
appeal,
paid
Judge
Under
it is
Keith to
Judge
circumstances,
Keith’s order.
these
proceed
proper
has
order for
should he
so. If Mr.
now
with a show-cause
civil
choose to do
contempt,
he
not,
he can so
Keith. If
he
cause
should
sanctions,
advise
must show
why
paid
held in
not be
contempt.
*16
erred,
is to
commonlaw
the
the
rule
remand
that
circuit judge
general
and
a
unless the case has been
litigated
cases
new trial
fully
Ark.
However, the when it I seriously disagree majority that the trial to serve Mr. with new decides it is court’s Ivy duty notice, make a under Ark. him a reasonable time to defense giving state- Ann. In this 1999). Code 16-10-108(c) making (Repl. § ment, at the the with Ms. Helen Walton’s majority agrees position that, filed a “Notice of Non- after she prior contempt hearing her, had failed to reimburse Ms. Compliance,” alleging Ivy short, had In Walton no further or burden in this matter. the duty that, it a civil is submits on remand for majority hearing, reasona- the trial court’s to “notice” Mr. him Ivy, giving obligation ble time to a defense. prepare
First, it
file
is all too clear that Ms. Walton
not
merely
may
be in civil con-
(notice motion),
or
pleading
alleging
he has
reimburse
failed to
her
fees
attorney’s
tempt
claiming
costs
then
her later to
without
present
sup-
requiring
proof
Ms.
her
it is
that Wal-
claims. Stated
elementary
port
differently,
so,
ton must offer
of Mr.
failure
after
doing
pay;
proof
must then show his
inability
pay.
Williams,
court cites the case of Hickinbothamv.
majority
Ark.
for the
Of in this no third or other are parties litigants Instead, involved. it is Ms. Walton who only charged had not reimbursed hеr fees and costs as attorney’s previously ordered, and it is her initial burden to In a prove charge. *17 here, for indirect like the one it proceeding is not contempt, for the trial to initiate his own proper or act judge investigation, on the that a has violated a presumption court order party (Ivy) and then to show cause he notify should party appear why not held in civil To condone such a contempt. procedure would be short of nothing adopting inquisitorial system trial, whereby conducts the judge determines what questions ask, and defines the and the extent of the That is scope inquiry. not our system.1
Because this case is civil in nature and the action is
brought
assure Ms.
reimbursed,
Walton’s
and
fees
costs are
attorney’s
she
has the burden
clearly
to show that she has not been
Once
paid.
Ms. Walton offers this
and is
to cross
proof
subject
examination on
issue,
this
must show his
Ivy
inability
pay.
proof
in a civil action for
is a
required
of the
preponderance
Eberhard,
336,
evidence. See
309 Ark.
Henry
S.W.2d 467
(1992); Dennisonv.
For the above I concur in and dissent in part part. Imber, J., joins opinion.
Arnold, C.J., participating. *18 ARKANSAS SOIL and WATER CONSERVATION COMMISSION, BENTONVILLE, v. CITY of Appellant Centerton, Intervenor City
Appellee;
02-658
Supreme delivered December Opinion