Himes v. Himes

833 A.2d 1124, 2003 Pa. Super. 370, 2003 Pa. Super. LEXIS 3228
CourtSuperior Court of Pennsylvania
DecidedSeptember 30, 2003
StatusPublished
Cited by12 cases

This text of 833 A.2d 1124 (Himes v. Himes) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Himes v. Himes, 833 A.2d 1124, 2003 Pa. Super. 370, 2003 Pa. Super. LEXIS 3228 (Pa. Ct. App. 2003).

Opinion

OPINION BY

TAMILIA, J.:

¶ 1 John E. Nagurney, Esquire, appeals from the December 3, 20021 judgment of sentence imposed after he was found in direct criminal contempt and fined $500 for having failed to appear at his client’s scheduled conciliation hearing. Upon reconsideration, the fine was reduced to $200.2

¶2 Appellant argues the elements of criminal contempt3 were not proven beyond a reasonable doubt. He also argues he was denied due process in that (1) he wasn’t warned his conduct could be contumacious; (2) he wasn’t given notice a criminal contempt hearing was being conducted; and (3) he was denied the opportunity to secure counsel and prepare his defense.

¶3 “The ability to utilize the sanction of criminal contempt allows the trial court to maintain control in his or her courtroom; however, a trial court should not use this sanction when a lesser means would suffice.” Commonwealth v. Kolansky, 800 A.2d 937, 939 (Pa.Super.2002).

The power to punish for contempt, including the power to inflict summary punishment, is not derived by statute but rather is a right inherent in the courts and is incidental to the grant of judicial power under our Constitution. A trial court’s finding of contempt will not be disturbed absent an abuse of discretion.

Commonwealth v. Ashton (In re Donohue), 824 A2d 1198, 1202 (Pa.Super.2003) (quotation and citations omitted). When reviewing a contempt conviction to determine the sufficiency of the evidence presented, an appellate court will place great reliance on the discretion of the trial judge and is limited to a determination of whether the facts support the trial court’s finding. Kolansky, supra at 939.

¶ 4 In order to sustain a conviction for direct criminal contempt, there must be proof beyond a reasonable doubt of (1) misconduct; (2) in the presence of the court; (3) committed with the intent to [1126]*1126obstruct justice; and (4) that obstructs the administration of justice. Ashton, supra, at 1202; see also Williams v. Williams, 554 Pa. 465, 721 A.2d 1072 (1998). “Misconduct is behavior that is inappropriate to the role of the actor.” Commonwealth v. Odom, 764 A.2d 53, 54 (Pa.Super.2000) (citation omitted). Wrongful intent will be found where the contemnor knows or reasonably should be aware that his conduct is wrongful. Williams, supra.

¶ 5 The record reveals appellant was counsel for husband, Charles Himes, in the underlying divorce/custody suit. Apparently, however, there was a personality conflict which caused appellant to wish to withdraw from representation. Appellant was found in contempt when he failed to follow the proper procedure to effectuate this desired end. The facts leading up to the finding of contempt are summarized succinctly by the trial court in its December 24, 2002 Memorandum granting appellant’s request that the fíne be reduced from $500 to $200. Trial Court Memorandum and Order, Vardaro, J., 12/24/02.

¶ 6 In that Memorandum the trial court notes that on December 2, 2002, while serving as motions judge, appellant briefly appeared in his court room to present a motion on an unrelated matter. Aso sitting in the court room that entire day was Charles Himes, for whom appellant served as counsel. At the close of motions, after appellant had left the court room, Himes approached the court with a motion by appellant to be relieved (as counsel) and a letter from appellant to Himes expressing his desire to withdraw from representation. Unsure as to why Himes was presenting the motion rather than appellant, the court denied the motion and directed appellant to continue as counsel for Himes.

The next morning a child custody mediator was using the undersign’s courtroom to conduct a mediation regarding the Hime’s [sic] children and it was brought to the attention of the Court that [appellant] had not appeared and Mr. Himes wanted him to continue to represent him as Mr. Himes indicated in Motions Court the day before. In light of the fact that all of the parties were present for mediation except for [appellant], the Court through court staff contacted [appellant’s] office by faxing a copy of the December 2, 2002, Order at A.D.2002-220 denying his request to withdraw and by telephoning his office to tell him that he was still attorney of record and would have to appear.
Essentially, [appellant] refused to do so and he was advised by the court staff that he either had to come over and represent his client or we would hold an immediate hearing to determine whether he was in contempt for refusing to do so.
[Appellant] delayed reacting for some period of time and as a result the mediation was adjourned and everyone who had assembled left. Mr. Himes apparently went to [appellant’s] office at that point to question why he had not appeared and ultimately while we do not know what happened there [appellant] appeared for a Contempt Hearing. When he did so he was in the courtroom banging on the door from the courtroom to chambers and had to be told by court staff that that was not appropriate.
We conducted a Contempt Hearing that day, December 3, 2002[.] ...
Ultimately, based on [appellant’s] conduct and his refusal to represent a client for whom he had appeared and not withdrawn his appearance, we found him in contempt on December 3, 2002, and entered the order at A.D.2002-220. We noted at that time that his behavior had disrupted the custody mediation pro[1127]*1127ceedings to the extent that they had to be continued.

Id. at 2-3 (emphasis added).

¶ 7 Our review of the contempt proceedings supports the trial court’s finding appellant was guilty of criminal contempt. By way of explanation for his failure to appear on his client’s behalf at a scheduled custody mediation hearing, appellant provided the court with detailed reasons (four pages) why he felt he could not zealously represent Himes and wished to withdraw from representation. N.T., 12/3/02, at 2-5. The court, wishing to remain focused on the issue of appellant’s failure to appear, asked appellant if he were familiar with the proper way in which to seek withdrawal from representation. Id. at 6. The court questioned appellant’s willful failure to appear on his client’s behalf, despite having been required to do so by the court’s denial of his motion to withdraw and informing him by the court’s telephone call as to his obligation to represent Himes. Appellant then told the court his failure to appear was merely the result of a scheduling error. Id. at 7.

¶ 8 The court, upon hearing this explanation by counsel, found it to be incredible. The court thereupon found “It is clear that [appellant’s] actions have disrupted the business of the Court and that [appellant] had notice that the Rules require him to withdraw properly or that he must appear on behalf of his client_[W]e find counsel is in contempt and he is so adjudicated.” Id. at 11. We agree.

¶ 9 Appellant was scheduled to appear before an officer of the court, a custody mediator, and failed to do so.

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Bluebook (online)
833 A.2d 1124, 2003 Pa. Super. 370, 2003 Pa. Super. LEXIS 3228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/himes-v-himes-pasuperct-2003.