Lathrop v. LathropLathrop v. Lathrop
- Reporters:
- ,
- Before:
- Judges Goldmann
GOLDMANN, S.J.A.D.
Defendant, by court-assigned counsel, appeals from a Chancery Division order entered by a county judge specially assigned to this case, sentencing her to an indefinite jail term for contemning the visitation provisions of a judgment nisi entered on March 23, 1956, suspending that sentence, and placing her on probation for a period of five years. Her probation was made subject to seven specific conditions, all relevant to the visitation rights. The order further provided that defendant‘s failure to comply with its terms would result in an immediate revocation of probation, with reinstatement of the sentence and defendant‘s commitment to jail forthwith. The Monmouth County Probation Department was to supervise the probation.
Plaintiff‘s judgment nisi awarded him certain rights of visitation with the three children of the marriage, custody being given to defendant. The sequence of events following upon the entry of that judgment is set out at length in our opinion in Lathrop v. Lathrop, 50 N.J. Super. 525 (App. Div. 1958). In June 1956 plaintiff moved to hold defendant in contempt for failure to allow him visitation. After a series of hearings the county judge (temporarily assigned to hear matrimonial matters in the vicinage) on October 11, 1956 found defendant guilty of civil contempt. Sentence was postponed pending investigation by the Monmouth County Probation Office. The parties appeared before the court on January 11, 1957, at which time the judge announced that he was imposing a 30-day jail term for contempt of court, but was vacating execution thereof and placing defendant on “modified probation” for two years.
When plaintiff subsequently again complained that his visitation rights were being denied him, the court directed an investigation by the probation department. Defendant refused to speak to the probation officer, with the eventual result that the county judge, on November 1, 1957, and after a full hearing, determined there had been a violation of the probation and ordered that defendant be imprisoned for 30 days. On appeal to this court we held that the order had been in the nature of a punishment for violation of probation rather than for contempt, and since the January 11, 1957 order had not specified the conditions of probation, defendant could not lawfully be punished therefor. We reversed the November 1, 1957 order and remanded the matter so that the trial judge might enter a proper order formally imposing sanctions for the civil contempt of which defendant had been found guilty, and take all steps appropriate for the enforcement of that order. We noted that in the circumstances the framing of an effective order called for a certain flexibility of approach by the trial judge, and we specifically stated that the court was free to proceed against defendant for any violation of the visitation provisions of the judgment nisi, past or future. The result was the order here under appeal, entered November 13, 1958.
Defense counsel first argues that a trial judge is without authority to place on probation a person who has been found guilty of contemning a court order, where sentence
We observe that defendant did not, on her prior appeal, challenge the trial court‘s right to impose probation after suspending sentence, nor did we in any way disapprove of probation in the circumstances. The attack then was upon the form of the January 11, 1957 order. We question defendant‘s right to raise the probation question now, but we shall nonetheless consider the matter on the merits.
Probation, as we said in our earlier opinion, has a common law basis. Adamo v. McCorkle, 13 N.J. 561, 563-564 (1953). In 1929 a comprehensive revision of our laws relating to suspension of sentence and probation was enacted. L. 1929, c. 156;
The question before us is whether punishment for a civil contempt, either generally or by a spouse for violation of the visitation provisions in a judgment nisi, comes within
It is our view that the statute, properly construed, confers upon courts vested with the power to punish for civil contempt the adjunctive sanction of probation in enforcement of orders punishing for such contempt. The punishment of a person for civil contempt, while separately classified in the law from proceedings for criminal contempt, naturally imports a highly penal sanction. An individual so punished may be committed and remain in close custody indefinitely if he stubbornly refuses to obey the order of the court, and where a fine is imposed (
In this view of the matter, it is not necessary for us to determine whether the exercise of the probation procedure in this case may also be supported on the basis of the reference in the statute to courts having jurisdiction over “juvenile or domestic relations cases.”
In our prior decision we stressed that the sentence to be imposed by the trial judge be fashioned to the peculiar exigencies of the case. 50 N.J. Super. at page 537. Although we suggested several alternatives that might be followed, we also pointed out that we were not attempting to limit the trial court in framing an effective order by a flexible approach.
Accordingly, we conclude that placing defendant on probation
Defendant next argues that the trial judge had no right to increase the probationary period from two to five years, and it is suggested that he did so merely to punish her for prosecuting her original appeal and obtaining a reversal. There is no merit to the point. What we did in reversing and remanding was to set aside the first imposition of probation on the ground that there was no valid order entered on the original adjudication of civil contempt. We directed that “a proper order should now be entered.” In short, we set aside in its entirety what the trial court did on January 11, 1957. The trial judge was to start afresh in punishing for the contempt of which defendant had been found guilty.
Defendant‘s third ground of appeal is that the trial judge failed to make formal findings of fact. The short answer to this is that there already has been an adjudication of contempt, and the prior appeal generally challenged the validity of that adjudication without any question being raised as to the absence of findings of fact. That issue was just as relevant to the disposition of the case then as it is now. Defendant not having raised the issue then, she should not be allowed to raise it now. R.R. 1:7-1(c). The order presently under appeal was entered upon a remand, which presupposed the existence of a valid adjudication. The issue as to findings of fact is therefore foreclosed.
Finally, the appeal challenges the jurisdiction of the trial judge, who is a County Court judge, to sentence defendant on November 13, 1958 on the adjudication of contempt made October 11, 1956. It is claimed that the jurisdiction of the county judge is limited to Mercer County, the county of his appointment, and he had no right to continue to sit in this case. The fact is, as we observed in our prior opinion, 50 N.J. Super. at page 532, that on October 17, 1957 the Chief Justice directed that in addition to his regular assignment the county judge was temporarily assigned to the Chancery Division “for the purpose of hearing and concluding any and all matters pertaining to the case of Lathrop v. Lathrop, Docket No. M-277-53.” (See State v. Pillo, 15 N.J. 99, 102 (1954), certiorari denied 348 U.S. 855, 75 S.Ct. 78, 99 L.Ed. 673 (1954), on the constitutional right of the Chief Justice to assign County Court judges to the Superior Court.) This was the law of the case, since the issue of jurisdiction was raised on the earlier appeal.
Although defendant acknowledges that the Chief Justice may make temporary assignments of county judges to the Superior Court for the trial of matters,
Affirmed.