In re Marriage of Cyr and Kay

• Citation: 186 P.3d 88
• Decision Date: 24 January 2008
• Docket Number: No. 06CA1444.,06CA1444.
• Parties: In re the MARRIAGE OF Clark R. CYR, Appellant, and Keisa KAY, Appellee.
• Court: Colorado Court of Appeals

186 P.3d 88

In re the MARRIAGE OF Clark R. CYR, Appellant, and Keisa KAY, Appellee.

No. 06CA1444.

Colorado Court of Appeals, Div. A.

January 24, 2008.

Frascona, Joiner, Goodman and Greenstein, P.C., Gregg A. Greenstein, Boulder, Colorado, for Appellant.

LaBuda & Associates, P.C., Judy L. LaBuda, Leah Ann Akin-Acosta, Boulder, Colorado, for Appellee.

Opinion by Judge FURMAN.

Clark R. Cyr (husband) appeals from the district court order finding him in contempt for violating the parties' separation agreement. We affirm.

In this remedial contempt case, we are asked to decide whether a trial court must find willful noncompliance before imposing remedial sanctions. We conclude a trial court need not make such a finding.

I. Background

Husband and Keisa Kay (wife) reached a partial separation agreement (Agreement) that provided husband "shall be solely responsible for all 1997, 1998, or 1999 income tax not yet paid, and penalties and interest now known, or that may be assessed in the future as a result of an audit or review by taxing authorities." In return, wife gave up her right to receive payment or reimbursement related to tangible assets in a business that was marital property, including money loaned to the business by wife, and the value of some personal property.

Wife learned the Internal Revenue Service (IRS) was assessing her taxes and penalties for the 1998 tax year and, subsequently, sought innocent spouse relief from the IRS to avoid payment, in accordance with the terms of the Agreement. The IRS granted her request. Husband, however, successfully appealed the IRS's decision. As a result, wife was required to pay $16,245 to the IRS, one-half of the 1998 tax assessment.

Wife then filed a motion with the district court requesting issuance of a contempt citation against husband. In support of this motion, wife claimed husband's appeal from the IRS's decision granting innocent spouse relief and his failure to reimburse wife for the $16,245 tax assessment constituted a violation of the Agreement.

The court found husband in contempt, but did not impose punitive sanctions. The court determined that wife did not prove husband's failure to reimburse wife was willful, based on evidence of husband's debilitating medical condition during the period of noncompliance. Nonetheless, the court concluded that a remedial sanction was appropriate because husband "presently has the ability to comply with the order." Before the court sanctioned him, husband purged the contempt by paying wife her portion of the tax assessment. The district court subsequently awarded wife attorney fees, and determined that she was entitled to tax refunds that accrued during the marriage.

On appeal, husband challenges the district court's finding of contempt, award of attorney fees, and tax refund determination.

II. Mootness

We initially consider whether husband's act of purging the remedial contempt sanction renders this appeal moot. We conclude it does not because the district court's order finding husband in contempt also provided the basis for its award of attorney fees. See In re Marriage of Nussbeck, 949 P.2d 73, 75 (Colo.App.1997)(a remedial contempt sanction was not rendered moot by husband's subsequent payment of arrearages owed under an order approving a separation agreement because the order was the predicate for an award of attorney fees), rev'd on other grounds, 974 P.2d 493 (Colo.1999) (Nussbeck II).

III. Finding of Contempt

Husband contends the district court abused its discretion by finding him in contempt because he did not willfully violate a court order. We disagree.

A. C.R.C.P. 107

C.R.C.P. 107 distinguishes between two types of contempt, direct and indirect, and defines the actions constituting contempt to include "disobedience ... by any person to ... any lawful ... order of the court." C.R.C.P. 107(a)(1). Thus, to find a party in contempt the fact finder must find that the contemnor did not comply with a lawful order of the court. The duty to comply arises because the contemnor was aware of the order. See, e.g., People v. Allen, 868 P.2d 379, 383 n. 10 (Colo.1994)(elements of contempt were established because defendant was aware of a permanent restraining order); In re Marriage of Bernardoni, 731 P.2d 146, 148 (Colo.App.1986)(father was made aware of his duty to permit mother to have visits with her children when the order was entered in open court).

Rule 107 also distinguishes between two types of contempt sanctions, punitive and remedial. C.R.C.P. 107(a)(4) & (5). Punitive sanctions are criminal in nature and are designed to punish "by unconditional fine, fixed sentence of imprisonment, or both, for conduct that is found to be offensive to the authority and dignity of the court." C.R.C.P. 107(a)(4); see People v. Razatos, 699 P.2d 970, 974 (Colo.1985). Because the purpose is to punish, and the power to punish for contempt should be used sparingly, the contemnor's mental state of willful disobedience must be shown. See Nussbeck II, 974 P.2d at 499; People in Interest of Murley, 124 Colo. 581, 585, 239 P.2d 706, 709 (1951). An act is willful if it is done "voluntarily, knowingly, and with conscious regard for the consequences of [one's] conduct." Nussbeck II, 974 P.2d at 499.

