Marriage of Nussbeck, In re

• Decision Date: 01 March 1999
• Docket Number: No. 97SC540,97SC540
• Citation: 974 P.2d 493
• Parties: In re the MARRIAGE OF Patricia J. NUSSBECK, Petitioner, and Robert J. Nussbeck, Respondent.
• Court: Colorado Supreme Court

Page 493

974 P.2d 493

In re the MARRIAGE OF Patricia J. NUSSBECK, Petitioner,

and

Robert J. Nussbeck, Respondent.

No. 97SC540.

Supreme Court of Colorado,

En Banc.

March 1, 1999.

McGuane and Hogan, LLP, Frank L. McGuane, Jr., Denver, Colorado, Attorneys for Petitioner.

Thomas H. May, Denver, Colorado, Themia E. Sandven, Denver, Colorado, Attorneys for Respondent.

Justice SCOTT delivered the Opinion of the Court.

We granted certiorari in this dissolution of marriage case to decide whether a trial court may enforce its order requiring payment of maintenance and child support through contempt proceedings after a money judgment has been entered on amounts not paid. ¹ The court of appeals held that it could not and reversed the trial court's punitive contempt order reasoning that "[t]he entry of a judgment at law and the prosecution of a ... contempt citation are alternative, not duplicative, remedies." In re Marriage of Nussbeck, 949 P.2d 73, 77 (Colo.App.1997). We review the judgment of the court of appeals because of the importance of the issues raised to our trial judges, and now reverse.

I.

A.

This matter in dispute arose out of a lengthy dissolution proceeding between Patricia J. Nussbeck (wife) and Robert J. Nussbeck (husband). After agreeing that their marriage of approximately nineteen years was "irretrievably broken," wife and husband filed a joint-stipulation to temporary orders regarding custody of their daughter and amounts to be paid by husband for child support and maintenance.

On May 4, 1987, the stipulation, executed by wife, husband, and their attorneys, was filed with the trial court. Under the stipulation, it was agreed that the parties were to have joint custody of their minor daughter, that wife and the minor daughter were to have use of the family home, and that husband would continue to make monthly mortgage payments. It is undisputed that the stipulation became temporary orders of the trial court (temporary orders). By the temporary orders, husband was to pay temporary maintenance and child support to wife in the amount of $330 per month.

When husband failed to make payments contemplated by the temporary orders, wife filed her "Verified Motion for Judgment for Family Support." On October 10, 1990, the trial court entered a judgment against husband (the 1990 Judgment) for amounts due in accordance with the temporary orders. The 1990 Judgment was in the amount of $13,200, plus interest.

Several months later, the trial court entered its order and decree of dissolution, dissolving the Nussbecks' marriage. However, due to pending bankruptcy proceedings in federal court and related complications involving finances, the court deferred issuing its permanent orders regarding the division of property, maintenance, payment of debts, and attorney fees until a later date.

On May 17, 1994, the trial court entered permanent orders (the 1994 Permanent Order). Under the 1994 Permanent Order, the trial court entered findings that husband had "refused to pay child support and maintenance" under the 1990 Judgment, "together with interest totaling $19,114.53." The trial court also found that husband owed additional arrearages that accumulated after the 1990 Judgment until May 1993, totaling $11,753.24. The 1994 Permanent Order directed the husband to pay the $11,753.24 "on a forthwith basis." ² However, while husband made some payments, he failed to make all the payments under the temporary orders as set forth in the 1990 Judgment and the 1994 Permanent Order.

In July 1995, about 15 months after the 1994 Permanent Order, wife filed two motions seeking to have husband held in contempt. In one motion, wife sought remedial sanctions based upon husband's refusal to pay sums due under the 1994 Permanent Order for the arrearages that had accumulated after the 1990 Judgment. The trial court granted this motion, ruling that husband's action of refusing to pay "forthwith" the $11,753.24 was a sufficient basis to hold him in contempt. This remedial contempt ruling, however, is not at issue before us.

Under the other motion, Verified Motion for Punitive Contempt Citation, wife sought punitive sanctions and attorney fees for amounts not paid pursuant to the temporary orders and set forth under the 1990 Judgment. Wife's punitive contempt motion was based upon the trial court's earlier finding that husband "refused to pay child support " (emphasis added) and that husband acted in "willful violation of existing orders of the court" concerning the 1990 Judgment.

