Kunzler v. O'DELL

BENCH, Judge

(dissenting in part):

I respectfully dissent from the affir-mance of the trial court’s contempt order because the trial court did not make the requisite findings and conclusions.

In Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), the supreme court unequivocally required that trial courts make explicit findings on each of the following substantive elements of contempt: “the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so. These three elements must be proven beyond a reasonable doubt in a criminal contempt proceeding.” Id. at 1172 (citations omitted); see also State v. Hurst, 821 P.2d 467, 471 (Utah App.1991). This court recently made clear in State v. Long, 844 P.2d 381 (Utah App.1992), that “the criminal contempt power should only be used to sanction deliberate contumacious acts or omissions. As the United States Supreme Court has observed: ‘The very amplitude of the [contempt] power is a warning to use it with discretion, and a command never to exert it where it is not necessary or proper.’ ” Id. at 387 (quoting Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 451, 31 S.Ct. 492, 502, 55 L.Ed. 797 (1911)). My colleagues disregard this admonition by affirming the criminal contempt order in this case even though the trial court did not make the explicit findings required by Von Hake.

There is no explicit finding by the trial court in the record that Kunzler “knew” what was required, i.e., that he could not dump onions on the road. At best, the trial court found that he “should have known” that he could not dump onions on the road. Such a finding imputes knowledge to Kunz-ler. This court expressly held in Long that a negligent failure to comply with a court order does not constitute contempt. Id. Imputed knowledge is an insufficient mens rea for criminal contempt. See Long, 844 P.2d at 386-87 (trial court erred in finding contempt when attorney was confused about how to comply with the rules, even though the rules were clear). Kunzler asserts that he did not understand the judge’s instruction until he received it in writing, which was after the violation for which he was cited. If that is so, then he did not actually “know” at the time he dumped the onions that he was violating the order.

The majority opinion erroneously focuses on the clarity of the trial court’s oral instructions in court. The issue is not the clarity of the trial court’s order that Kunz-ler was awarded only a prescriptive easement and not a fee simple. The issue is the clarity of Kunzler’s actual understanding of what was required of him. See Long, 844 P.2d at 387. Given the anxiety and commotion that accompanies a trip to court, it is quite possible that Kunzler did not understand everything the judge said from the bench. Kunzler is a farmer, not a lawyer. Yet the main opinion imputes to him a lawyer’s understanding of the trial court’s instruction — taken from a cold record, after the fact. The majority refers to *278the fact that Kunzler’s lawyer was at the hearing and could have clarified the trial court’s ruling if Kunzler did not understand it. There is no evidence in the record, however, that the attorney ever provided Kunzler with any explanation. It would be absurd to hold that Kunzler may be held in contempt for not acting in accordance with his lawyer’s unexpressed knowledge and understanding of the trial court’s ruling. Given the complexity of court proceedings and Kunzler’s lack of legal training, there remains a reasonable doubt as to whether Kunzler himself actually understood the trial court’s oral instruction when it was initially given from the bench. The trial court never found to the contrary.

No matter how strongly the trial court or my colleagues may believe that Kunzler should have known that he was violating a court order, the test set forth in Von Hake is whether Kunzler in fact did know he was violating an order. By affirming the trial court’s contempt order when the trial court did not make a finding that Kunzler actually knew what was required, the majority eliminates the need for an express finding on the knowledge element. In other words, the majority effectively, and imper-missibly, overturns the supreme court’s test as stated in Von Hake. Kunzler was held in contempt without any assurance that the trial court actually found beyond a reasonable doubt that he knew what was required of him and that what he did was a violation of the court order and an obstruction of the judicial process. See Long, 844 P.2d at 387 (contempt under section 78-32-1(3) requires a showing that defendant “intended his acts to obstruct the judicial process”).

Even if the trial court’s cryptic findings could be stretched far enough to constitute the requisite findings required in . Von Hake, they are nevertheless inadequate for review because they are not “sufficiently detailed and [do not] include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Rucker v. Dalton, 598 P.2d 1336, 1338 (Utah 1979). In the field of criminal contempt, facts pertaining to knowledge, ability, and intent are evasive and may require multiple subsidiary factual findings to truly capture them. This court recently held in Long that an express finding that a contemnor acted willfully, without subsidiary factual findings to support that conclusion, was insufficient and required reversal. 844 P.2d at 387. In affirming the contempt order in the present case, the majority opinion does not point to any subsidiary findings that disclose the steps taken by the trial court in reaching its ultimate findings. Instead, the majority opinion independently reviews the record, weighs the evidence, evaluates witness credibility, draws its own conclusions, and effectively creates its own subsidiary findings. Such appellate court factfinding is clearly impermissible. “Our duty is to review the findings actually made by the trial court, not to make our own findings. In effect, the majority is sitting as both the trial court and the appellate court by making its own findings and then affirming them.” See State v. Mirquet, 844 P.2d 995, 1005 (Utah App.1992) (Bench, P.J., dissenting) cert. granted, No. 930098-SC (Utah May 19, 1993).

The lack of explicit findings on each requisite element of contempt, and the lack of supporting subsidiary findings, cannot be lightly dismissed — especially when criminal contempt and incarceration are at issue. It very well may be that the trial court had adequate grounds for issuing its contempt order. But until the trial court enters the requisite findings showing those grounds, the contempt order cannot stand. Von Hake, 759 P.2d at 1173.

Findings are not a mere formality, they are “an integral part of the logical process a tribunal must go through in reaching a decision.” Adams v. Board of Review of Indus. Comm’n, 821 P.2d 1, 7 (Utah App.1991). Consequently, when we vacate an order for inadequate findings and remand the matter, the trial court is not expected to make findings that simply “bolster” the previous decision. See Allred v. Allred, 797 P.2d 1108, 1112 (Utah App.1990); State v. Starnes, 841 P.2d 712, 716 (Utah App.1992) (hearing on remand not to be used to “bolster” trial court’s previous decision).

*279Once [a tribunal] attempts to state its findings, identify the applicable law, and articulate its logic, it may discover that critical facts are not properly before it, that the law is other than anticipated, or that its initial logic is flawed. In such situations; a result contrary to the initial conclusions of the [tribunal] may be dictated.

Adams, 821 P.2d at 7-8. Inasmuch as the trial court has not entered the requisite findings, only the trial court knows whether it followed Von Hake and actually found that Kunzler knew what was required. Unfortunately, given the majority’s ruling today, neither we nor Kunzler will ever know whether the trial court properly followed Von Hake.

I would reverse the contempt order and remand for entry of the explicit findings required by Von Hake and adequate subsidiary findings showing how the trial court reached those ultimate findings.