State ex rel. Zirkle v. Fox, Judge
Annotate this CaseSeptember 1998 Term
__________
No. 25192
__________
STATE OF WEST VIRGINIA EX REL. JOHN ZIRKLE,
Petitioner
v.
HONORABLE FRED L. FOX, II, JUDGE OF THE CIRCUIT COURT OF MARION COUNTY,
AND THE CITY OF FAIRMONT, A MUNICIPAL CORPORATION,
Respondents
__________________________________________________________________
Petition for Writ of Prohibition
Writ Denied
__________________________________________________________________
Submitted: October 6, 1998
Filed: December 8, 1998
Jerald E. Jones,
Esq. Kevin
V. Sansalone, Esq.
Norman T. Farley,
Esq. Fairmont,
West Virginia
West &
Jones
Attorney for Respondents
Clarksburg, West Virginia
Attorneys for Petitioner
JUSTICE WORKMAN delivered the Opinion of the Court and was joined by
JUSTICES DAVIS, MAYNARD and MCCUSKEY.
JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.
JUSTICE MCGRAW did not participate in the decision of this case.
SYLLABUS BY THE COURT
1. "'"A writ of prohibition will
not issue to prevent a simple abuse of discretion by a trial court. It will only issue
where the trial court has no jurisdiction or having such jurisdiction exceeds its
legitimate powers. W.Va.Code, 53-1-1." Syl. pt. 2, State ex rel. Peacher v.
Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).' Syllabus Point 2, State ex rel. Kees
v. Sanders, 192 W.Va. 602, 453 S.E.2d 436 (1994)." Syl. Pt. 1, State ex rel. United
Hosp. Center, Inc. v. Bedell, 199 W.Va. 316, 484 S.E.2d 199 (1997).
2. "In determining whether to
entertain and issue the writ of prohibition for cases not involving an absence of
jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate
powers, this Court will examine five factors: (1) whether the party seeking the writ has
no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether
the petitioner will be damaged or prejudiced in a way that is not correctable on appeal;
(3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4)
whether the lower tribunal's order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5) whether the lower tribunal's
order raises new and important problems or issues of law of first impression. These
factors are general guidelines that serve as a useful starting point for determining
whether a discretionary writ of prohibition should issue. Although all five factors need
not be satisfied, it is clear that the third factor, the existence of clear error as a
matter of law, should be given substantial weight." Syl. Pt. 4, State ex rel. Hoover
v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
3. "In reviewing the findings of fact
and conclusions of law of a circuit court supporting a civil contempt order, we apply a
three-pronged standard of review. We review the contempt order under an abuse of
discretion standard; the underlying factual findings are reviewed under a clearly
erroneous standard; and questions of law and statutory interpretations are subject to a de
novo review." Syl. Pt. 1, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996).
4. "The appropriate
sanction in a civil contempt case is an order that incarcerates a contemner for an
indefinite term and that also specifies a reasonable manner in which the contempt may be
purged, thereby securing the immediate release of the contemner, or an order requiring the
payment of a fine in the nature of compensation or damages to the party aggrieved by the
failure of the contemner to comply with the order." Syl. Pt. 3, Robinson v. Michael,
166 W. Va. 660, 276 S.E.2d 812 (1981).
5. Where a contemnor
alleges financial inability to pay in a civil contempt proceeding, he bears the burden of
proving such inability to comply with a court mandate in order to avoid imprisonment.
6. "Before an individual may be
committed to jail for contempt of court, he must be personally served with notice of the
charge and afforded an opportunity to be heard and to defend." Syl. Pt. 3, Chesapeake
& Ohio System Federation, Brotherhood of Maintenance of Way Employees v. Hash, 170 W.
Va. 294, 294 S.E.2d 96 (1982).
Workman, Justice:
Mr. John Zirkle
(hereinafter "Mr. Zirkle" or "petitioner") seeks a writ of prohibition
preventing the enforcement of a June 1, 1998, judgment of the Circuit Court of Marion
County, directing that Mr. Zirkle be incarcerated for civil contempt of court. We deny the
requested writ.
