Damron v. Damron

2019 Ark. App. 160, 574 S.W.3d 166
CourtCourt of Appeals of Arkansas
DecidedMarch 13, 2019
DocketNo. CV-18-587
StatusPublished

This text of 2019 Ark. App. 160 (Damron v. Damron) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Damron v. Damron, 2019 Ark. App. 160, 574 S.W.3d 166 (Ark. Ct. App. 2019).

Opinions

RITA W. GRUBER, Chief Judge

Appellant Tina Damron appeals from an order of the Benton County Circuit Court finding her guilty on five counts of indirect criminal contempt pursuant to Arkansas Code Annotated section 16-10-108 (Repl. 2010). For her sole point on appeal, Ms. Damron contends that the court erred in failing to grant her a jury trial. We disagree and affirm.

Tina Damron and Stewart Damron divorced in 2014. The present contempt action arose out of their divorce case. On October 20, 2017, the circuit court ordered Ms. Damron to appear and show cause as to why she should not be held in contempt and incarcerated pursuant to Ark. Code Ann. § 16-10-108 for failure to comply with the circuit court's previous orders. The order listed at least eight alleged violations of specific court orders arising from the divorce proceedings, the substance of which are not at issue in this appeal. The show-cause hearing was set for December 7, 2017.

At the December 7, 2017 hearing, the following colloquy took place:

THE COURT : Pursuant to Ark. Code Ann. § 16-10-108, [Ms. Damron] is on notice as to the citation of contempt in this order dated October 20th as to which orders the Court is wanting to address. She was advised on October *16720th of her right to counsel, her presumption of innocence, her right against self-incrimination, her right to confront and call witnesses and subpoena witnesses. The standard of proof is beyond a reasonable doubt. And this is pursuant to § 16-10-108, contempt is a Class C misdemeanor. Also under § 5-4-401 with the penalties being anything 30 days or less in the Benton County jail and $ 500 or less in a fine.
MS. DAMRON'S COUNSEL : And, Your Honor, since there are, I believe, eight counts, correct me if I'm wrong, of contempt that puts the maximum punishment range in this case of 240 days, which gets us over the six-month requirement necessary for my client to have a right to trial by jury in this case. We would like to invoke that right.
THE COURT : Denied. Thank you.
MS. DAMRON'S COUNSEL : Your Honor, one final one if I could. This-each one is punishable by up to 30 days but under the inherent powers doctrine,[1 ] you, of course, have the authorization to exceed that. We would like to ask for a statutory cap that you plan to go for each of these counts.
THE COURT : We'll see how the evidence comes in. I'll let you know.
MS. DAMRON'S COUNSEL : Thank you, Your Honor.

At the conclusion of the hearing, the court found Ms. Damron guilty of five counts of indirect criminal contempt under Ark. Code Ann. § 16-10-108 and imposed a total of sixty days' incarceration in the Benton County jail, with thirty days suspended.2 The court also ordered payment of restitution and fines. The order was entered December 7, 2017, and Ms. Damron filed a timely notice of appeal on December 21, 2017.

On appeal, Ms. Damron contends that the court erred in failing to grant a jury trial. Specifically, she argues that the court's refusal to grant a jury trial, along with the refusal to cap the statutory amount of days she could serve in jail, indicates that she may have been sentenced to six months or longer in jail, which she contends triggers her right to a jury trial. In addition, Ms. Damron suggests that the court's refusal to indicate how long it intended to sentence her if she were found guilty was in violation of Etoch v. State , 343 Ark. 361, 37 S.W.3d 186 (2001). The State responds that Ms. Damron was not entitled to a jury trial and that she is misinterpreting what Etoch requires.

In Etoch , the appellant was charged with two counts of contempt arising out of two criminal proceedings in which he was a lawyer. He requested notice from the circuit court of the punishment contemplated *168for the contempt and was informed-prior to trial-that it was considering a sentence of up to one year and a fine of up to $ 1000, or both. The appellant requested a jury trial, which was denied. On appeal, the supreme court agreed that the circuit court erred in denying his request for a jury trial:

"Criminal penalties may not be imposed on an alleged contemnor who has not been afforded the protections that the Constitution requires of criminal proceedings." Fitzhugh v. State , 296 Ark. 137, 752 S.W.2d 275 (1988). However, "petty contempt like other petty criminal offenses may be tried without a jury." Taylor v. Hayes , 418 U.S. 488 [94 S.Ct. 2697, 41 L.Ed.2d 897] (1974). "Contempt of court is a petty offense when the penalty actually imposed does not exceed six months or a longer penalty has not been expressly authorized by statute." Id.
Mr. Etoch was actually sentenced to only one day in jail on each conviction, with the sentences to run concurrently. The State argued that, because the sentence actually imposed upon Mr. Etoch was less than six months, he was not entitled to a jury trial under the reasoning of Taylor v. Hayes , supra . We adopted the rule set out in Taylor v. Hayes in Edwards v. Jameson , 283 Ark. 395, 677 S.W.2d 842 (1984). We noted, however, that "the better practice in cases of criminal contempt is for the trial judge to announce at the outset whether punishment in excess of six months may be imposed. If the judge does not contemplate the imposition of a greater sentence, a jury is not necessary; otherwise one may be demanded. " Id. (emphasis added).

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Related

Taylor v. Hayes
418 U.S. 488 (Supreme Court, 1974)
Medlock v. State
942 S.W.2d 861 (Supreme Court of Arkansas, 1997)
Yarbrough v. Yarbrough
748 S.W.2d 123 (Supreme Court of Arkansas, 1988)
Etoch v. State
37 S.W.3d 186 (Supreme Court of Arkansas, 2001)
Morrow v. Roberts
467 S.W.2d 393 (Supreme Court of Arkansas, 1971)
Walker v. First Commercial Bank, N.A.
880 S.W.2d 316 (Supreme Court of Arkansas, 1994)
Carle v. Burnett
845 S.W.2d 7 (Supreme Court of Arkansas, 1993)
Fitzhugh v. State
752 S.W.2d 275 (Supreme Court of Arkansas, 1988)
Tilley v. Malvern National Bank
2017 Ark. 343 (Supreme Court of Arkansas, 2017)
Ford v. State
64 S.W. 879 (Supreme Court of Arkansas, 1901)
Spight v. State
243 S.W. 860 (Supreme Court of Arkansas, 1922)
Edwards v. Jameson
677 S.W.2d 482 (Supreme Court of Arkansas, 1984)

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Bluebook (online)
2019 Ark. App. 160, 574 S.W.3d 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/damron-v-damron-arkctapp-2019.