In re A.C.B.

• Decision Date: 06 January 2022
• Docket Number: Court of Appeals No. 19CA2029
• Citation: 507 P.3d 1078,2022 COA 3
• Parties: IN RE the Parental Responsibilities Concerning A.C.B., a Child, and Concerning Laura Jeane Frederick, Petitioner, and Joshua Broyhill, Appellant, and Concerning Pueblo County Child Support Services, Intervenor-Appellee.
• Court: Colorado Court of Appeals

507 P.3d 1078

2022 COA 3

IN RE the Parental Responsibilities Concerning A.C.B., a Child, and Concerning Laura Jeane Frederick, Petitioner, and Joshua Broyhill, Appellant, and Concerning Pueblo County Child Support Services, Intervenor-Appellee.

Court of Appeals No. 19CA2029

Colorado Court of Appeals, Division I.

Announced January 6, 2022

Robinson Waters & O'Dorisio, P.C., Tracy L. Ashmore, Denver, Colorado, for Appellant

Willoughby & Associates, Kimberly R. Willoughby, Golden, Colorado, for Amicus Curiae American Academy of Matrimonial Lawyers

Cynthia Mitchell, County Attorney, Maclovio F. Gallegos, Assistant County Attorney, Pueblo, Colorado, for Intervenor-Appellee

Polidori, Franklin, Monahan, & Beattie, LLC, Robin Lutz Beattie, Lakewood, Colorado, for Amicus Curiae Family Law Section of the Colorado Bar Association

Mark Silverstein, Anna I. Kurtz, Denver, Colorado, for Amicus Curiae American Civil Liberties Union of Colorado

Opinion by JUDGE WELLING

¶ 1 In this contempt proceeding initiated by Pueblo County Child Support Services (CSS) against Joshua Broyhill, Broyhill appeals the trial court's judgment finding him in indirect contempt for failure to comply with a child support order and imposing a jail sentence as a remedial sanction. He argues primarily that the trial court violated his right to due process by failing to appoint counsel to assist him in his defense of the contempt citation.

¶ 2 Throughout the contempt proceedings, Broyhill repeatedly told the court that he was indigent and insisted, based on his indigency and the fact that CSS was pursuing imprisonment as a remedial sanction, that he was entitled to court-appointed counsel at state expense. The trial court denied the request on the grounds that the right to court-appointed counsel doesn't extend to contempt proceedings where only remedial sanctions — not punitive sanctions — are requested.

¶ 3 We conclude that when, as here, a contempt proceeding is initiated by a governmental entity and where a jail sentence is an available remedial sanction, an alleged contemnor who is indigent has the right to court-appointed counsel. We further conclude that the trial court violated Broyhill's due process rights when it refused to inquire into his indigency status to determine whether he qualified for court-appointed counsel. As a result, we reverse the judgment and sentence and remand the case for the trial court to determine if Broyhill is indigent and, if so, to appoint counsel to represent him at a new contempt hearing.

I. Relevant Facts

¶ 4 In 2015, CSS petitioned the trial court to register a 2004 Iowa administrative order requiring Broyhill to pay monthly child support of $183 to Laura Jeane Frederick (mother).¹ The court later registered the foreign support order.

¶ 5 In September 2018, CSS, on behalf of mother, filed a motion requesting that the trial court issue an indirect contempt citation to Broyhill, alleging that he had an unpaid child support balance in the amount of $11,929. CSS sought, as a remedial sanction, "a jail sentence for an indefinite period of time, not to exceed six months, suspended on the condition that [Broyhill] pays [his] monthly child support obligation for a set period of time plus an additional payment amount toward the arrearage balance."² The court issued the contempt citation, which advised Broyhill that CSS was seeking "remedial contempt" and that he had the right "[t]o be represented by an attorney at [his] own expense ." (Emphasis added.)

¶ 6 After being served with the contempt citation, Broyhill appeared before the trial court to be advised of his rights. During the advisement, the court informed him that he had "the right to be represented by a lawyer of [his] own choosing should [he] wish to hire one." He said that he couldn't afford an attorney.

¶ 7 Throughout five subsequent status conferences held over the course of four months, Broyhill continued to represent to the trial court that he was indigent, telling the court, among other things, that he can't "afford a lawyer" and he has "very little money and [he] need[s] to find a pro bono attorney."

¶ 8 During the fourth status conference, Broyhill made the following request for court-appointed counsel:

[Broyhill]: Well the fact of the matter is ... I honestly believe that I am entitled to a court[-] appointed attorney....

The reason I say I believe I'm entitled to a court[-]appointed attorney is because according to the Colorado Court of Appeals and a decision of Padilla versus Padilla in 1982, they had decided and I quote, where a jail sentence maybe imposed in a contempt proceeding the alleged conte[mnor,] if indigent[,] is entitled to the appointment of [c]ounsel.

