Rodriguez v. Dist. Ct.
| Decision Date | 09 December 2004 |
| Docket Number | No. 42991.,42991. |
| Citation | 102 P.3d 41,120 Nev. 798 |
| Parties | Charles RODRIGUEZ, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, in and for the COUNTY OF CLARK, the Honorable Steven E. Jones, District Judge, Family Court Division, and the Sheriff, Clark County, Respondents, and Nicole Eddowes, Real Party in Interest. |
| Court | Nevada Supreme Court |
Charles Rodriguez, Las Vegas, in Proper Person.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and Edward W. Ewert, Deputy District Attorney, Clark County; Beckley Singleton, Chtd., and Heidi J. Parry Stern and Daniel F. Polsenberg, Las Vegas, for Respondents.
Lyons Law Firm and Keith M. Lyons Jr., Las Vegas, for Real Party in Interest.
Before ROSE, MAUPIN and DOUGLAS, JJ.
This petition presents a question of first impression: Whether an indigent defendant in family court is entitled to appointed counsel in a contempt hearing when the hearing may result in the imposition of a jail sentence for the nonpayment of child support.
Charles Rodriguez, petitioner, and Nicole Eddowes, the real party in interest, were divorced on November 6, 2001. The terms of the initial custody order and divorce decree awarded primary physical custody of the couple's only child to Eddowes and ordered Rodriguez to pay child support, along with one-half of the child's insurance premiums, and one-half of any unreimbursed medical expenses incurred on the child's behalf.
Rodriguez failed to make the payments as required, and on March 1, 2004, the district court found Rodriguez in contempt of court for the nonpayment of child support and ordered him to serve 25 days in jail, with the possibility of early release upon payment of $10,000 of the outstanding arrearages. Rodriguez then filed this petition for a writ of habeas corpus, challenging the district court's order rejecting his request for the appointment of counsel and finding him in contempt of court.
We conclude that while a defendant in a contempt proceeding before the family court does indeed have an important liberty interest at stake, that interest is not so compelling as to require the appointment of counsel, nor is it on par with the personal liberty interests at issue in a criminal prosecution or criminal contempt hearing to warrant the right to appointed counsel in every case. We adopt a discretionary rule involving the nonpayment of support cases whereby the district court may appoint counsel to assist an indigent defendant when the circumstances so warrant. Consequently, we grant the petition in part. Rodriguez shall remain free from confinement until the district court makes the required findings and determinations of indigency and contempt in accord with this decision.
Rodriguez and Eddowes were divorced on November 6, 2001.1 The terms of the divorce decree awarded Eddowes primary physical custody of the couple's child and ordered Rodriguez to pay child support, one-half of the insurance premiums for the child, and one-half of any unreimbursed medical expenses incurred on the child's behalf.
In explaining its decision in the divorce, the district court found that Rodriguez was unemployed and underemployed because of a unilateral desire to educate himself and assist in his divorce and custody proceedings. Noting that Rodriguez's actions thus far did not appear to be taken for the purpose of avoiding child support, the court warned that any future noncompliance with subsequent court orders would be considered an attempt to avoid child support and sanctions could be imposed accordingly. The district court determined that Rodriguez had the ability to generate income of at least $2,000 per month and observed that it fully expected Rodriguez to earn an even greater income based upon his representations and the testimony of witnesses, regarding the business awarded to him in the divorce.
Rodriguez filed an ex parte motion for leave to proceed in forma pauperis on his appeal from the divorce decree. On February 17, 2002, the district court denied the motion, finding Rodriguez's claim of financial inability disingenuous and made in bad faith. The district court noted that, even without considering other outside employment, Rodriguez possessed a considerable source of income through the operation or sale of the business awarded to him in the divorce. Noting that it had previously found Rodriguez willfully unemployed, but for purposes other than the avoidance of child support, the court determined that his failure to work for the three months following the trial was due to his conscious insistence to remain unemployed. Therefore, because Rodriguez was fully capable of meeting his obligations, the court denied his request.
On two subsequent occasions, the district court held Rodriguez in contempt of court for the nonpayment of child support and for failing to obey the court's order requiring him to pay his share of the child's medical expenses.2 On each occasion, Rodriguez asserted that he was entitled to an attorney because of the possibility that he would be found in contempt and sentenced to jail. Rodriguez claimed that he was unemployed and unable to meet his obligations because of the time required to research and appeal the child custody order issued in this case and another case involving his other child. Rodriguez insisted that he was not willfully refusing to pay child support and argued that his daughter was not injured by his actions because his nonpayment was the direct result of his efforts to get custody of her.
