PAPATHEOFANIS V. ALLEN, 2009-NMCA-084,
146 N.M. 840, 215 P.3d 778
BILL J. PAPATHEOFANIS,
Petitioner-Appellee,
v.
KATHERINE ALLEN, Respondent-Appellant.
COURT OF APPEALS OF NEW MEXICO
2009-NMCA-084, 146 N.M. 840, 215 P.3d 778
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY,
Raymond Ortiz, District Judge.
Released for Publication August 18,
2009.
Bill J. Papatheofanis, Los Alamos, NM,
Pro Se Appellee.
James K. Leven, Chicago, IL, for
Appellant.
MICHAEL E. VIGIL, Judge. WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge, ROBERT E. ROBLES, Judge.
AUTHOR: MICHAEL E. VIGIL.
{1} This case
concerns two orders of contempt against Wife arising out of the domestic
relations case between Wife and her former spouse (Husband). We affirm in part
and reverse in part.
1. First
Order to Show Cause (Fees)
{2} The district
court appointed a Rule
11-706 NMRA expert in the domestic relations case
between Husband and Wife, and subsequently ordered Husband and Wife to each pay
one-half of the $1100 outstanding balance they owed to the expert. Rule 11-706
(providing that the court may appoint an expert witness of its own selection to
give evidence in the action and apportion the cost among the parties). After
the expert notified the district court by letter that she had not received
payment from either party, the district court on its own motion issued an order
to show cause why Husband and Wife should not be held in contempt for violating
the order to pay the expert’s fees.
2. Second
Order to Show Cause (Periods of Responsibility)
{3} The district
court also entered an order which established Husband’s periods of
responsibility with Child. On December 22, 2006, Husband filed a motion for an
order to show cause why Wife should not be held in contempt for violating the
court order scheduling Husband’s periods of responsibility with Child. Husband
alleged that Wife had denied Husband his periods of responsibility with Child
on November 30, 2006, December 3, 2006, and December 21, 2006 and, in bad
faith, claimed that weather conditions excused her failure to comply. On
December 28, 2006, the district court issued an order to show cause. On January
9, 2007, Husband filed an amended motion for an order to show cause in which he
alleged that Wife also denied Husband’s periods of responsibility with Child on
December 22, 2006, and December 28, 2006.
{4} Wife filed a
response on January 30, 2007, denying the allegations on the basis that she had
been unable to comply with the order due to bad weather conditions and she
supplied supporting evidence of the weather conditions. The evidence consisted
of a weather report indicating snow on November 30, 2006; a newspaper article
from December 1, 2006 referring to snowy and icy conditions on November 30,
2006, and stating that schools and courts were closed; a weather report
indicating snow on December 3, 2006; a weather report indicating snow on
December 19, 2006; an online newspaper article from December 21, 2006,
referring to snowy conditions on December 20, 2006; a note from a court clerk
stating that the court was closed for the entire day on November 30, 2006,
December 20, 2006, and December 21, 2006 and for half the day on December 22,
2006, and December 29, 2006; and a weather report indicating fog and snow on
December 28, 2006.
3. Hearing
on Orders to Show Cause
{5} On January
31, 2007, the district court held a hearing on both orders to show cause. On
the first order to show cause, Husband’s attorney informed the court that
Husband had paid his portion of the fees owed. The district court held Wife in
contempt for failure to pay her share of the fee, ordered Wife to pay a $250
fine, but allowed Wife to purge the contempt if she made full payment to the
expert by February 28, 2007.
