Yarbrough v. Yarbrough

748 S.W.2d 123, 295 Ark. 211, 1988 Ark. LEXIS 156

• Court: Supreme Court of Arkansas
• Decided: April 11, 1988
• Docket: 87-141
• Status: Published

Opinions

Tom Glaze, Justice.

This case emanates from a divorce action in which the appellant had Leen ordered to make monthly child support payments. Appellant allegedly became delinquent in his payments, and the trial court issued a court order for him to appear and show cause why he should not be held in contempt. During his attempt to serve this order, Doyne Ball, a process server, was attacked and beaten by appellant. Appellant’s actions resulted in the trial court’s setting a hearing to determine if appellant was in criminal contempt of court. At the end of that hearing, the court found the appellant guilty and sentenced him to six months imprisonment and a fine of $100.00. We affirm.

In reviewing cases of criminal contempt, we view the record in the light most favorable to the trial judge’s decision and sustain that decision if supported by substantial evidence. Rowell v. State, 278 Ark. 217, 644 S.W.2d 596 (1983); Dennison v. Mobley, Chancellor, 257 Ark. 216, 515 S.W.2d 215 (1974).

The record clearly reflects that the appellant attacked and assaulted Mr. Ball. In fact, Mr. Larry Sims was an eyewitness to the assault, and testified that he observed the appellant pursue and strike Ball. A police officer testified that he arrived moments after the incident to find Ball appearing disheveled and bleeding and attempting to serve “some type of subpoena” on the appellant. Although appellant does not dispute that he struck Ball, he argues that he was not in contempt because his action did not constitute disobedience of process. Appellant further claims that, even if he were in contempt, the applicable statutory law limits the sentence that can be imposed to a maximum of ten days in jail and a fine of $50.00.

Appellant relies upon Ark. Code Ann. § 16-10-108 (1987) which sets forth the powers of the court in punishing criminal contempt. He particularly refers to subsection (a)(3) which provides that the court may punish “willful disobedience of any process or order lawfully issued or made by it,” and to subsection (b)(1) which provides for a maximum of ten days imprisonment and a fine of $50.00.

This court, however, has interpreted the foregoing statutory provisions and has held they are not a limitation on the power of the court to inflict punishment for disobedience of process. Morrow v. Roberts, Judge, 250 Ark. 822, 467 S.W.2d 393 (1971). Stated mother terms, this court, citing Article 7, § 26 of the Arkansas Constitution, held the Legislature cannot abridge the power of the courts to punish for contempt in disobedience of their process; the Constitution specially reserved this inherent power in the courts, when delegating authority to the Legislature to regulate punishments for contempts. Spight v. State, 155 Ark. 26, 243 S.W. 860 (1922); Ford v. State, 69 Ark. 550, 64 S.W. 879 (1901). Also relevant to the present case, we point out that, in Bryan v. State, 99 Ark. 163, 137 S.W. 561 (1911), this court held that a person’s resistance of process, or evasion or circumvention of an officer in the service of process, where it is sufficient to amount to contempt of court, is disobedience of process, and therefore falls within the language of the constitution, which in effect forbids regulation by the Legislature. See also Spight, 155 Ark. 26, 243 S.W. 860.

Here, appellant clearly resisted Ball’s efforts to serve the trial court’s order on him, and did so by conduct that could be characterized not only as willful, but also as criminal in nature. Because the appellant acted in willful disobedience of the court’s process or order, the trial court, according to well-established law, was not limited to those penalties prescribed by § 16-10-108.¹

Finally, appellant contends that the sentence imposed by the trial court constitutes cruel and unusual punishment. That argument, however, was not raised below, and, therefore, we are unable to consider it for the first time on appeal. See, e.g., Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988).

Purtle, J., dissents.

1 We note that a person may demand a jury trial in a criminal contempt proceeding when the possible imprisonment may exceed six months. Taylor v. Hayes, 418 U.S. 488 (1974); Edwards v. Jameson, 283 Ark. 395, 677 S.W.2d 842 (1984).