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Diamond v. Diamond

Contempt order against counsel was civil, not criminal, where sole purpose was to compensate party for costs incurred to enforce prior order requiring attorney to replace lost documents; thus attorney was not entitled to due process necessary for conviction of criminal contempt.

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OPINION

�1 Dorothy Phillips (Phillips) appeals from the entry of the trial court’s order of contempt. Phillips contends that the trial court’s order constituted an order of criminal rather than civil contempt and that the trial court did not provide her with due process required for a criminal contempt conviction. Phillips also contends that the evidence is not sufficient to support a finding of criminal contempt. Upon review, we conclude that the order was one of civil contempt and that the trial court did not abuse its discretion in finding Phillips in contempt and awarding attorney fees. For the following reasons, we affirm the trial court’s order.

�2 Phillips was counsel for Sandra Diamond (Wife) in the underlying contentious divorce action between Wife and Harold Diamond (Husband). In April 1999, Husband produced his original checks and bank statements for several calendar years as part of discovery in the underlying divorce action and delivered the documents to Phillips’ office. A few weeks after delivery of the documents, Phillips informed Husband’s counsel that her office’s cleaning staff had accidentally discarded the documents from 1997. Husband demanded that Phillips pay for Husband’s bank to produce copies of the documents. Husband’s counsel then filed a Petition for Special Relief when Phillips did not comply with the request. The trial court convened a hearing and on May 4, 1999, ordered Phillips to order and pay for the replacement of the lost financial documents. Husband’s attorney did not receive the documents and so filed a Petition for Contempt on September 17, 1999.

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