{6} On the
second order to show cause, Husband’s attorney asserted that Wife had refused
Husband’s periods of responsibility with Child on November 30, December 3,
December 20, December 21, December 22, December 23, December 28, December 29,
December 31, and January 14. Husband conceded to the inclement conditions on
December 21 and December 29. Wife’s attorney objected to the district court
that Husband’s attorney had “added dates today that are not mentioned in either
of her order[s]” and that “there’s no way that I could prepare or even talk to
[Wife] with respect to other dates that [Husband’s attorney has] mentioned
today.” After hearing testimony from Wife, Husband, and Child’s guardian ad
litem, the district court orally ruled that Wife had engaged in intentional
contemptuous conduct by failing to provide Child for Husband’s periods of
responsibility on December 23, December 31, and January 14. None of these three
dates were included in either written motion filed by Husband. The district
court imposed a sanction of twenty-four hours in jail, with the sentence
suspended pending strict compliance with the district court order. The district
court also ordered Wife to pay Husband’s attorney fees in the amount of $750.
The written order, which was subsequently filed, added December 22, 2006, a
date which was set forth in Husband’s amended motion as an additional date of
noncompliance. Wife appeals.
{7} Wife argues
that the first order of contempt was improper because: (1) the district court
lacks authority to sua sponte issue an order to show cause for civil contempt,
and (2) the contempt power of the district court cannot be used to enforce
ordinary civil judgments. Regarding the second order of contempt, Wife
contends: (1) she was not provided with notice of all of the dates of the
alleged noncompliance for which she was found in contempt, and (2) Husband
failed to establish that Wife was able to comply with the order and willfully
failed to comply. For the reasons explained below, we do not address Wife’s
last issue.
{8} The issues
we address present questions of law, and our review is de novo.
See Reed v.
State ex rel. Ortiz,
1997-NMSC-055, ¶ 47,
124 N.M. 129,
947 P.2d 86,
rev’d
on other grounds, 524 U.S. 151 (1998) (“Questions of law or questions of
mixed fact and law are generally reviewed de novo by appellate courts. It is
the role of appellate courts to say what the law is and how the law should be
applied to specific facts.”) (citations omitted);
State v. Lead Indus.
Ass’n, Inc., 951 A.2d 428, 464 (R.I. 2008) (stating that in the context of
an appeal of an order of civil contempt, a de novo standard of review applies
to questions of law, as well as to mixed questions of fact and law which
purportedly implicate a constitutional right).
1. First
Order of Contempt (Fees)
{9} To properly
classify a contempt proceeding as civil or criminal, we look to the purpose for
which the district court exercised its contempt power.
See In re Klecan,
93 N.M. 637, 638,
603 P.2d 1094, 1095 (1979). Because the district court in
this case issued the first order of contempt for the purpose of compelling
Wife’s obedience with the order of the court requiring payment of the expert’s
fees, this contempt proceeding was civil in nature.
Id. (stating that
civil contempt proceedings are “instituted to preserve and enforce the rights
of private parties to suits and to compel obedience to the orders, writs,
mandates and decrees of the court”).
A. Authority
to Sua Sponte Issue First Order to Show Cause
{10} Wife argues
that the district court did not have authority to sua sponte issue the order to
show cause why Wife should not be held in civil contempt for failure to pay the
expert’s fees. Wife cites
State ex. rel Agee v. Chapman, 922 S.W.2d 516,
519 (Tenn. Ct. App. 1995), for the proposition that a court cannot order
sanctions for civil contempt on its own motion. The court in
Chapman
recognized a limit for a court on its own motion to impose a civil contempt
sanction against a party litigant: “[T]he general rule seems to be that, since
the sanction [to enforce the private right] is imposed for a party’s benefit,
the party has the power to waive that benefit. If a party does not seek to hold
the opposing party in contempt, the court cannot impose civil sanctions on its
own motion.”
Id. In the present case, the district court did not
initiate the contempt proceeding for the benefit of a party litigant. Rather,
the order to show cause was issued for the purpose of determining whether the
court order to pay the Rule 11-706 expert’s fees was violated.
