Courts have authority to punish for contempt ... with limitations

By Agenique Smiley
BridgeTower Media Newswires
DETROIT—In a criminal contempt proceeding, the court has the same responsibilities and obligations as a court conducting a criminal trial. It must clearly inform the party of the charges pending against him or her; and allow the accused party to procure counsel and prepare a defense. The court is also charged with the application of the rules of evidence.

Similarly, the party charged with criminal contempt also has the same rights and is afforded the same protections as a defendant in a criminal trial. He or she must be informed of his or her right to counsel, and enjoys the presumption of innocence and the Fifth Amendment right against self-incrimination.

A court must give a charge of criminal contempt careful and thoughtful consideration to ensure complete fulfillment of its duties and, not only thoroughly inform the charged party of his or her rights, but also to make certain that he or she is not deprived of those rights.

In Zientek v. Zientek, the Court of Appeals affirmed the Genesee County Circuit Court’s decision holding plaintiff Jill Zientek in contempt of court for violation of an order prohibiting her from removing items thought to possibly be marital property from her storage unit.

Plaintiff filed for divorce on Feb. 6, 2014. While the divorce was still pending, plaintiff removed property from the marital home, some of which defendant Wolfgang Zientek believed was personal property belonging to him and marital property to which he was entitled a share, and put them in her storage unit.

The court adjourned the trial scheduled for June 19, 2014, and ordered the parties and their counsel to locate and inventory/document any property in dispute. The parties went to plaintiff’s storage unit, photographed its contents and agreed that neither party would remove anything until further instructions from the court. This agreement was memorialized in an order dated Aug. 13, 2014.
Specifically, the order stated the following:

“Effective June 19, 2014, plaintiff’s storage unit ... shall be and shall remain closed and locked. Neither party ... shall cause any item to be removed or fail to act to secure the premises ... until further order of the court. The facility shall remain as it was when it was closed when the parties and counsel were present.”

The divorce trial resumed on Aug. 20, 2014, and an order was later entered directing, in addition to the parties’ agreement to a proposed judgment of separate maintenance, each party to retain his or her “jewelry, personal effects, personal papers, etc., excluding the contents of storage unit ...”

The court addressed the storage unit separately and ordered the following:

“The parties shall divide the contents of the storage unit whereby a third party shall be present to witness the division. No other persons are to be present. If the parties do not agree as to who is awarded a specific item, that item shall be set aside and sold and the parties shall share in the proceeds. The parties, through counsel, shall determine the third party and the method of sale for any items that are not agreed upon, and they shall share in the cost of the [third] party, if any.”

The Aug. 20, 2014, judgment of separate maintenance converted into the court’s judgment of divorce.

Plaintiff’s violation

Defendant later became concerned about the storage unit and a gun that was missing from his home. In response, his counsel issued a subpoena to the storage facility requesting the access records for plaintiff’s unit. From the produced records, defendant learned that plaintiff had accessed the unit five times since the court’s order of Aug. 13, 2014.

As a result, defendant filed an emergency motion asking the court for ex parte relief and to order plaintiff to show cause why she should not be held in contempt of court for violating the trial court’s order and the judgment of separate maintenance/divorce. The trial court ordered the storage unit to be sealed but reserved its decision on the property in the storage unit until a hearing on the matter could be held.

The hearing took place on March 2, 2015. In defense of her actions, plaintiff asserted that it had not been made clear to her that she was not allowed to go into the storage unit and she testified that the only items she had removed were a vanity, a pink chair, two lamps, a small painted sewing table and clothing.

In order to resolve the issue, the trial court instructed the parties to agree on a date and time to go to the storage unit and divvy up its contents, and set a review date for April 20, 2015. However, when the parties went to the storage unit, it became clear that plaintiff had removed more items than she had previously acknowledged.

Defendant informed the court at the April 20, 2015, review hearing, submitting before and after photographs of the unit’s contents taken in June 2014 and April 2015, respectively. Plaintiff and her attorney agreed that the “after” picture accurately depicted what the storage unit looked like when the parties went there to divvy up its contents.

The trial court gave the parties seven days to supplement their pleadings with whatever else they wanted the court to consider in deciding defendant’s show cause motion. Both parties filed supplemental pleadings.
In a June 3, 2015, order, the trial court found that plaintiff, by her own admission, had engaged in indirect contempt of court with respect to the items in the storage unit. Accordingly, the court found plaintiff in criminal contempt and ordered her to pay $7,500 in sanctions, $2,500 in damages, and defendant’s attorney fees necessitated by plaintiff’s conduct, and it granted defendant’s request for the remaining items in the storage unit.

Plaintiff’s motion for reconsideration

Plaintiff filed a motion for reconsideration challenging, among other things, the court’s $2,500 damages award as being speculative, and arguing that the court had erred by not informing her she was at risk of being found in criminal contempt or informing her of and affording her the due process safeguards to which she was entitled.

The court gave defendant 21 days to respond. Thereafter, the court entered an order on Aug. 20, 2015, granting plaintiff’s motion and admitting that it had not given plaintiff a full hearing before finding her in
contempt. However, the court also stated that it had provided her with sufficient due process to satisfy the statutory requirements.