Punitive sanctions for contempt must be supported by findings of fact establishing beyond a reasonable doubt (1) the existence of a lawful order of the court; (2) the contemnor's knowledge of the order; (3) the contemnor's ability to comply with the order; and (4) the contemnor's willful refusal to comply with the order. Id. at 497; see C.R.C.P. 107(d)(1).

In contrast, remedial sanctions are civil in nature and are intended "to force compliance with a lawful order or to compel performance of an act within the person's power or present ability to perform." C.R.C.P. 107(a)(5). Because the purpose is remedial, and for the benefit of another, it does not matter what the contemnor intended when he or she refused to comply. See McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 93 L.Ed. 599 (1949); In re Estate of Elliott, 993 P.2d 474, 479 (Colo.2000).

Remedial sanctions for contempt must be supported by findings of fact establishing the contemnor (1) did not comply with a lawful order of the court; (2) knew of the order; and (3) has the present ability to comply with the order. Nussbeck II, 974 P.2d at 498; People v. Lockhart, 699 P.2d 1332, 1336 (Colo.1985); In re Marriage of Zebedee, 778 P.2d 694, 697 (Colo.App.1988). When the court imposes a remedial contempt sanction, it must do so "in writing or on the record describing the means by which the person may purge the contempt." C.R.C.P. 107(d)(2). The burden of proving inability to comply with the order rests on the alleged contemnor. In re Marriage of Lamutt, 881 P.2d 445, 447 (Colo.App.1994).

Hence, in view of the differing purposes of remedial and punitive sanctions indicated in C.R.C.P. 107, we conclude proof of willfulness is not required before a court may impose remedial contempt sanctions.

In support of a contrary conclusion, husband relies on decisions from this court that have required trial courts to find a contemnor's noncompliance was willful before imposing either punitive or remedial sanctions. Based on the history of C.R.C.P. 107, and the context of those cases, we disagree.

B. The History of C.R.C.P. 107 and Case Law

Earlier versions of C.R.C.P. 107 did not clearly distinguish between remedial contempt sanctions and punitive contempt sanctions. For example, the version of C.R.C.P. 107(d) in effect until 1995 provided:

The court shall hear the evidence for and against the person charged and it may find him guilty of contempt and by order prescribe the punishment therefor. A fine may be imposed not exceeding the damages suffered by the contempt, plus costs of the contempt proceeding, plus reasonable attorney's fees in connection with the contempt proceeding, payable to the person damaged thereby. If the contempt consists of the failure to perform an act in the power of the person to perform he may be imprisoned until its performance. In addition thereto, to vindicate the dignity of the court, if the citation so states, a fine or imprisonment may be imposed. If any such fine is not paid the court may order the contemnor imprisoned until payment thereof.

Colorado case law interpreting earlier versions of C.R.C.P. 107 clearly held that a finding of willful noncompliance is necessary in punitive contempt cases. Harthun v. Dist. Court, 178 Colo. 118, 122, 495 P.2d 539, 541 (1972); Harvey v. Harvey, 153 Colo. 15, 17-18, 384 P.2d 265, 266 (1963); Dist. Attorney v. Dist. Court, 150 Colo. 136, 140, 371 P.2d 271, 273 (1962). The case law is unclear, however, whether a finding of willful noncompliance was necessary in remedial contempt cases under the former C.R.C.P. 107.

Some cases mentioned and upheld a trial court's finding of willfulness without stating that such a finding was required. See, e.g., Bd. of Water Works v. Pueblo Water Works Employees Local 1045, 196 Colo. 308, 315, 586 P.2d 18, 23 (1978)(referring to trial court's finding of willfulness and finding that the dignity of the court had been impugned, but referring to proceeding as one for "civil contempt"); Lewis v. Lorenz, 144 Colo. 23, 27, 354 P.2d 1008, 1011 (1960) (upholding trial court's finding of willful violation in civil contempt proceeding); In re Marriage of Schneider, 831 P.2d 919, 922 (Colo.App.1992) (upholding trial court finding of willful disobedience in remedial contempt order).

Other cases discussed civil contempt and remedial sanctions without mentioning whether the violation was willful. See, e.g., Lamutt, 881 P.2d at 447-48 (civil contempt involves remedial sanctions); Lockhart, 699 P.2d at 1336 (civil contempt where party who has a present ability to obey has refused to perform); In re Marriage of Crowley, 663 P.2d 267, 268 (Colo.App.1983)(concluding the trial court...