On November 21, 1995, after a hearing before a magistrate, husband was found guilty of contempt under both motions. Under the punitive contempt motion, the magistrate found that "orders ... were entered," and that the "orders were known to [husband]." Taking notice of the court's own file, the magistrate further ruled "that these orders for child support are judgments when they are not paid. And there was nonpayment." The magistrate found that husband "had ample opportunity to follow through with the orders of the court," and that husband's "attempts are and have been to dodge the order, to not pay, to make it difficult for the [wife] to collect child support."

In light of these findings, the magistrate concluded that a "punitive sanction is appropriate." As a consequence, husband was sentenced to "ninety days straight jail time ... to vindicate the dignity ... of the Court for [husband's] continual obstruction of the order of the Court, nonpayment of child support, and nonpayment of maintenance ... and [a] previous contempt that was entered when you were ordered to pay, and wherein the Court made findings of, essentially, the same findings that are being made today, trying to dodge your responsibility, costing the Court additional time and effort by your efforts." ³

B.

Husband filed a motion asking the district court judge to review the magistrate's ruling. On January 5, 1996, the district court judge denied the husband's motion for review, concluding "that the orders of the Magistrate were in accordance with the law and sufficiently supported by the evidence."

Husband next appealed to the court of appeals. The court of appeals affirmed the remedial order but reversed the punitive contempt order. See Nussbeck, 949 P.2d at 77. The court of appeals concluded that the magistrate's findings, upheld by the district court judge, in effect, found husband's ability to pay was "related solely to the arrearages accruing since the entry of the 1990 judgment and not to any arrearages upon which [the 1990] judgment was based." Id. at 75. The court of appeals further concluded that the wife's punitive contempt motion was "based solely upon ... [husband's] failure to pay the October 1990 judgment" and was not based on his violation of "some other court order." Id. at 76. Therefore, the court of appeals held that failure to pay a money judgment cannot provide the basis for contempt, and that the "resulting order of [punitive] contempt and the punitive sanctions imposed ... must be reversed." Id. at 77. Relying upon In re Marriage of Woodrum, 618 P.2d 732 (Colo.App.1980), the court of appeals reversed the trial court's ruling, holding that "[t]he entry of a judgment at law and the prosecution of a ... contempt citation are alternative, not duplicative, remedies." Id. at 76.

We granted certiorari due to the importance of the court of appeals' holding, potentially limiting the ability of trial courts to enforce orders that result in a judgment in dissolution proceedings. We now reverse.

II.

For purposes of punitive contempt proceedings, a movant must allege and a trial court must find the following: (1) the existence of a lawful order of the court; (2) contemnor's knowledge of the order; (3) contemnor's ability to comply with the order; and (4) contemnor's willful refusal to comply with the order. Before beginning our analysis, we first state certain legal principles that guide our deliberations.

A.

A trial court that acquires jurisdiction in dissolution proceedings has the authority to impose contempt sanctions to enforce obedience of its orders. See Shapiro v. Shapiro, 115 Colo. 501, 504, 175 P.2d 387, 389 (1946). Even after entering a decree of dissolution, the court has continuing jurisdiction to enforce its orders, including those directing payments for support of a child and temporary maintenance. See Gonzales v. District Court, 629 P.2d 1074, 1075 (Colo.1981).

"The usual method of enforcing an order in a divorce action ... is by means of commitment for contempt of court after notice to the husband and a demand for payment." Harvey v. Harvey, 153 Colo. 15, 17-18, 384 P.2d 265, 266 (1963). "Contempt proceedings are equally available in enforcing a judgment which determines the property rights of the parties in a divorce proceeding." Id.

C.R.C.P. 107 provides the authority pursuant to which trial courts are to conduct remedial and punitive contempt proceedings. See C.R.C.P. 107. Rule 107 defines contempt as "[d]isorderly or disruptive behavior ... toward the court, or ... disobedience ... by any person to ... any lawful ... order of the court." C.R.C.P. 107(a)(1). Under Rule 107 there are two types of contempt: "direct" and "indirect." "Direct contempt" arises from only extreme or persistent in-court conduct that disrupts court proceedings and which requires a judge to impose order. See C.R.C.P. 107(a)(2). Direct contempt may be punished summarily, and a court need only make simple factual findings to support its ruling that a person is guilty of contempt. See C.R.C.P. 107(a)(2) and 107(b); see also In re Marriage of Johnson, 939 P.2d 479, 481-82 (Colo.App.1997). "Indirect" contempt is contempt that "occurs out of the direct sight or hearing of the court." C.R.C.P. 107(a)(3).

Rule 107 also sets forth two types of sanctions which the trial court can impose: punitive and remedial. See C.R.C.P. 107(a)(4) and (a)(5). Remedial sanctions for contempt are "[s]...