The court also noted that, although it believed that it afforded plaintiff the presumption of innocence and the right against self-incrimination, it did not make that explicit to plaintiff on the record.

The court granted plaintiff a new hearing in order “to provide Plaintiff the utmost due process protections.” Accordingly, the trial court concluded its written opinion by thoroughly informing plaintiff of her rights with regard to the criminal contempt charges against her.

Hearing on plaintiff’s motion for reconsideration

The court held a hearing on plaintiff’s motion for reconsideration on Oct. 2, 2015, during which she, after consulting her attorney, testified that, although she was aware of the Aug.13, 2014, order and judgment of separate maintenance, she did not know that either prohibited her from going to the storage unit and that she took the items to furnish her new apartment, not to “thwart” defendant or violate the court’s order.
She also gave testimony acknowledging that the before and after photos of the storage unit show “quite a difference” and that she did not remember the June 19, 2014, trip to the storage unit for the parties’ agreement with regards thereto because she “blacks out” and was “nervous and uncomfortable ... when it all was going on.” She also testified that the entire episode was “so upsetting to her that she stepped back and shut down.”

In its opinion and order on plaintiff’s motion for reconsideration, the trial court observed that plaintiff admitted on multiple occasions that she had taken items from the storage unit, and that comparison of the before and after pictures showed that she had taken significantly more than she admitted to under oath, and that her “contradictory testimony that she did not know about or understand the Court’s orders is not credible.”
The trial court concluded that “defendant demonstrated, beyond a reasonable doubt,” that plaintiff willfully violated court orders. Therefore, the court fined plaintiff $7,500 for contemptuous behavior, ordered her to pay defendant $2,500 in damages, and awarded defendant attorney fees and all of the property remaining in the storage unit.

Plaintiff appealed the judgment and order which was entered on Oct. 2, 2015.

Contempt of court

Plaintiff argued that the trial court violated her due process rights when it relied on admissions she made before she was advised of the nature of the contempt charges and of the rights to which she was entitled, and because the trial court did not conduct the Oct. 2, 2015, hearing as a criminal trial.

Contempt of court is a willful act, omission, or statement that tends to impair the authority or impede the functioning of a court, or a neglect or violation of a duty to obey a court order.

Courts have “inherent independent and statutory authority” to punish a person for contempt.

Indirect contempt

Indirect contempt is contempt committed outside the court’s presence and may be found only upon proof of the facts charged is made by affidavit or other method and the party charged has been given an opportunity to defend his or herself.

Criminal contempt

Proceedings regarding contempt may be civil or criminal. According to DeGeorge v Warheit from 2007, “a defendant charged with contempt is entitled to be informed not only whether the contempt proceedings are civil or criminal, but also the specific offenses with which he or she is charged.”

A party in a criminal contempt proceeding has many of the same rights as a defendant in a criminal proceeding. The party charged with contempt has a right to counsel and is entitled to an opportunity to prepare his or her defense. Moreover, a charge of criminal contempt carries with it the presumption of innocence and the party charged also has the Fifth Amendment right against self-incrimination. Additionally, the rules of evidence apply.

To prove criminal contempt, the moving party must prove beyond a reasonable doubt that: (1) the party being charged engaged in a willful disregard or disobedience of authority or orders of the court, and (2) that contempt has been clearly and unequivocally shown.

The Court of Appeals’ ruling

The Court of Appeals found that plaintiff’s arguments that the trial court did not afford her the proceedings and protections required during a hearing on a charge of criminal contempt were not completely unfounded.
However, the court later affirmed the Genesee court’s ruling, stating that the record “convinced” it that the trial court adequately informed plaintiff of the rights and process to which she was entitled.

The court specifically referenced the fact that she was informed of the charges against her in writing in two separate orders, Aug. 20, 2015, and Oct. 2, 2015; she already had an attorney; and that she had more than six weeks to prepare a defense.

The Court of Appeals also noted that plaintiff did not argue that the trial court had not afforded her the presumption of innocence nor did she allege that her self-incriminating testimony at the Oct. 2, 2015, hearing on her motion for reconsideration was coerced.

The court reasoned that the trial court record showed that plaintiff was informed of the nature of the charge against her, given an opportunity to work with her attorney to prepare a defense, and afforded the presumption of innocence and the privilege against self-incrimination.

The court also concluded that the testimony and evidence presented at the Oct. 2, 2015, hearing supported the trial court’s finding beyond a reasonable doubt that plaintiff had removed items from the storage facility unilaterally, in violation of the parties’ judgment of divorce.

Ultimately, the Court of Appeals held that, in light of the record support for the trial court’s findings of fact, the trial court did not abuse its discretion in issuing an order of criminal contempt against plaintiff.
Plaintiff’s counsel filed a motion for reconsideration on March 23, 2017, and the case is still pending.

Neither plaintiff’s counsel Dennis L. Perkins, nor defendant’s counsel Neil C. Szabo responded to requests for comment.