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Sweringen v. Sweringen

Decided: March 4, 1955.


Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.


[34 NJSuper Page 396] Appellant Katz, a member of the bar of this State, was convicted of criminal contempt in the

Chancery Division of this court and sentenced to four months in the Bergen County Jail. He appeals, urging: (1) that the trial court lacked jurisdiction to hear the matter and that he was deprived of procedural due process, (2) the proof was not sufficient to establish his guilt beyond a reasonable doubt, and (3) the action of the court in deferring the sentence for 21 days after the determination of guilt invalidated the judgment.

Charles F. Van Sweringen sued his wife, Katherin T. Van Sweringen, for divorce on the ground of adultery. Dr. Milton G. Abarbanel, a friend of the defendant Katz, was named a corespondent. He intervened in the action but through another attorney. At the conclusion of the trial of the matrimonial cause on April 21, 1954 decision was reserved. On May 25, 1954 an opinion was filed which declared that the charge had not been established.

A short time thereafter information came to the attention of the trial judge, apparently from the prosecutor's office of Bergen County, pointing to possible improper conduct on the part of Katz and the official reporter of the court with respect to the case. Immediate arrangements were made for the appearance before the court on June 30, 1954 of Dr. Abarbanel, his wife Zelma, Katz, and representatives of the prosecutor's office and of the Ethics and Grievance Committee of the Bergen County Bar Association.

The record indicates that on this day an informal investigation of the matter was conducted in the judge's chambers, and that statements of the various interested parties were taken stenographically. At the outset of the inquiry Katz was not present. Dr. Abarbanel was sworn and after answering some preliminary questions put by the court, refused to give further information under oath, saying that his attorney (who was not in attendance) had advised him not to discuss the matter in his absence. A telephone call was made to the attorney, following which the court, who obviously was anxious to get to the bottom of the matter without delay, allowed him to proceed as an unsworn witness. Thereafter no participant in this preliminary phase of the matter was sworn.

Dr. and Mrs. Abarbanel gave statements in question and answer form to the effect that Katz had told them that for $700, later increased to $1,500, a favorable decision could be obtained through influence possessed by a person close to the court. Their impression was that the person referred to by Katz was the court reporter who had taken the testimony in the divorce case.

Upon the completion of their statements they were dismissed. Katz was brought into chambers and told specifically by the court what the Abarbanels had said about his conduct. In addition, the court read similar portions of another statement of Dr. Abarbanel which was produced by the assistant prosecutor. Katz denied their assertions.

It appears also that the unsworn testimony given on this occasion by the Abarbanels was transcribed and that on July 6 Katz was permitted to examine it in the prosecutor's office.

On July 13 an order was issued by the court requiring Katz to show cause on July 27 why he should not be adjudged in criminal contempt. The order recited:

"It appearing to the satisfaction of the court, from statements made to it by Milton G. Abarbanel and Zelma Abarbanel, and L. Edward Katz, that while the above entitled proceeding was awaiting determination by this court, an effort is alleged to have been made by L. Edward Katz, Esquire, a member of the Bar of this State, who did not represent any of the parties to this proceeding, to influence Milton G. Abarbanel and Zelma Abarbanel to pay to the said L. Edward Katz the sum of $700, and which amount was later on increased to $1,500 for the purpose of obtaining a judgment favorable to the said Milton G. Abarbanel through influence alleged to be possessed by David Friedman, an official court reporter employed by the said court, all of which would tend to impugn the honor and dignity of the court, and seriously prejudice the due and orderly administration of justice; and it further appearing from the information supplied to the court that it is alleged that the said L. Edward Katz purported to have information concerning the proposed decision of this court in the premises, and the court having duly considered the premises; * * *."

Thereafter followed the mandate to show cause.

Trial of this charge took place on July 27, 1954 and on August 9 Katz was found guilty. Sentence was "deferred"

until August 30, when the imprisonment already referred to was imposed in open court.

It is not disputed that the conduct charged against defendant constitutes criminal contempt. Such willful acts or conduct plainly obstruct or tend to obstruct the course of justice. In re Jeck , 26 N.J. Super. 514 (App. Div. 1953), certification denied, 13 N.J. 429 (1953); In re Caruba , 139 N.J. Eq. 404 (Ch. 1947), affirmed 140 N.J. Eq. 563 (E. & A. 1947), petition denied 142 N.J. Eq. 358 (Ch. 1948), certiorari denied 335 U.S. 846, 69 S. Ct. 69, 93 L. Ed. 396 (1948); In re Merrill , 88 N.J. Eq. 261 (Prerog. 1917); Fox v. United States , 77 F.2d 210 (4 Cir. , 1935), certiorari denied Ex parte Fox , 298 U.S. 642, 56 S. Ct. 935, 80 L. Ed. 1374 (1935). However, it is urged strenuously as the first ground for reversal that the proceedings were fatally defective and that Katz was deprived of due process because they were not initiated by sworn affidavits or sworn testimony, nor was the order to show cause issued on such proof.

A number of texts and authorities are cited for the proposition that when a contempt is not in the presence of the court, which is the situation here, a sufficient initiatory affidavit or sworn statement is a jurisdictional prerequisite to the prosecution of the offense. 17 C.J.S., Contempt , § 72; 12 Am. Jur., Contempt , § 68; Annotation , 118 A.L.R. 155, 156; Charles Cushman Co. v. Mackesy , 135 Me. 490, 200 A. 505, 118 A.L.R. 148 (Sup. Jud. Ct. 1938); In re Wood , 82 Mich. 75, 45 N.W. 1113 (Sup. Ct. 1890). We agree that when the drastic power of the court to deal with a constructive contempt is called into action, the better practice is to set the matter in motion by sworn statements in testimony or affidavit form. See Swanson v. Swanson , 8 N.J. 169 (1951); Nussbaum v. Hetzer , 1 N.J. 171 (1948); Rodberg v. Lamachinsky , 74 A. 44 (Ch. 1909, not in official reports); Kocher, Chancery Practice 463 (1913); Kocher & Trier, New Jersey Chancery Practice and Precedents , § 1658 (1924). But previous to the adoption of the new rules, it could not be said that a settled or uniform practice existed for such cases in New Jersey and that the jurisdiction of the

court to act depended upon a rigid adherence thereto. Attorney-General (Hudson County Quarter Sessions) v. Verdon , 90 N.J.L. 494 (E. & A. 1917), reversing In re Verdon , 89 N.J.L. 16 (Sup. Ct. 1916); In re Cheeseman , 49 N.J.L. 115 (Sup. Ct. 1886). Contempt proceedings are sui generis (Conley v. United States , 59 F.2d 929, 935 (8 Cir. , 1932); 12 Am. Jur., Contempt , § 66, p. 433; Cyc. of Fed. Procedure (3 d ed. 1953), §§ 87.02, 87.29), and in the absence of a specific rule regulating the mode of initiating them no particular form of procedure is necessary. Cooke v. United States , 267 U.S. 517, 45 S. Ct. 390, 69 L. Ed. 767 (1925); Camarato v. United States , 111 F.2d 243 (3 Cir. , 1940), certiorari denied 311 ...

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