Dissenting. I respectfully dissent from the majority’s affirmance of the first and second contempt findings in this case. I believe these findings of contempt reflect an overly sensitive reaction by the Chancellor to reasonable efforts of appellant to try his case under very difficult circumstances.
BACKGROUND
To properly analyze this case, I believe a thorough scrutiny of the background is critical. As stated by Special Justice Kathleen V. Compton in her dissent in Skokos v. Gray, 318 Ark. 571, 886 S.W.2d 618 (1994):
The transcript and briefs in this case indicate very clearly that there is acrimony between Chancellor Gray and the attorneys for Ms. Skokos. In fact, Chancellor Gray has made comments on the evidence which indicate her displeasure with Ms. Skokos as well. She challenged Ms. Skokos’ credibility and she advised Ms. Skokos that she felt Mr. Skokos was “more conciliatory.” She commented that it appeared that Ms. Skokos “wanted everything” — specifically, custody of the parties’ minor child, possession of the marital home, and money. It is not mentioned by the Court that Mr. Skokos also wants those same things. In fact, in the majority of divorce cases, these are the common bones of contention and the reasons for litigation. They hardly were revolutionary requests. Chancellor Gray has a duty to be “fair and impartial” to all litigants in her Court, and her commentary is unnecessary. . . .
The Chancellor on more than one occasion refused to allow attorneys for Ms. Skokos to make a record. She interrupted during their questions and their arguments. She routinely reminded them of the time constraints being imposed by the Court. She engaged in a running commentary about their demeanor. She also testified from the bench during a recusal hearing.
Id. at 578, 886 S.W.2d at 622.
Additionally, the record reflects a number of rulings and decisions by the Chancellor which were questionable at best. I feel it is helpful to list some of these. First, the Chancellor refused to consider certain motions. Second, the Chancellor moved Ms. Skokos and her twelve-year-old daughter out of the marital home despite the admitted adulteries of Mr. Skokos, some of which occurred in the home, because of her “policy” of always removing the complaining party in a divorce from the home. Third, the Chancellor falsely accused appellant’s co-counsel of misconduct in preparing a precedent when the record reflects that his precedent either accurately reflected her rulings or at least was an honest interpretation of those rulings. Fourth, the Chancellor refused to set an amount of spousal support on the basis that there was no proof as to Mr. Skokos’ income despite the fact that the parties’ 1992 Income Tax Return was produced and Mr. Skokos’ 1993 income was stipulated. Fifth, the Chancellor ruled that Mr. Skokos did not need to provide support directly to Ms. Skokos because she was financially irresponsible. This ruling was based upon Ms. Skokos making a late payment of a water bill. Sixth, the Chancellor allowed the attorney-ad-litem for the minor child of the parties to serve both as a witness and an advocate or attorney. See Model Rules of Professional Conduct 3.7. Seventh, the Chancellor refused to disqualify the attorney-ad-litem and one of Mr. Skokos’ counsel despite the fact that the attorney-ad-litem was an associate or employee of one of this counsel’s law partners. See Model Rules of Professional Conduct 1.10; Cinema 5 Ltd. v. Cinerama, 528 F.2d 1384 (2nd Cir. 1976); United States v. Chesire, 707 F. Supp. 235 (M.D. La. 1989); First American Carriers v. Kroger, 302 Ark. 86, 797 S.W.2d 669 (1990).
The events of the August 25, 1994 hearing occurring prior to the alleged contemptuous statements are significant also. First, not only did the Chancellor refuse to hear the third motion to recuse, she even refused to allow a record to be made on her refusal and threatened to remove appellant’s co-counsel from the courtroom for asking to make a record. Those rulings were based upon the time constraints of the Court.
Second, although the hearing was for final arguments on custody, the Chancellor then allowed counsel for Mr. Skokos to have a rather lengthy hearing on his request to argue a change in temporary custody, despite these time constraints.
Third, the Chancellor implicitly denied having received a copy of the complaint filed against her. When questioned by appellant to the effect that he had sent a copy to her by runner, she then admitted receiving something that was termed a complaint, but said it was not from the Judicial Ethics Commission and therefore she did not know whether a complaint had been filed or not. This seems to be disingenuous, at best.
Fourth, the Chancellor then allowed Mr. Skokos’ counsel to have another rather lengthy hearing on his request to argue a change in temporary custody. Presumably these time constraints still applied.
If was at this point that the closing argument began which led to the first two findings of contempt. Although the Majority has quoted portions of the argument concerning these two findings, I believe it is helpful to state the whole discussion.
MR. HODGES: May it please the Court, Judge, this has been a long case and you are now hearing final arguments, as I understand it, on the custody issue.
I thought to myself, how can I convince you coming over here that Mrs. Skokos, a wife of 27 years, ought not to be parted from her 13 year old daughter and I am convinced that I can’t convince you because you have made up your mind previously.
I think you made up your mind when you removed this lady and that 12 year old daughter at the time from her marital —
THE COURT: Sir, now, if you —
MR. HODGES: — home on Edgehill
THE COURT: — want to direct comments toward the Court’s action in this case you need to do it somewhere else.