I. Facts
The City of Fairmont filed
a "Petition for Abatement of Public Nuisance and Mandatory Injunction" against
Mr. John Zirkle and Mr. Tulasi JoshiSee footnote 1 1 on June 17, 1997. The City requested the lower court to enter an order
declaring that certain real estate constituted a public nuisance, to issue a mandatory
injunction requiring Mr. Zirkle to demolish a structure on the real estate which had been
severely damaged by fire, and to require Mr. Zirkle to post bond with a corporate surety.
On July 29, 1997, the lower court entered an order granting the mandatory injunction
against Mr. Zirkle, finding also that Mr. Tulasi Joshi had no responsibility for the
public nuisance. The lower court ordered Mr. Zirkle to demolish the structure and to post
bond with corporate or other surety in the sum of $20,000.
On March 17, 1998, the
City filed a petition asking the lower court to require Mr. Zirkle to appear and show
cause why he should not be in contempt of court for failure to comply with the order of
July 29, 1997. By order dated March 21, 1998, the lower court issued a rule against Mr.
Zirkle requiring him to appear on May 13, 1998, to show cause why he should not be
adjudged in contempt of court and to produce documents pertaining to his financial
condition.
During the May 13, 1998,
hearing, Mr. Zirkle's counsel argued that Mr. Zirkle did not have sufficient funds to
comply with the lower court's order. Several financial documents were presented, including
several years of income tax returns, current income information, and bank statements. Mr.
Zirkle maintained that he owned no automobilesSee
footnote 2 2 or real estate other than the property on which the public
nuisance was situated. Mr. Zirkle did not request the lower court to permit the
presentation of witness testimony. Mr. Zirkle's income tax returns indicated that his
income was $6100 in 1997, $8100 in 1996, and $6600 in 1995. The estimated cost of
demolition was allegedly $12,000 to $15,000. Mr. Zirkle also contended that he had
attempted to obtain a surety bond with three different bonding companies, but no insurance
company would provide such a bond.
The City informed the
lower court during the May 13, 1998, hearing that Mr. Zirkle owned stock, a five percent
interest, in a Subway restaurant. The City also contended that a review of Mr. Zirkle's
tax returns would reveal that he had claimed substantial depreciation expenses for
operation of the Subway restaurant. Such depreciation expenses, the City maintained,
operated as a tax reduction for arriving at income, but not an out of pocket expense for
Mr. Zirkle. The City also contended that Mr. Zirkle's tax returns may not be wholly
indicative of his ability to pay for the required demolition.
At the conclusion of the
May 13, 1998, hearing, the lower court held Mr. Zirkle in contempt of court. The lower
court carefully explained, however, that Mr. Zirkle would not be incarcerated if he did
not have the financial ability to demolish the building. The lower court indicated that if
Mr. Zirkle was concealing funds and did not demolish the building, he would be
incarcerated. Mr. Zirkle was instructed to provide the City with all financial information
necessary to determine the question of his financial ability to have the building
disassembled, and a subsequent hearing on that financial issue was scheduled for June 1,
1998.
During the June 1, 1998,
hearing, the City proffered evidence indicating that Mr. Zirkle was employed by Green King
Company, whose major source of revenue was the Subway restaurant in which Mr. Zirkle owned
a five percent interest. The City's evidence also demonstrated that Mr. Zirkle had
originally owned 2000 of the 5000 total shares in the restaurant, but that he had
transferred 1750 shares to his sister in 1991, six years prior to the initiation of this
action,See footnote 3 3 leaving him
with only five percent of the company. Through Mr. Zirkle's employment with Green King
Company, he earned approximately $600 per month and drove a company car. Mr. Zirkle had
owned a twenty percent interest in a building in Clarksburg, West Virginia, but had
apparently equitably transferred that interest to his sister, with no deed yet recorded.
Although Mr. Zirkle had received proceeds from an insurance settlement subsequent to the
fire on the subject property, he had not utilized those funds for the repair or demolition
of the building.
Mr. Zirkle's attorney
argued during the June 1, 1998, hearing that Mr. Zirkle did not receive substantial
benefit from his association with Green King Company or from his interest in the Subway
restaurant. Mr. Zirkle's attorney further maintained that the transfer of stock to the
sister was consummated prior to the initiation of this action and should not be viewed as
concealment of assets.