So it is my understanding that I'm entitled to the appointment of [c]ounsel considering I am indigent and I would like to be provided the ability to prove my indigence and to be provided the court[-]appointed [c]ounsel as directed by the [s]upreme [c]ourt ... and also by several Chief Justice Directives provided by that [s]upreme [c]ourt[,] Ma'am.

THE COURT: Okay. Counsel I assume this is remedial and not --

[CSS]: It is. It's remedial.

THE COURT: Yeah okay. All right. Sir that's not my understanding of the law. This is a remedial contempt not a punitive contempt.

¶ 9 In August 2019, Broyhill proceeded to the contempt hearing without counsel. CSS, on the other hand, appeared and participated in the hearing through counsel. Testifying in narrative form, as well as responding to the trial court's questions, Broyhill insisted that he lacked the past and present ability to comply with the child support order. More specifically, he testified that various disabilities prevented him from obtaining or maintaining meaningful employment. But he neither offered exhibits nor called any other witnesses on his own behalf.

¶ 10 At the end of the hearing, Broyhill repeated his request for court-appointed counsel, saying: "I honestly believe that the [c]ourt should appoint me a lawyer based on the case law that I've read." The court again denied the request. It then found him in indirect contempt primarily on the basis that he failed to introduce any documentation of any disability.

¶ 11 As a remedial sanction, the trial court sentenced Broyhill to thirty days in jail, but it stayed the sentence on the condition that he remain current with his child support obligation. The court didn't make explicit findings with respect to his ability to make either past or present child support payments.

¶ 12 With the assistance of pro bono counsel, Broyhill appealed and filed an opening brief. CSS didn't file an answer brief.

¶ 13 We then invited supplemental briefing from CSS and potentially interested amicus curiae, including the Family Law Section of the Colorado Bar Association (CBA), the Colorado Chapter of the American Academy of Matrimonial Lawyers (AAML), the Colorado Division of Child Support Services, the Office of the Child's Representative, and Colorado Counties, Inc. The Colorado Chapter of the AAML, the Family Law Section of the CBA, and the American Civil Liberties Union of Colorado filed amicus briefs, all in support of Broyhill's position. Although CSS had numerous opportunities to file an answer brief, respond to the amici, or otherwise inform us of and argue its position, it never did.

II. Discussion

¶ 14 Broyhill contends that the trial court denied him due process of law under the Fourteenth Amendment to the United States Constitution by failing to determine whether he was indigent and, thus, entitled to court-appointed, state-paid counsel. We agree.

A. Standard of Review

¶ 15 The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects citizens from the deprivation of liberty without due process. U.S. Const. amend. XIV, § 1 ; see M.S. v. People , 2013 CO 35, ¶ 9, 303 P.3d 102. This clause confers both procedural and substantive due process rights. M.S. , ¶ 9.

¶ 16 Because this case presents an issue of procedural due process, we review de novo. See People in Interest of K.N.B.E. , 2019 COA 157, ¶ 11, 457 P.3d 140 ; Copley v. Robinson , 224 P.3d 431, 435 (Colo. App. 2009) (procedural due process requires that fundamentally fair procedures are in place when the state threatens a protected liberty interest).

B. C.R.C.P. 107

¶ 17 Contempt proceedings are governed by rule, specifically C.R.C.P. 107. The version of the rule in effect until 1995 recognized two types of contempt: criminal and civil. People v. Razatos , 699 P.2d 970, 974 n.1 (Colo. 1985). Generally, criminal contempt and civil contempt were differentiated by the purpose of the proceeding and type of sanctions requested. See id. at 974.

¶ 18 Criminal contempt was punitive in nature and carried an unavoidable, determinative sanction, crafted to punish the contemnor and vindicate the court's dignity. Id. ; In re Pechnick , 128 Colo. 177, 182, 261 P.2d 504, 507 (1953).

¶ 19 Civil contempt, on the other hand, was remedial in nature and carried a sanction tailored to coerce compliance with the court's order and which could be purged by the contemnor taking an action that was within his power and ability to perform. Razatos , 699 P.2d at 974 ; Pechnick , 128 Colo. at 182, 261 P.2d at 507 ("Civil contempt proceedings are to preserve and enforce the rights of private parties to litigation and to compel obedience to the orders made for the benefit of litigants.").

¶ 20 Criminal contempt was often referred to as punitive contempt, and civil contempt was referred to as remedial contempt. See Razatos , 699 P.2d at 974 ; see also In re Marriage of Zebedee , 778 P.2d 694, 698 (Colo. App. 1988).

¶ 21 In 1995, C.R.C.P. 107 was rewritten. 5 Sheila K. Hyatt & Stephen A. Hess, Colorado Practice Series , Civil Rules Annotated Rule 107 author cmt. 107.1, Westlaw (5th ed. database updated Oct. 2021); see In re Marriage of Cyr , 186 P.3d 88, 92-93 (Colo. App. 2008). Under the post-1995 rule, there are two types of contempt — direct and indirect — and two...