MR. HODGES: Well, Your Honor, I am making my closing argument —
THE COURT: And if you want to summarize —
MR. HODGES: — and I think —
THE COURT: If you want to summarize —
MR. HODGES: — lam entitled to do that.
THE COURT: If you want to summarize your case then you may do so. Otherwise, you are going to have to stop or we are going to move on to another side.
MR. HODGES: I am entitled to make —
THE COURT: This is not your forum —
MR. HODGES: — my closing argument.
THE COURT: — to complain about how this Court has handled rulings. Now, if you want to summarize your evidence and present your final argument then you can present it. Otherwise, you are going to have to stop and we will move on to another party.
MR. HODGES: I am entitled, Your Honor, respectfully suggest to you that I am entitled to make my closing arguments.
You have given me — after 15 months in this case on custody you have given me ten minutes to summarize it and I think I am entitled to use those minutes however I so choose. Now, that is exactly what I think and I am going to continue.
Now, I —
THE COURT: You are in contempt, Mr. Hodges, and you are being assessed a $200.00 fine.
MR. HODGES: Your Honor, I am going to continue and —
THE COURT: — and it is due by 9:00 a.m. —
MR. HODGES: — you just have to —
THE COURT: I know — Mr. —
MR. HODGES: — you have to just find me in contempt.
THE COURT: First of all, Mr. Hodges, the Court is aware that you have a reporter who follows you apparently every day and who is here now and there is a camera.
The Court is aware that you are attempting to have this Court remove you so that you can cause some big media blitz. Now, if that is what you are asking for that is what the Court is about to do but you are going to have to be respectful when you are in here.
MR. HODGES: Your Honor, I am trying to be —
THE COURT: The Court has just assessed —
MR. HODGES: — respectful —
THE COURT: The Court has assessed a $200.00 fine. It is due by 9:00 o’clock in the morning. It has to be paid down in the Clerk’s office.
Now, if you have — if you want to summarize your evidence — you don’t get to use your time for closing arguments to criticize this Court’s rulings, Mr. Hodges. You can appeal and do that. That is not what the Court set aside the time for.
I know how you feel about the Court’s rulings and this Court does not have the time right now to sit and listen to every complaint that you have, Mr. Hodges.
If you want to summarize the evidence, you can do that. You can present any closing argument as to why this Court should award custody to your client.
If you want to complain about the Court’s actions then you said you filed the Complaint. You have the media waiting and you can also appeal. You have other remedies but your ten minutes here is not going to be allocated for that.
MR. HODGES: Is what you just said counted against my ten minutes?
THE COURT: You may proceed.
MR. HODGES: Is it counted against my ten —
THE COURT: You may proceed, Mr. Hodges.
MR. HODGES: — minutes?
In spite of what this Court has ruled in the past I think the real issues in this case are very, very clear.
Judge Dudley wrote an article in 1980 were he established four crucial points about child custody that I think still apply today, Judge Dudley, then Chancellor Dudley, now Supreme Court Justice Dudley and he talked about four issues. . . .
And the last thing is love and affection. Let’s talk about the first point. Mr. Skokos’ moral fitness. Now, where does that begin? That begins when he had sexual relations in their marital home — not in their martial home but in their marital bed.
Now, Judge, are you going to listen to me or are you going to —
THE COURT: That is $50.00, Mr. Hodges, and that .is also due in the morning by 9:00 o’clock.
MR. HODGES: Well, I would like for the record to show that —
THE COURT: A $50.00 fine.
MR. HODGES: — you are visiting with Billy the Bailiff.
THE COURT: That is another $50.00 fine so that is a total of $300.00 due at 9:00 o’clock in the morning.
You may proceed. (Emphasis added.)
LEGAL DISCUSSION
The Majority Opinion contains an excellent and very thorough discussion of the law of contempt in Arkansas. However, I believe it fails to recognize other principles and standards which should apply in reviewing a contempt finding. Contempt is an extraordinary power of the Court which should not be exercised except in cases where the necessity is plain and unavoidable. Freeman v. State, 188 Ark. 1058, 69 S.W.2d 267 (1934). An action taken which does not affect the administration of justice is not contemptuous. Norton v. Taylor, 299 Ark. 218, 772 S.W.2d 316 (1989).
The United States Supreme Court in the case of In re Little, 404 U.S. 553 (1972), stated, inter alia, as follows:
[T]he law of contempt is not made for the protection of judges who may be sensitive for the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. . . . Trial Courts . . . must be on guard against confusing offensives to their sensibilities with obstruction to the administration of justice. . . .
Id. at 555 (citations omitted).
Significantly, the court in Clark v. State, 291 Ark. 405, 725 S.W.2d 550 (1987), stated as follows:
[The contempt power] must never be used to place judges above the law. The vital public respect for and faith in judicial institutions will, we believe, be enhanced by the extent to which we are able to solve our problems with patience as opposed to pique, holding our power in reserve.
