THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Onopwi v. Aizawa ,
6 FSM Intrm. 537 (Chuuk S. Ct. App. 1994)

[6 FSM Intrm. 537]

TANGE ONOPWI,
Appellant,

vs.

SUSUMU AIZAWA,
Appellee.

CA APPEAL NO. 39

OPINION

Argued:  September 5, 1994
Decided:  October 21, 1994

BEFORE:
     Hon. Machime O'Sonis, Associate Justice, Chuuk State Supreme Court
     Hon. Yoster Carl, Temporary Justice, Chuuk State Supreme Court*
     Hon. Daniel Furrh, Temporary Justice, Chuuk State Supreme Court**

     *Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
     **Legislative Counsel, Chuuk State Legislature, Weno, Chuuk

APPEARANCES:
For the Appellant:     Thomas J. Schweiger, Esq.
                                    Micronesian Legal Services Corporation
                                    P.O. Box D
                                    Weno, Chuuk FM 96942

For the Appellee:      Hans Williander
                                    P.O. Box 389
                                    Weno, Chuuk FM 96942

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HEADNOTES
Appeal and Certiorari ) Standard of Review; Civil Procedure ) Injunctions
     Whether the lower court erred by issuing a preliminary injunction that did not require the return of funds obtained in violation of a TRO involves a trial court's exercise of discretion and is reviewed using an abuse of discretion standard. Onopwi v. Aizawa, 6 FSM Intrm. 537, 539 (Chk. S. Ct. App. 1994).

Appeal and Certiorari ) Standard of Review; Contempt
     Whether the lower court erred by not holding the appellee in contempt of court involves a trial court's exercise of discretion and is reviewed using an abuse of discretion standard.  Onopwi

[6 FSM Intrm. 538]

v. Aizawa, 6 FSM Intrm. 537, 539 (Chk. S. Ct. App. 1994).

Civil Procedure ) Injunctions
     Injunctive relief is an equitable remedy for which a court must use a balance-of-hardship test with a flexible interplay among four factors ) the likelihood of irreparable harm to the plaintiff without an injunction; likelihood of harm to the defendant with an injunction; plaintiff's likelihood of success on the merits; and the public interest.  Striking a fair balance between the two more important factors, the likelihood of harm to the competing sides, is largely a matter of the facts of each situation and is thus a matter peculiarly for the discretion of the trial judge.  Onopwi v. Aizawa, 6 FSM Intrm. 537, 539 (Chk. S. Ct. App. 1994).

Appeal and Certiorari; Contempt
     An appellate court cannot hold a party in contempt for violating a trial court's orders because his actions were not a violation of the appellate court's orders or done in the appellate court's presence.  Onopwi v. Aizawa, 6 FSM Intrm. 537, 539 (Chk. S. Ct. App. 1994).

Contempt
     Contempt is not a matter between opposing litigants; it is a matter between the offending person and the court, and the degree of punishment for contempt, if any, is within the sound discretion of the court.  Onopwi v. Aizawa, 6 FSM Intrm. 537, 540 (Chk. S. Ct. App. 1994).

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COURT'S OPINION
MACHIME O'SONIS, Associate Justice:
     This is an appeal from the entry of an interlocutory Order granting a Preliminary Injunction that did not require the Appellee to return Municipal Capital Improvement Project (CIP) funds that came into his control in violation of a Temporary Restraining Order.  We find no abuse of discretion and therefore affirm the lower court's orders.

I.  FACTS
     On November 10, 1989, a temporary restraining order (TRO) was entered against the Appellees, Susumu Aizawa, Chief Magistrate and Council Chairman of Tol Municipality, and Tol Municipality itself [referred to herein as Susumu].  The Appellants are certain former members of the Tol Municipal Council [referred to herein as Onopwi].  The TRO enjoined Susumu from spending or obligating the municipality's 1987-89 CIP funds before the Tol Municipal Council had decided how the funds were to be spent by legally enacting a budget ordinance.  On July 23, 1990, a similar order enjoined Susumu from spending the municipality's 1990 CIP funds before the council had decided their use.  Both orders were served on Susumu Aizawa.

     It was admitted by Susumu that certain of those CIP funds were in fact spent, while the orders were in effect.  The facts are not clear from the record, but it appears that as much as $280,000 of the enjoined CIP funds may have been received from the State and spent in violation of the order, some of them at Susumu's own store.  In October 1990, Onopwi filed a motion requesting that Susumu be held in contempt of court for violating the orders.  After a hearing, the trial court entered the Preliminary Injunction appealed from.  Onopwi contends the trial court abused its discretion when it granted the Preliminary Injunction but did not require the return of the funds obtained in violation of the TRO.  Onopwi also contends the lower court abused its discretion when

[6 FSM Intrm. 539]

it did not issue a stronger sanction against Susumu for violating the court's orders.  The remedy appellant seeks is for this Court to issue a contempt order.