At one point, Rodriguez requested a continuance because he was not prepared to go forward, as he had just returned from a vacation with his daughter at Disneyland. The court inquired as to where Rodriguez got the money to go to Disneyland, and he stated that his mother paid for the vacation. The court asked whether Rodriguez had made any child support payments, and he responded that he had borrowed $100 to make a partial payment following the first contempt order. The court found that Rodriguez had made a conscious choice to be unemployed to pursue his appeal, which the court did not accept as a justifiable excuse for his nonpayment. Additionally, the court denied Rodriguez's request for appointed counsel, observing that the court's proceedings were civil and not criminal. Given the court's belief that the facts of the case spoke for themselves, the court did not concur with Rodriguez's assertion that an attorney was necessary to represent him. The court specifically admonished Rodriguez to make an effort to secure a job that would generate a salary and enable him to meet his court ordered child support obligation.
Rodriguez ultimately filed an affidavit of indigency and a motion to reduce the child support award. Eddowes opposed the motion and filed a countermotion for contempt. Rodriguez filed an affidavit of indigency on February 13, 2004. At a hearing on February 17, 2004, Rodriguez requested to withdraw his motion to reduce child support until he retained counsel. The district court noted that because this court had affirmed the decree of divorce, other issues were moot; however, at the request of Eddowes' counsel, the court decided to proceed with Eddowes' countermotion for contempt.
Rodriguez again argued that as an indigent person he had the right to appointed counsel because his liberty interest was on the line. Rodriguez acknowledged that no Nevada statute provides for such a right, but maintained that other courts dealing with the issue have concluded that there is such a right to counsel. Despite Rodriguez's arguments, the court denied his request for counsel and proceeded with the contempt hearing. However, the court instructed Eddowes that she must file a motion to show cause before the court could hear the matter.
On March 1, 2004, the court heard Eddowes' motion to show cause. Eddowes informed the court that since October 2002, Rodriguez had been paying less than one-third of the monthly child support ordered. Rodriguez stated that he had the right to an attorney, he could not afford an attorney, and he was not qualified to represent himself. Rodriguez insisted that without an attorney he could not get a fair hearing and that the district court and this court had continued to discriminate against him. The court inquired whether Rodriguez was employed and why he had not paid his support obligation. Insisting that he was indigent, Rodriguez refused to answer the court's questions without the presence of counsel.
The court observed that Rodriguez had presented no evidence to demonstrate that his unemployment was involuntary, as he was physically able to work but refused to obtain a job. The court noted that Rodriguez's voluntary choice to pursue his appeal of the custody award and child support order did not eradicate his duty to pay child support. The district court once again found Rodriguez in contempt of court for failing to pay child support and this time ordered him to serve 25 days in jail, with early release if he paid $10,000 of the more than $18,000 outstanding in arrears. Once again, the court directed Rodriguez to make all reasonable efforts to obtain employment, either through self-employment in the business awarded to him in the divorce or regular employment.
Thereafter, Rodriguez filed this original petition for a writ of habeas corpus challenging the district court order holding him in contempt and ordering him to serve 25 days in jail, with the possibility of early release upon his payment of $10,000 of the outstanding arrearages. We ordered a temporary stay of the district court's contempt order and Rodriguez's release from custody pending our review of the matter.
Rodriguez argues that his incarceration without the assistance of court-appointed counsel violates the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article 1, Section 8(5) of the Nevada...
To continue reading
Request your trial
-
Turner v. Rogers, 10–10.
...for indigents facing imprisonment in a child support civil contempt proceeding), with Rodriguez v. Eighth Judicial Dist. Ct., County of Clark, 120 Nev. 798, 808–813, 102 P.3d 41, 48–51 (2004) (no right to counsel in civil contempt hearing for nonsupport, except in "rarest of cases"); Andrew......
-
Detwiler v. Eighth Judicial Dist. Court of Nev.
...a sanction is criminal if punitive, and civil if remedial. Id. at 457, 373 P.3d at 880 (citing Rodriguez v. Eighth Judicial Dist. Court, 120 Nev. 798, 804-05, 102 P.3d 41, 45-46 (2004) ). There, we concluded that an order of incarceration must contain a purge clause to be civil. Incarcerati......
-
Huckabay Props., Inc. v. NC Auto Parts, LLC
...the accused shall enjoy the right to ... the Assistance of Counsel for his defense”); Rodriguez v. Eighth Judicial Dist. Court, 120 Nev. 798, 804–05, 102 P.3d 41, 45–46 (2004) (recognizing that the Sixth Amendment right to counsel applies only in criminal prosecutions); Sanchez v. U.S. Post......
-
Hernandez v. Bennett–Haron
...the similarities between the due process clauses contained in the United States and Nevada Constitutions, Rodriguez v. Dist. Ct., 120 Nev. 798, 808 n. 22, 102 P.3d 41, 48 n. 22 (2004) (recognizing that “[t]he language in Article 1, Section 8(5) of the Nevada Constitution mirrors the Due Pro......