Id. 291 Ark. at 409-10, 725 S.W.2d at 553.
An attorney is not guilty of contempt because of making appropriate objections or exceptions. An attorney is not guilty of contempt by pressing a legitimate argument even though inadequacies in the actions taken by the Court are pointed out. An attorney is not guilty of contempt for attempting to clear up doubts or questions as to the Court’s ruling. 17 C.J.S. Contempt § 25(b) (1963).
Where a statement is susceptible to more than one construction, and might have been given an innocent construction, any contempt is purged by a disavowal as to contemptuous intent. Freeman v. State, supra.
Misunderstandings between the Court and counsel are not an appropriate basis for a finding of contempt. McCullough v. Lessenberry, 300 Ark. 426, 780 S.W.2d 9 (1989); Lessenberry v. Adkisson, 255 Ark. 285, 499 S.W.2d 835 (1973).
I.
The first finding of contempt is evidently based in part on the Chancellor’s opinion that the beginning of Mr. Hodges’ closing statement is a criticism of her prior rulings rather than summarization of evidence and in part upon the Chancellor’s feelings that he intended to continue criticizing her rulings.
These opening remarks made before the Chancellor first interrupted Mr. Hodges, are merely prefatory remarks outlining the progress of the case up to that day. Suffice it to say that opening remarks in many cases follow the same format.
Appellant seems to be requesting the Chancellor to step back and think about this issue with an open mind. Looking at her past rulings, this was certainly not an unreasonable request. However, we will never know for sure where counsel was headed with these prefatory remarks as he was cut off too quickly. In any event the remarks up to this point are by no means contemptuous. They are legitimate arguments even if they point out alleged inadequacies.
The issue then becomes what appellant meant when he kept telling the Court he intended to continue. The Chancellor obviously felt that appellant meant that he was going to continue to criticize her previous rulings.
There is nothing in the record to support this. Given the time constraints placed upon him in making this argument, appellant just as likely might have meant that he wanted to continue on with his closing argument, not that he intended to criticize the Chancellor’s previous rulings. We will never know for sure as the Court cut him off and did not inquire of his specific intent.
I do not believe this constitutes contempt. Appellant’s statements during this process are susceptible to two interpretations and are ambiguous. This is particularly true where counsel on at least two occasions during this discussion told the Court he was in fact trying to be respectful. Freeman v. State, supra. Furthermore, this appears to be a clear misunderstanding between counsel and the Court which will not support a finding of contempt. McCullough v. Lessenberry, supra; Lessenberry v. Adkisson, supra.
Third, it seems clear that counsel was trying to make an argument on the content and scope of closing arguments, but was repeatedly cut off by the Court before he could finish. The record is replete with incidents where the Chancellor refused to allow objections or allow Ms. Skokos’ counsel to make a record. This is one more. Counsel had a legal right to address the question of the propriety of his argument and make a record thereon.
Fourth, there is nothing in the record which reflects thqt any untoward interference with the administration of justice occurred.
Even though this was a closed hearing and no reporters or “laymen” were present, the Chancellor’s continued remarks (about media being in the hallway and suggestions that appellant had them there to criticize her) seem to indicate that the real problem was the Chancellor’s sensitivities to real or perceived criticism rather than appellant’s actions and statements in the Courtroom.
This sensitivity is underscored by her later finding that appellant was in contempt by making a statement as innocuous as his client was damned if she did and damned if she didn’t and also by the Chancellor’s continued assertions throughout the entire course of these proceedings that both counsel for Ms. Skokos were trying to goad her.
For all of these reasons, this is not contempt.
II.
Shortly into appellant’s argument, the Chancellor summoned a bailiff and evidently began talking to him. When appellant observed this, he asked the Chancellor if she were going to listen to him. Such a question could not possibly be contemptuous in and of itself. Moreover, it was necessary to make a record as to what was occurring. Had counsel not made this statement, the record would have been silent as to the fact that the Chancellor was discussing something with the bailiff. Counsel might very well have wanted to get this in the record as a potential ground for appeal. This seems to be noncontemptuous, not only because of the reasons stated in the Majority Opinion as to right of counsel to make a record, but also because it is noncontemptuous in and of itself.
CONCLUSION
An attorney has no right to be contemptuous to the Court because he is receiving incorrect, ill advised, or unfair rulings or scheduling. An attorney has no right to be contemptuous to the Court because the Court makes unfounded statements about himself or his client. An attorney has no right to be contemptuous merely because a hearing is closed and nonjudicial personnel are not present.
Nevertheless, a court must recognize the difference between forceful advocacy under difficult circumstances and contemptuous behavior. A court must recognize that making a record necessitates questioning a decision, and that is not contemptuous argument. A court must rise above its own sensibilities and not act out of personal pique or anger. A court should give some leeway to what is said in the heat of battle. A court should not make findings of contempt unless there is an interference with the administration of justice.
When looking at the record as a whole and in examining appellant’s comments in the context of the entire case, I feel that all of the findings of contempt should be reversed and dismissed.
Corbin, J., joins in this dissent.