Based upon the presentation of evidence, the lower court found that Mr. Zirkle was concealing assets, found him in civil contempt, and ordered him to report to jail on July
6, 1998. Mr. Zirkle thereafter filed this writ of prohibition seeking to
prevent his incarceration.
II. Standard of Review
In syllabus point one of
State ex rel. United Hospital Center, Inc. v. Bedell, 199 W.Va. 316, 484 S.E.2d 199
(1997), this Court noted:
" 'A writ of
prohibition will not issue to prevent a simple abuse of discretion by a trial court. It
will only issue where the trial court has no jurisdiction or having such jurisdiction
exceeds its legitimate powers. W.Va.Code, 53-1-1.' Syl. pt. 2, State ex rel. Peacher v.
Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977)." Syllabus Point 2, State ex rel.
Kees v. Sanders, 192 W.Va. 602, 453 S.E.2d 436 (1994).
Syllabus point four of
State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), explains:
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5)
whether the lower tribunal's order raises new and important problems or
issues of law of first impression. These factors are general guidelines that serve as a
useful starting point for determining whether a discretionary writ of prohibition should
issue. Although all five factors need not be satisfied, it is clear that the third factor,
the existence of clear error as a matter of law, should be given substantial weight.
Specifically regarding our review of a civil contempt order, we explained
as follows in syllabus point one of Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193
(1996),
In reviewing the
findings of fact and conclusions of law of a circuit court supporting a civil contempt
order, we apply a three-pronged standard of review. We review the contempt order under an
abuse of discretion standard; the underlying factual findings are reviewed under a clearly
erroneous standard; and questions of law and statutory interpretations are subject to a de
novo review.
III. Civil Contempt
In syllabus point three of
Robinson v. Michael, 166 W. Va. 660, 276 S.E.2d 812 (1981) , we stated:
The appropriate
sanction in a civil contempt case is an order that incarcerates a contemner for an
indefinite term and that also specifies a reasonable manner in which the contempt may be
purged, thereby securing the immediate release of the contemner, or an order requiring the
payment of a fine in the nature of compensation or damages to the party aggrieved by the
failure of the contemner to comply with the order.
See also Trecost v. Trecost, 202 W. Va. 129, 502 S.E.2d 495 (1998); State ex rel. Britton
v. Workman, 176 W.Va. 586, 346 S.E.2d 562 (1986).
IV. Financial Inability to Pay
Regarding a contemnor's
financial inability to comply with a court order, we noted the following in Simmons v.
Simmons, 175 W.Va. 3, 330 S.E.2d 325 (1985):
[T]he great majority of jurisdictions have
expressly held or recognized that in civil contempt proceedings based upon a failure to
comply with a court order requiring the payment of alimony, the burden rests upon the
alleged contemnor to prove his inability to pay. See 24 Am.Jur.2d Divorce & Separation
Sec. 807 (1983); Annot., 53 A.L.R.2d 591 (1957).
175 W.Va. at 5, 330 S.E.2d at 327-28.
Imposing the burden upon the contemnor is a typical approach also utilized in other jurisdictions. In Lynch v. Lynch, 677 A.2d 584 (Md. 1996), the burden was placed upon the contemnor to prove his inability to comply with a court mandate in order to avoid imprisonment. 677 A.2d at 587. In Newell v. Hinton, 556 So. 2d 1037 (Miss. 1990), the Mississippi court explained that the contemnor has the burden of proving inability to pay and that such showing must be in particular terms. 556 So. 2d at 1044. See State ex rel. Watkins
v. Watkins, 972 S.W.2d 609 (Mo.App. S.D. 1998); Maddux v. Maddux, 475 N.W.2d 524 (Neb. 1991); Dial v. Dial, 703 P.2d 910 (N.M. App.1985); Brown v. Brown, 670 S.W.2d 167 (Mo.App. W.D. 1984) .
The rationale for
placement of the burden of proof upon the contemnor is also cogently explained in 17
C.J.S. Contempt s 84(2), p. 214, as follows:
If an affirmative defense is set up or
called for, the burden is on defendant to sustain it. So, where a court order and its
violation are established or admitted, the burden is on accused to show facts which will
excuse his default, and if the defense or excuse is that of inability to comply with the
order, defendant has the burden of proving such inability, that it was real, and not
occasioned by his own acts .
