Opinion
No. 75-1172
Decided July 7, 1976.
Contempt of court — Failure to make support payments — Imposition of jail sentence — Habeas corpus — Remedy inappropriate — Due process not violated — Adequate remedy of appeal.
APPEAL from the Court of Appeals for Montgomery County.
On March 17, 1970, Bobby Calhoun, appellant herein, instituted a divorce action against Bertha Louise Calhoun, in the Court of Common Pleas of Montgomery County.
On June 11, 1971, that court granted a decree of divorce to the defendant-wife, upon her cross-petition, and ordered appellant to pay certain sums to her as alimony, and $45 per week to the Bureau of Support of Montgomery County as child support for his three minor children.
On November 8, 1971, appellant was held in contempt of court for not complying with the child support order and for being in arrears $566, as of December 3, 1971. The court conditionally sentenced appellant to ten days in jail and imposed a $500 fine.
On June 5, 1975, appellant, unaccompanied by counsel, was again found in contempt of court for being in arrears $5,126.77 as of May 30, 1975, on child support payments, and failing to show cause why he should not be held in contempt. The court "invoked" the theretofore unexecuted sentence imposed in 1971 of 10 days in jail and a $500 fine.
On June 11, 1975, appellant filed in the Court of Appeals an unverified petition for a writ of habeas corpus, styled: " In the Matter of Bobby Calhoun, Petitioner, v. State of Ohio, Respondent," a motion to proceed in forma pauperis and an affidavit of indigency.
Appellant's petition requests a writ of habeas corpus "* * * because he was denied his right to counsel as provided in the Sixth Amendment as defined in Argersinger v. Hamlin, 407 U.S. 25[,] 92 S. Ct. 2006 (1972) when the Montgomery County Common Pleas Court, Referee Larry Moore sitting, sentenced him to serve ten days in the Montgomery County Jail for contempt of court."
On October 24, 1975, the Court of Appeals dismissed appellant's petition for a writ of habeas corpus, holding that (1) appellant's proper remedy was by way of an appeal, citing R.C. 2705.09; In re Burson (1949), 152 Ohio St. 375; Bly v. Smith (1916), 94 Ohio St. 110; and Annotation, 33 A.L.R. 3d 632, and (2) inasmuch as appellant was sentenced to confinement for committing civil contempt of court, " Argersinger v. Hamlin, supra, is not in point."
The cause is before this court upon an appeal as a matter of right.
Mr. John W. Kessler, for appellant.
Mr. Lee C. Falke, prosecuting attorney, Mr. Jonathan A. Horwitz and Mr. John V. Spalla, for appellee.
Appellant's brief in the Court of Appeals sets forth in its statement of the case appellant's 1971 contempt conviction, his two-day confinement, and that the remainder of the sentence was "conditionally suspended." The brief submitted by appellant to this court, however, contains no such references, nor does it state that the action taken by the Court of Common Pleas in June 1975 was the invocation of the conditionally suspended 1971 sentence.
This court is loath to consider such omission an attempt to mislead the court, but such facts are clearly relevant herein inasmuch as Argersinger v. Hamlin (1972), 407 U.S. 25, decided on June 12, 1972, was specifically held to lack retroactive effect in Ohio in Cincinnati v. Berry (1973), 34 Ohio St.2d 106 , and most of the events giving rise to appellant's 1975 confinement order occurred in 1971. We leave those considerations for another day, however, because for several other reasons we affirm the judgment of the Court of Appeals dismissing this action.
The dissenting opinion of STERN, J., concurred in by O'NEILL, C.J., and W. BROWN, J., urged retrospective application of Argersinger to criminal trials.
First, Argersinger v. Hamlin, supra, held that the state must furnish counsel to an indigent defendant in a petty offense criminal prosecution, pursuant to the Sixth Amendment guarantee of the assistance of counsel "in all criminal prosecutions." (Emphasis added.) In this state "[c]ontempt proceedings are regarded as sui generis, and not criminal prosecutions * * *." State v. Timson (1974), 38 Ohio St.2d 122, paragraph three of syllabus. The only noncriminal situation to which this court has applied Argersinger is involuntary civil commitment proceedings undertaken pursuant to R.C. 5122.15. In re Fisher (1974), 39 Ohio St.2d 71. In addition, we find a great factual difference in Argersinger — a criminal prosecution involving the inordinately unbalanced power of the state's prosecutorial forces and resources versus an indigent criminal defendant — and the instant cause, where appellant was summoned before the court sua sponte to explain why he had not contributed to the support of his children for several years, and the "adverse" party, the mother of the children, was not represented by counsel.
Secondly, we find inapposite In re Green (1962), 369 U.S. 689, urged by counsel for appellant in oral argument to be the "leading case" in support of his position herein. In that case, the court held that the contempt conviction of an attorney, who advised picketers in a labor dispute to continue picketing in violation of an ex parte injunction, violated due process rights where such conviction was had "* * * without a hearing and an opportunity to establish that the state court was acting in a field reserved exclusively by congress for the federal agency." Id., at page 693. However, appellant, herein apparently enjoyed the full panoply of due-process accouterments, save the claimed right to be provided with counsel. Indeed, the United States Supreme Court, in its most recent statement upon due-process rights of alleged contemnors, admonishes that "* * * all we have decided today is that a contemnor is entitled to the elementary due process protections of `reasonable notice of the specific charges and opportunity to be heard in his own behalf,' supra, at 499, neither of which petitioner received. Nowhere do we intimate that `a full-scale trial is appropriate.' * * *" Taylor v. Hayes (1974), 418 U.S. 488, 500, at fn. 9. The court also stated, at page 496, that even criminal contempt "`* * * is not a crime of the sort that requires the right to jury trial regardless of the penalty involved.'"
Thirdly, we believe that certain defects in appellant's petition wholly justify its dismissal by the Court of Appeals. R.C. 2725.04 requires that the petition be "signed and verified" and that it "specify * * * [t]he officer, or name of the person by whom the prisoner is so confined or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation and the person who is served with the writ is deemed the person intended." This petition satisfies neither of those requirements, and was therefore properly dismissed. In re Striker (1956), 101 Ohio App. 455.
Finally, appellant has not shown the inadequacy of the remedy of appeal from the judgment of the Court of Common Pleas. See In re Hunt (1976), 46 Ohio St.2d 378, and authorities therein cited. This court has held that habeas corpus is available to determine whether a person was not afforded counsel and thereby denied due process in non-criminal civil commitment proceedings in In re Fisher, supra, but only where habeas corpus is the "only adequate remedy available for the vindication of the constitutional right of due process."
Even though appellant is not presently confined, we will not consider the question of mootness (see In re Popp, 35 Ohio St.2d 142) because counsel for appellant assured the court in oral argument that appellant is "on his own recognizance pending the outcome of this appeal" and, therefore, still under "restraint."
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, W. BROWN and P. BROWN, JJ., concur.
I concur in the judgment herein only insofar as dismissal of appellant's petition is premised upon noncompliance with R.C. 2725.04. Inasmuch as appellant sought to invoke the jurisdiction of the Court of Common Pleas, the burden was upon him to meet the statutory requirements. In re Hunt (1976), 46 Ohio St.2d 378, in which appellant contested the jurisdiction of a Juvenile Court pursuant to R.C. 2151.27 and Juv. R. 10, is not applicable to the facts of this case, and reliance thereupon by the majority herein is misplaced.