II.  ISSUES
     The issues presented require this Court to decide:  1) Whether the lower court erred by issuing a Preliminary Injunction that did not require the return of funds obtained in violation of a TRO; and 2) Whether the lower court erred by not holding the Appellee in contempt of court.  Both of these issues involve a trial court's exercise of discretion and we review such issues using an abuse of discretion standard.

III.
Injunctive Relief
     Temporary restraining orders, preliminary injunctions and other forms of injunctive relief are equitable remedies.  See Election Commissioner v. Petewon, 6 FSM Intrm. 491, 499 n.8, 1 CSR 5, 11 n.8 (Chk. S. Ct. App. 1994).  In making the determination whether or not to grant injunctive or other equitable relief, a court of equity must use a balance-of-hardship test.  Maryland Undercoating Co. v. Payne, 603 F.2d 477, 481 (4th Cir. 1979).  This decision "should be based upon a `flexible interplay' among all factors to be considered . . . ."  Id.  The four most common factors to be balanced are:  "the likelihood of irreparable harm to the plaintiff without an injunction; likelihood of harm to the defendant with an injunction; plaintiff's likelihood of success on the merits; and the public interest."  Id.   The two more important factors in the balance are the likelihood of harm to the competing sides.  Id.1  The striking of a fair balance between the parties is largely a matter of the facts of each situation.  Thus the "framing of an injunction appropriate to the facts of a case" is a "matter peculiarly for the discretion" of the trial judge.  J.M. Fields of Anderson, Inc. v. Kroger Co., 330 F.2d 686, 687 (5th Cir. 1964).

     In applying these factors to the preliminary injunction issued, we note that the trial court stated it had "taken into consideration the amount involved and the difficulty of returning the money" when it declined to require the funds be returned. The trial court did order that none of the goods purchased with the funds could be released until the matter was resolved.  Clearly, the trial court engaged in a balancing of the hardships between the parties in its framing of the order for injunctive relief.  The trial court heard the evidence, assessed the damage and reached what appeared to it as a fair balance in the situation.  We find no abuse of discretion in the balance the trial court reached.

Contempt
     Onopwi complains that the trial court abused its discretion when it did not issue a stronger sanction against Susumu for violating the court's orders.  He now asks this Court to impose sanctions for contempt.

     First, this Court is not in a position to hold Susumu in contempt as his actions were not in the presence of the Appellate Division nor a violation of an order of the Appellate Division.  To hold an individual in contempt under these circumstances, without a trial, would violate the individual's

[6 FSM Intrm. 540]

right to due process.

     It is true that ignoring a court order is a serious offense, certainly not one to be taken lightly.  Susumu understood the order, but he ignored it.  He should have obeyed it, and his disobedience is a serious matter which certainly could have resulted in severe punishment for contempt, including, in an appropriate case, imprisonment.

     But, we must point out that contempt is not a matter between opposing litigants.  17 Am. Jur. 2d Contempt 2, at 6 (1964).  Instead, it is a matter between the offending person and the court.  Id.  Additionally, the degree of punishment for contempt, if any, is within the sound discretion of the court.  Id. 105, at 91.

     A trial judge has a great deal of discretion in deciding whether, and how, to punish contempt of his own orders.  Appellants have cited no cases, and our research has not discovered any, in which a trial court was reversed for not punishing contempt of its own orders severely enough.  The only cases cited are cases in which a trial court was reversed for punishing a person guilty of contempt too severely.

     Even were we to determine that we would have entered an order more severe than the order entered by the trial court in this case, that does not give us the power to either change the order or to remand it for reconsideration.  Punishment for contempt is within the discretion of the trial court, and there are good reasons for that.  He heard the witnesses and saw the evidence.  It was his order that was originally entered to solve a problem which he believed existed, and it is within his discretion to determine how a violation of that order should be punished. While we are not holding that there could never be an order reversed for failure to punish for contempt, we do hold that there was no abuse of discretion in this case.

IV.  CONCLUSION
     We hold that the trial court did not abuse its discretion in reaching the balance it did in the preliminary injunction order.  We also hold that the trial court did not abuse its discretion in not holding Susumu in contempt.  Accordingly, we affirm the lower court's interlocutory orders.

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Footnote:
 
1.  Failure of a court to take into consideration both of these factors can be grounds for a reviewing court to vacate the injunction issued.  Maryland Undercoating Co., 603 F.2d at 482.