I respectfully dissent from the decision of the majority concerning the first and second assignments of error.
The trial court's order to sell Quisenberry's house deprived him of a substantial property right. That order constitutes a modification of the prior divorce decree, and Quisenberry was entitled to notice of the prospect of that additional relief and an opportunity to be heard concerning it.
Neither Innskeep's September 21, 1991 motion for contempt nor the trial court's recitation in its November 18, 1991 entry that it might order Quisenberry to sell his house should he fail to purge his contempt constitutes proper notice. The court may order Quisenberry to purge himself of the contempt, but it may *Page 350 not order his house sold to cure the contempt without notice to him of the premises that occasioned it. The court found those premises in the subsequent affidavit of Innskeep, which it considered ex parte. This sequence of events fails to comport with due process, which requires that a person whose rights are to be adjudicated be given notice of any proceeding to do that and an opportunity to be heard concerning the causes alleged and the relief requested.
It may be that Quisenberry cannot show that he could have cured his contumacious conduct otherwise when he allowed this debt to accrue. However, he is entitled to a right to do so. More important, his failure to demonstrate on appeal how he could do so cannot make this fundamental due process error harmless for lack of prejudice.
I would reverse and remand.