In 17 Am.Jur.2d Contempt s 61 (1964), the following explanation is
forwarded:
A person who seeks to satisfy the court
that his failure to obey an order or decree was due entirely to his inability to render
obedience, without fault on his part, must prove such inability. In other words, the
burden of proving inability to comply with the order allegedly violated is on the alleged
contemnor.
We consequently find that where a contemnor alleges financial inability to pay in a civil
contempt proceeding, he bears the burden of proving such inability to comply with a court
mandate in order to avoid imprisonment.
V. Due Process Rights of Civil Contemnor
We stated in Chesapeake
& Ohio System Federation, Brotherhood of Maintenance of Way Employees v. Hash, 170
W.Va. 294, 294 S.E.2d 96 (1982):
[An] alleged contemnor is subject to
incarceration or fine if he is found guilty of the contempt and is therefore entitled to
certain fundamental procedural safeguards to insure that he is not deprived of his liberty
or property without due process of law. The most basic of the procedural safeguards
guaranteed by the due process provisions of our state and federal constitutions are notice
and the opportunity to be heard, which are essential to the jurisdiction of the court in
any pending proceeding. State ex rel. Staley v. Hereford, 131 W.Va. 84, 45 S.E.2d 738
(1947).
170 W. Va. at 298-99, 294 S.E.2d at 101. Syllabus point three of
Chesapeake explains: "Before an individual may be committed to jail for contempt of
court, he must be personally served with notice of the charge and afforded an opportunity
to be heard and to defend."
A reasonable approach to
civil contempt issues was advanced in In re S. L. T., 180 So. 2d 374 (Fl. 1965), as
follows:
The purpose of civil contempt proceedings
is to preserve and enforce rights of private parties to suits and to compel obedience to
orders and decrees made for benefit of such parties. These proceedings are generally
remedial and civil in their nature. They are essentially a remedy for coercing a person to
do the thing required where the disobeyed order may still be obeyed. In civil contempt
proceedings the penalty is coercive rather than punitive. A punitive sentence may not be
imposed and imprisonment to compel compliance is not available if the accused is unable to
comply. . . . Due process of law requires that the party accused be advised of the charge
and accorded opportunity to defend himself. . . . Where a court order and its violation
are established or admitted the burden is on the accused to show facts which would excuse
his default. If the defense or excuse is that of inability to comply, the accused has the
burden of proving by a preponderance of the evidence such inability . This is based
upon the fact that the making of the order involved an implicit finding of ability to
comply.
180 So. 2d at 378.
As explained above, this
Court is authorized to grant a writ of prohibition against a lower tribunal upon a showing
of lack of jurisdiction or if the lower court exceeded its legitimate powers. In the
present case, we find that the petitioner was properly notified of the proceedings against
him, as he admits. We also find that he was also provided with adequate opportunity to be
heard and to defend during the two hearings provided by the lower court. At the conclusion
of the first hearing, the petitioner was specifically instructed to provide financial
records supporting his contention that he was financially unable to comply with the court
order. During the second hearing, his rights to present evidence, to be heard, and to
defend were adequately protected.
In examining the issue of
whether the lower court exceeded its legitimate powers, Hoover, as discussed above,
indicates that this Court is to determine whether the lower court's order is clearly
erroneous as a matter of law. The petitioner failed to sustain his burden of proving his
inability to pay, and the evidence presented convinced the lower court that the
petitioner did have the financial means to comply with the order and purge himself of the
contempt. We find no clear error in that conclusion. The petitioner was free to present
any evidence he deemed relevant and was uninhibited in this regard by the lower court.
Based upon evidence presented by the petitioner and the City, the lower court arrived at
its conclusion. We find no basis for the granting of a writ of prohibition, and we
therefore deny the requested relief.
Writ
denied.
Footnote: 1 1 Mr. Joshi is not a party to the matter presently before this Court.
Footnote: 2 2 Mr. Zirkle drove a company car through his employment with Green King Company.
Footnote: 3 3 The transfer occurring six years prior to the initiation of this action was not a pivotal issue in the determination of ability to pay.
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