concurring in part and dissenting in part. I agree that Judge Keith abused his discretion in using criminal contempt as a penalty for Mr. Ivy’s failure to pay Ms. Helen Walton’s attorney’s fees and costs as Rule 11 sanctions. However, the majority court is simply wrong in concluding that “Mr. Ivy received his day in court on his defense of inability to pay [the sanctions].” Ivy did have an abbreviated hearing on criminal contempt, but, as acknowledged in the majority opinion, the judge erred in this respect because criminal contempt is not an available remedy to enforce Rule 11 sanctions.
The majority opinion then directs that this case be remanded for further proceedings which may include civil contempt. If the majority opinion merely ended at this point, by remanding this case for further proceedings, I could agree with that part of this court’s ruling, too, since it would be in accord with this court’s long-established law. In other words, because this court agrees that the circuit judge erred, the general rule is to remand common law cases for a new trial unless the case has been fully litigated and should be dismissed. Hinton v. Bryant, 232 Ark. 688, 339 Ark. 621 (1960). As indicated in Hinton, owing to the error indicated, the case must be retried, and upon a new trial, any deficiency of proof must be supplied. Follett v. Jones, 252 Ark. 950, 481 S.W.2d 713 (1972).
However, I seriously disagree with the majority when it decides that it is the trial court’s duty to serve Mr. Ivy with a new notice, giving him a reasonable time to make a defense under Ark. Code Ann. § 16-10-108(c) (Repl. 1999). In making this statement, the majority agrees with Ms. Helen Walton’s position at the prior contempt hearing that, after she filed a “Notice of NonCompliance,” alleging Mr. Ivy had failed to reimburse her, Ms. Walton had no further duty or burden in this matter. In short, the majority submits that, on remand for a civil contempt hearing, it is the trial court’s obligation to “notice” Mr. Ivy, giving him reasonable time to prepare a defense.
First, it is all too clear that Ms. Walton may not merely file a pleading (notice or motion), alleging Mr. Ivy to be in civil contempt and claiming he has failed to reimburse her attorney’s fees and costs without then requiring her later to present proof to support her claims. Stated differently, it is elementary that Ms. Walton must offer proof of Mr. Ivy’s failure to pay; after doing so, Mr. Ivy must then show his inability to pay.
The majority court cites the case of Hickinbotham v. Williams, 228 Ark. 46, 305 S.W.2d 841 (1957), for the proposition that “contempt is a matter between the judge and the litigant, and not between the two opposing litigants.” The Williams court, however, made this statement merely to recognize that “third parties” who were not the original plaintiffs, had been prejudiced by the defendant’s (Hickinbotham’s) violation of the court’s injunction, and that those parties could enforce the court’s order, and not just the original plaintiffs. Even in Williams, the “third parties,” who were not the original plaintiffs, petitioned the trial court for a show cause order requiring the defendant Hickinbotham to appear and show why he should not be held in contempt; at the hearing, those moving parties then presented testimony that Hickinbotham had violated the trial court’s injunction.
Of course, in this case, no third parties or other litigants are involved. Instead, it is only Ms. Walton who charged that Mr. Ivy had not reimbursed her attorney’s fees and costs as previously ordered, and it is her initial burden to prove this charge. In a proceeding for indirect contempt, like the one here, it is not proper for the trial judge to initiate his own investigation, or act on the presumption that a party (Ivy) has violated a court order and then notify the party to appear to show cause why he should not be held in civil contempt. To condone such a procedure would be nothing short of adopting an inquisitorial system whereby the judge conducts the trial, determines what questions to ask, and defines the scope and the extent of the inquiry. That is not our system.1
Because this case is civil in nature and the action is brought to assure Ms. Walton’s attorney’s fees and costs are reimbursed, she clearly has the burden to show that she has not been paid. Once Ms. Walton offers this proof and is subject to cross examination on this issue, Mr. Ivy must show his inability to pay. The proof required in a civil action for contempt is a preponderance of the evidence. See Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992); Dennison v. Mobley, 257 Ark. 216, 515 S.W.2d 215 (1974).
In conclusion, I believe it is necessary to point out that some of Mr. Ivy’s remarks at the scheduled hearing on March 7, 2002, bordered on contempt when he and the trial judge entered into an exchange of comments, some of which are set out in the majority opinion. If the trial judge had found Mr. Ivy in direct contempt based on disrespectful or insolent behavior, I likely would have affirmed such a finding. By the same token, it appears that some of the unfortunate and unnecessary colloquy between the court and Mr. Ivy could have been avoided if the court had held a formal hearing by swearing in the witnesses, taking testimony, and allowing the litigants to make their arguments. Here, no witnesses were sworn, nor did they testify. Instead, the hearing was reduced to unfounded and witty remarks which resulted in a test of wills between the judge and Mr. Ivy. While this court remands this case for further proceedings, hopefully, the rules of procedure, evidence, and the law will govern and bring needed structure to a very serious matter.
For the above reasons, I concur in part and dissent in part.
Imber, J., joins this opinion. Arnold, C.J., not participating.In response to my opinion, the majority has added a footnote suggesting it is undisputed from the record that, at the time of the appeal, Mr. Ivy had not paid Rule 11 sanctions. Of course, no formal hearing was conducted to establish this fact, but even if such fact was true, this case on remand involves civil contempt, which is a different proceeding, and, at this time, no one knows or has alleged that Mr. Ivy has not paid any or part of Ms. Walton’s attorneys fee’s and costs. Again, it is not the judge’s role or burden to sua sponte issue orders alleging noncompliance and to assume the role of a party litigant in these matters.