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2004 OK 34
91 P.3d 651
Case Number: 97705
Decided: 05/18/2004


JENNIFER L. HENRY, Plaintiff/Appellant,
ARNOLD J. SCHMIDT, Defendant/Appellee.


¶0 In a custody modification proceeding, the defendant filed a motion for indirect contempt against the plaintiff. The district court found the plaintiff guilty of two counts of indirect contempt, fined the plaintiff $500.00 on each count, and sentenced the plaintiff to 15 days in the Osage County Jail on each count. The district court granted defendant's motion to assess attorney fees against the plaintiff. The Court of Civil Appeals affirmed the district court's judgment. This Court granted certiorari.


James R. Elder, Tulsa, Oklahoma, for the Appellant.
Patti J. Palmer & Lamirand, Pawhuska, Oklahoma, for the Appellee.



¶1 The issue before this Court is whether a sentence and a fine can be imposed for indirect contempt without allowing the accused to purge the sentence.


¶2 In the underlying proceeding to establish paternity, the court adjudicated Arnold Schmidt to be the father of his and Jennifer Henry's child (the child), awarded custody to Henry, and awarded visitation to Schmidt. Later Schmidt filed a motion to modify custody. A trial was set for April of 2001. After taking testimony for three days, the court continued the trial until 9:30 a.m. on May 15, 2001. When the parties appeared before the court on May 15, 2001, Henry requested a continuance. She requested that she be allowed to attend a ceremony at which the child was to receive an award. After Henry promised that she would return, the judge continued the trial until 1:00 p.m. About 12:45, Henry called the judge's bailiff stating that she had car problems between Hominy and Wynona and that she would be in court as soon as her car cooled. She said that she had spoken to a Wynona police officer about the car problems.

¶3 Schmidt filed a motion for contempt against Henry. In the motion, Schmidt asked that Henry be assessed attorney fees, that she be fined, and that the court impose a term of imprisonment. A hearing was held on the motion for contempt at which both Schmidt and Henry appeared.

¶4 Mr. Janeway, Henry's employer, testified that, on May 15, Henry returned to work, went to lunch with customers, and was at work all afternoon. Mr. Teal, the Wynona officer on duty, testified that he was the only officer on duty, that he patrolled the highway between Hominy and Wynona, that he did not remember assisting anyone with car problems, that no records indicated that he had assisted anyone, and that he did not recognize Henry. Schmidt's attorney could not find Henry when she traveled the road between Hominy and Wynona looking for her.

¶5 On May 16, the day that the trial was scheduled to reconvene, Henry's family called to say that she was ill. A doctor's office faxed the judge a statement that Henry could return to work on May 18, 2001. On May 18, 2001, Henry was served with notice that the trial was reset for May 24th and May 25th, 2001.

¶6 Schmidt hired private investigators to observe Henry's activities on May 23

¶7 On the afternoon of May 25th, Henry and the child returned to the camp site by boat. Henry retrieved a large bag of charcoal from under the motor home. The investigators' pictures of Henry confirm these activities. Even though Henry continued to maintain that she was ill on May 24th and 25th and that she was confined to bed for most of the time, her testimony about her activities was conflicting.

¶8 The court took judicial notice that Henry had failed to appear in court for previous hearings. Bench warrants were issued on several occasions because Henry had failed to appear in court. Further, Henry admitted that she failed to appear in court in a Tulsa County felony case.

¶9 The trial court found by clear-and-convincing evidence that Henry was guilty of two counts of contempt, ordered her to pay a $500 for each count, ordered her to serve 15 days in the Osage County Jail, and ordered her to reimburse Schmidt $3,000 in attorney fees. The Court of Civil Appeals affirmed. This Court granted certiorari.


¶10 The only issue preserved for this Court's review is whether the trial court erred in assessing a fine and ordering Henry to serve 30 days in the Osage County jail. Henry argues that she should have been allowed to purge the contempt, but since purge was impossible at the time of the contempt order, incarceration was unauthorized. Henry argues for a dichotomy equating criminal contempt with direct contempt and civil contempt with indirect contempt. A dichotomy which is inconsistent with Oklahoma's statutory scheme.

¶11 Contempt as civil and criminal was a concept of the common law distinguished by procedural differences.

¶12 The legislature divided contempt into direct and indirect.

¶13 The punishment for indirect contempt may be remedial to coerce the defendant's behavior, or it may be penal to punish the defendant for disobedient or disorderly behavior.

¶14 In the present case, the trial court ordered Henry imprisoned for 30 days total. The imprisonment was punitive with no right to purge and was within the trial court's statutory authority as was the fine.

¶15 Henry argues that she did not have timely notice that she might be imprisoned. This is simply not true. The application for contempt prays that Henry "be adjudged guilty of indirect contempt, and punished by fine or imprisonment, and [Schmidt] be awarded his reasonable attorney's fee and costs, and all other and further relief to which he may be entitled. . . ."

