During a custody hearing related to a divorce, the defendant took the notebook of her child’s guardian ad litem. Following a February 7, 2011, hearing, the guardian ad litem and the 12-year-old child (her client) had a conversation in the foyer of the St. Clair County courthouse, near the bathrooms and water fountain. At the end of the conversation, the guardian left her file and a yellow notebook with her handwritten notes in a chair in the foyer.
The defendant walked into the foyer where the conversation had taken place. When the guardian returned to retrieve her items, she determined that the notebook was missing. Both the guardian and the defendant’s attorney asked the defendant whether she knew the whereabouts of the notebook. The defendant denied any knowledge of the whereabouts of the notebook.
A little later, court security found the notebook in a trash can in the foyer, but with some notes missing. A hearing was set for February 10, 2011; and counsel was notified.
At the February 10 hearing, the defendant admitted that she took the notebook, placed it in her crate of possessions, later tore out the notes, and placed the notebook and its remaining contents in the foyer trash can. During the February 10 hearing, the defendant’s attorney returned the missing notes, and the defendant testified she had returned all the notes and that the notes had not been copied or duplicated in any way.
The court found the defendant guilty of contempt and sentenced her to 5 days in the St. Clair County jail, but suspended 3 days of the sentence. This conviction and sentence was appealed to the Alabama Court of Civil Appeals. The appeals court found that the defendant could not be convicted of direct contempt and therefore sentenced to jail because her actions did not occur in the presence of the judge. The court of appeals also found that the defendant could not be properly convicted of constructive contempt because the proper procedure had not been followed. Alabama Rules of Civil Procedure § 70A. Even through the court reversed the finding of direct contempt, it did not rule that the defendant was immune from charges of constructive contempt.
Direct contempt must occur in the presence of the judge and subjects the accused to the possibility of immediate incarceration. Constructive contempt may occur in the presence of the judge or so close to the courtroom that it interrupts, disturbs, or hinders the court’s proceedings. Constructive contempt may also be a refusal to obey the court’s orders, rules, or commands. For charges of constructive contempt to be pursued, a petition must be filed, notice to the accused provided, and counsel provided if requested. Incarceration can occur only after a hearing.
See Dreading v. Dreading, decided on November 10, 2011.
Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.
Return to top.
Return to Legal Developments.
Litigation Attorneys.
