SEPTEMBER 2006
Family Law
ORDER IN THE COURT
By Mary Anne Decaria, Esq.
Many articles have been written about the lack of civility in the legal profession. This is not one of them. It is, however, an examination of a problem plaguing the court system today, particularly the Family Court: cmpliance with and enforcement of the rules of procedure. Houston v. Eighth Judicial District Court, 122 Nev. Adv. Op. 51 (2006) is a classic example of what may go wrong when an attorney shows up in court unprepared to proceed on his own motion and in violation of the rules of procedure.
Joseph Houston represented a wife in an action for divorce. The husband represented himself. On behalf of the wife, Mr. Houston filed a motion for temporary support and attorney fees, which is routine in most divorce actions, but he did not file the wife’s affidavit of financial condition with the motion, which is mandatory under EDCR 5.32. Failure to file that affidavit “may be construed as an admission that the motion is not meritorious and as cause for its denial. Attorneys fees and other sanctions may be awarded for an untimely, fraudulent, or incomplete filing.” EDCR 5.32(a).
On the day of hearing of his motion, Mr. Houston and his client showed up for court without having filed the wife’s affidavit. The husband also came to court unprepared, having filed neither his opposition to the motion for support nor his affidavit of financial condition. The judge was annoyed and began the hearing by lecturing Mr. Houston on the rules. Things went downhill from there -- so much so that by the end of the 10-minute hearing, the judge fined the petulant attorney $500, ordered the deputy to remove him from the courtroom in handcuffs and to place him in custody for the remainder of the day.1
Following the summary order of contempt, the district court issued its written order:
On October 5, 2005, a hearing was held in this case with the Plaintiff being present and represented by her attorney, Joseph W. Houston, Jr., and the Defendant being present in proper person. After inappropriate remarks by attorney Houston and an admonishment by the Court, and further disparaging comments by attorney Houston, it is
ORDERED that attorney, Joseph W. Houston, Jr., is sanctioned $500 for his disrespectful conduct towards the Court in direct contempt thereof, such sum to be paid within thirty (30) days from October 5, 2005 to the Clark County Law Library, and a copy of the receipt submitted to the Court no later than said date.
Mr. Houston challenged the order by Petition for Writ of Mandamus.
Summary punishment for direct contempt is governed by NRS 22.030(1) which requires the court to issue an order that (1) states the facts constituting the contempt; (2) finds the person guilty of contempt; and (3) prescribes the punishment. The first question before the Supreme Court was whether the lower court’s order of summary contempt may be oral or whether it must be written.
The Nevada Supreme Court found the phrase in NRS 22.030(1), “enter an order,” ambiguous as it could mean either “entry of a written order, or it could mean entry of the court clerk’s minutes of the district court’s oral decision.” Id. at 14. Finding NRCP 58(c) instructive, the Court determined that since only written judgments may be “entered,” a written order of contempt must be entered in follow up to the court’s verbal order of contempt.
This interpretation comports with common sense and the purpose of summary direct contempt. When faced with disruptive, contemptuous conduct during court proceedings, a judge must have the power to restore order immediately by issuing a verbal contempt order. It would be absurd to read the statute to require that, before the judge could enforce order in the courtroom, the judge must briefly recess the proceedings to prepare a written order. But written order nevertheless serves valuable purposes: it facilitates our review, and it helps to ensure that the district court’s contempt power is used with care and circumspection. We therefore conclude that while the district court’s verbal contempt order is immediately enforceable, a written order including the statute’s required elements must be promptly entered. Id. at 15, 16.
Having determined that the order must be written, the second question before the Supreme Court was: what the order must contain. In answer, the Court held that the written order following summary contempt must state in detail the specific conduct of the contemnor which resulted in the finding of contempt. In the instant matter, the Court found the lower court’s written order inadequate, as it was merely conclusory and did not recite Mr. Houston’s specific comments and/or non verbal acts such as his body language, tone or volume of voice which the court found contemptible. Because this was a case of first impression, the Supreme Court directed the District Court to enter its amended order describing with specificity the conduct constituting the contempt.
This case should never have gone as far as it did. The District Court could have spared time and the financial and emotional cost to the parties exacted by the ugly interchange between court and counsel at hearing and the year-long petition for writ if procedures were in place to enforce the rules before appearances were made. Before anyone appeared for oral argument on the temporary support motion, better procedure could have brought the defective filing to the court’s attention in time for issuance of an order vacating the hearing date and telling counsel that his failure to timely file his client’s affidavit of financial condition was not acceptable, and would result in denial of the motion and imposition of sanctions under EDCR 5.32(b) if the affidavit were not filed by a date certain. Since the husband neither filed an opposition to the motion nor his affidavit of financial condition, the order could additionally instruct him of the consequences under EDCR 5.32 if he did not file the appropriate documents within the time established by the rules.2 Instead of early intervention, however, the matter proceeded to hearing, resulting in an uncivil exchange between counsel and court and the intercession of the Nevada Supreme Court.
The rules of procedure are intended to provide an efficient methodology to streamline litigation and reduce the time, effort and cost – both emotional and financial – to all involved. If an attorney does not follow the rules, it is the judge’s job to enforce them – sooner, rather than later. In a proceeding for interim support, the court cannot effectively rule if s/he does not have the relevant financial data before him/her. Why wait until hearing to get upset about it when an earlier order could circumvent the problem?
What was the effect on the wife, who simply wanted financial help from her husband, as she watched her lawyer escorted from the courtroom by a deputy? What was the effect on the pro-per husband who either did not understand what the law required of him or was hoping to delay imposition of a temporary order of support? What does this case do to the public’s perception of our already beleaguered family courts?
Instead of becoming an anecdote in the annals of family court lore, we should examine why this case happened and what we can do to prevent similar occurrences. Is the Family Court too encumbered by an impossible caseload to operate more efficiently? Does our system of electing judges cause a judge to think twice before enforcing the rules for fear of losing the financial support of lawyers at election time? Are the internal case-handling procedures of our courts outdated or inadequate? Is it a matter of institutional inertia– it has always been done this way, so no one asks why or whether or not there is a better way? Why do some lawyers treat their clients as pawns and litigation as a game? If lawyers do not respect the court, why should their clients or the public? What can we do to improve the standards of practice, thereby elevating the performance of lawyers and judges?
Mention must also be made of Mr. Houston’s assertion that an attorney is not responsible for his/her client’s affidavit of financial condition. Regardless of who prepares the financial affidavit, whether it be the attorney, his/her client or someone else, let us be clear: all documents presented to the court, including financial affidavits, are the responsibility of the attorney. The client signs an affidavit under penalty of perjury. Inaccurate or incomplete information may lead to sanctions, charges of perjury, or may bias the court against the veracity of the client, lead to dismissal or other unhappy results. The job of the lawyer is to know the law and the rules3 and to protect his/her client’s interests intelligently, thoughtfully and respectfully. When lawyers do their job right, judges will too.
1Apparently, Mr. Houston was neither handcuffed nor jailed, but was fined $500, payable to the Clark County Library fund.