¶16 Henry relies primarily on Morgan v. National Bank of Commerce of Shawnee.

¶17 In Board of Governors of Registered Dentists of Oklahoma v. Cryan,

¶18 Even though a penal sanction may be imposed for indirect contempt, it may not be imposed absent federal constitutional protections.

¶19 Federal constitutional protections attaching to an indirect contempt proceeding wherein penal sanctions are imposed include the right to a jury trial

¶20 In the present case, Henry was not afforded the required constitutional protections before penal sanctions were imposed. There is no showing of a valid waiver of Henry's fundamental right to a jury trial. Further, the trial court based its decision on a clear-and-convincing evidence standard. The trial court was authorized to impose remedial or coercive sanctions with the right to purge based on a clear-and-convincing standard. Because penal sanctions were imposed, the burden of persuasion standard was proof beyond a reasonable doubt.


¶21 We hold when a trial court imposes a penal sanction in an indirect contempt proceeding, the defendant is entitled to the constitutional protections afforded in criminal proceedings. This holding does not apply to indirect contempt proceedings wherein only remedial or coercive sanctions are imposed and where the evidentiary burden of persuasion remains clear and convincing.


¶22 Watt, C.J., Hodges, Lavender, Hargrave, Kauger, Boudreau, Winchester, Edmondson, JJ., concur.

¶23 Opala, V.C.J., concurs in result.


1 In this context, to purge means to clear a contempt. Black's Law Dictionary 1111 (5th ed. 1979).

2 Harper v. Shaffer, 1988 OK 45, ¶ 2, 755 P.2d 640, 643-44 (1988) (Opala, J., dissenting); Ronald L. Goldfarb, The Contempt Power 49 (1963); see Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 444-45 (1911).

3 Watson v. State ex rel. Michael, 1989 OK 116, ¶ 5, 777 P.2d 945, 946-47.

4 Id.; Okla. Const. art. 2, § 25, Okla. Stat. tit. 21, §§ 565-67 (2001).

5 Okla. Stat. tit. 21, §§ 565-67 (2001).

6 Board of Governors of Registered Dentists of Oklahoma v. Cryan, 1998 OK 55, ¶ 7, 638 P.2d 437, 438.

7 Okla. Const. art. 2, § 25. Oklahoma's constitution does not prohibit a punitive sentence for indirect contempt. Cryan, 1998 OK 55 at ¶ 7, 638 P.2d at 438-39.

8 Okla. Const. art. 2, § 25.

9 Okla. Stat. tit. 21, § 565 (2001).

10 Id.

11 Id.

12 Hicks v. Feiock, 485 U.S. 624, 631-32 (1988); Goldfarb, supra note 1, at 56-58.

13 Okla. Stat. tit. 21, § 566 (2001).

14 Gompers, 221 U.S. at 442-43.

15 Id.; Goldfarb, supra note 1, at 57.

16 Okla. Stat. tit. 21, § 566(B)(1) (2001) (requiring the court to set a purge fee in cases "of indirect contempt for the failure to comply with an order for child support, other support, visitation, and other orders regarding minor children").

17 see Okla. Stat. tit. 21, §§ 565-67 (2001).

18 Id. at § 566.

19 1923 OK 240, 217 P. 388.

20 1981 OK 52, 638 P.2d 437.

21 Id. at 1981 OK 52, ¶ 7, 638 P.2d at 438-39.

22 Okla. Stat. tit. 21, §§ 565-67 (2001).

23 Gibbs v. Easa, 1998 OK 55, ¶¶ 12-13, 998 P.2d 583, 586-87. Henry's petition for certiorari did not raise the issue of whether attorney fees should have been awarded. Thus, the issue is not addressed here, and the part of the Court of Civil Appeals' opinion addressing the issue is left intact.

24 Hicks, 485 U.S. at 632.

25 Id. at 624

26 Id. at 639.

27 Id.

28 Id.

29 Id. at 637.

30 Id. at 637-38.

31 Id. at 637-38.

32 Okla. Const. art. 2, § 25; Okla. Stat. tit. 21, 567 (2001).

33 Hicks, 485 U.S. at 632.

34 Valega v. City of Oklahoma City, 1988 OK CR 101, § 5, 755 P.2d 118.

35 Id.; Taylor v. Illinois, 484 U.S. 400, 418 n. 24 (1988).

36 Hicks, 485 U.S. at 9. Article 2, section 7 of the Oklahoma's constitution provides:

No person shall be deprived of life, liberty, or property, without due process of law.

Due process protections encompassed within article 2, section 7 of Oklahoma's constitution are coextensive with those of its federal counterpart. Presley v. Board or County Comm'rs, 1999 OK 45, ¶ 8, 981 P.2d 309, 312. Therefore, in addition to article 2, section 25 of Oklahoma's constitution, article 2, section 7 provides a bona fide, separate, adequate, and independent ground for this Court's decision. see Michigan v. Long, 463 U.S. 1032, 1042 (1983).