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Saturday, December 9, 2023
Courthouse News Service
Saturday, December 9, 2023 | Back issues
Courthouse News Service Courthouse News Service

Contempt Order Against Divorce Lawyer Annulled

(CN) - A 75-year-old divorce lawyer can't be held in contempt for failing to pay $10,000 in discovery sanctions, a California appeals court ruled, because the lower court failed to follow the correct contempt procedures. "What happened here did not measure up to that law, not by a long shot," Justice James Richman wrote.

Attorney Henry James Koehler, who failed to return confidential documents in a divorce case and then refused to pay $10,000 in sanctions, was not afforded due process, the 1st District Court of Appeal ruled.

Koehler was twice sent to jail for violating the protective order requesting the return of the documents, serving two five-day sentences, but he still refused to pay the sanctions.

He then petitioned for a writ of habeas corpus.

The appeals court ruled that the superior court failed to follow contempt law and proceedings. The lower court made numerous errors in Koehler's third contempt hearing, the appeals court ruled, including failing to file an affidavit, personally serve a contempt citation or issue a valid order of indirect contempt, and denying Koehler's claim for triple jeopardy, determining that each day he didn't pay the $10,000 fine was a new contempt.

The superior court should have carefully read contempt law before sending Koehler to jail, Richman wrote.

Also, the third parties who initiated the contempt proceedings failed to meet their burden of showing that Koehler lacked the ability to pay the sanctions. Koehler was appointed a court attorney after he claimed he was sick and received "very, very little" income from his legal practice.

"One of the many inexplicable aspects of this case is how a person deemed sufficiently impecunious to be entitled to appointed counsel can be held in contempt and incarcerated for failure to pay a $10,000 fine," Richman wrote. In granting Koehler's habeas petition, the court annulled the contempt order, "bringing an end to a most unfortunate chapter in this family law saga."

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