{11} Rule 11-706
provides the district court with authority to appoint “an independent expert
unaligned with either party to assist the court in determining significant
issues in the proceeding,”
In re Sanders,
108 N.M. 434, 439-40,
773 P.2d
1241, 1246-47 (Ct. App. 1989), and bestows upon the district court “broad
discretion . . . in apportioning among the parties the costs of an expert
witness appointed by the court.”
In re Adoption of Stailey,
117 N.M.
199, 205,
870 P.2d 161, 167 (Ct. App. 1994). Furthermore, “[t]his judicial
power inherently includes the right, and the responsibility, to secure the
payment of court-appointed experts particularly in the face of limited
financial resources.”
Philipbar v. Philipbar,
1999-NMCA-063, ¶ 10,
127
N.M. 341,
980 P.2d 1075. Because the court appoints the Rule 11-706 expert, and
it is charged with the responsibility of securing the expert’s payment, it
follows that the court must also be empowered to enforce its order sua sponte
because in doing so, it is not enforcing the right of any party. We hold that
the district court has inherent authority to sua sponte issue an order to show
cause why a party should not be held in civil contempt for failing to comply
with a court order to pay the fees of a Rule 11-706 expert.
Hall v. Hall,
485 So. 2d 747, 750 (Ala. Civ. App. 1986) (recognizing inherent power of courts
to institute contempt proceedings as a method of coercing compliance with court
order);
In the Interest of S.L.T., 180 So. 2d 374, 378 (Fla. Dist. Ct.
App. 1965) (recognizing power of court to institute indirect contempt
proceedings on its own motion);
Ex parte Ray, 192 S.W.2d 225 (Ark. 1946)
(same).
B.
Authority to Order Contempt for Failure to Pay Fees
{12} Wife also
argues that the district court erred in holding her in contempt for failure to
pay the expert’s fees, asserting that a court cannot use its contempt power to
enforce ordinary civil judgments. Wife relies on
Hall v. Hall,
114 N.M.
378,
838 P.2d 995 (Ct. App. 1992), in which we stated:
Husband
generally contends that the use of contempt powers is not permissible to secure
compliance with an ordinary civil judgment such as the property division
judgment, and that wife should stand in no different shoes from any other
general creditor of husband. We agree with husband that contempt may not be
used to enforce ordinary civil judgments. In the domestic relations context, a
party may not be held in contempt for failure to pay a debt arising out of the
property division, but may be held in contempt for failure to pay a debt
arising out of an award of support or maintenance.
Id. at 387, 838 P.2d at 1004.
{13} Wife’s
reliance on
Hall is misplaced. The district court did not use its civil
contempt power to enforce a civil money judgment. Instead, the district court
invoked and exercised its civil contempt power to enforce its own order that
Wife pay her share of the Rule 11-706 expert witness fees. Therefore, we hold
that the district court appropriately exercised its contempt power when it
issued the order of contempt for failure to pay the Rule 11-706 expert’s fees.
{14} Because the
district court had authority to sua sponte issue the order to show cause why
Wife should not be held in contempt for failure to pay the Rule 11-706 expert’s
fees and to find her in contempt for her failure to pay the fees, we affirm the
district court’s first order of contempt.
2. Second
Order of Contempt (Periods of Responsibility)
{15} The purpose
of the second contempt order was to compel Wife’s compliance with the court
order scheduling Husband’s periods of responsibility with Child. As such, the
second order of contempt was also civil in nature.
See In re Klecan, 93
N.M. at 638, 603 P.2d at 1095. The contempt was also indirect because the
alleged contemptuous acts, failure to abide by the order scheduling Husband’s
periods of responsibility, took place outside the presence of the court.
Id.
at 639, 603 P.2d at 1096 (stating that “[d]irect contempts are contemptuous
acts committed in the presence of the court, while indirect, or constructive
contempts, are such acts committed outside the presence of the court”).
Therefore, the second order of contempt is classified as an indirect civil
contempt.
{16} Wife argues
that the district court violated her right to due process because neither
Husband’s initial motion or amended order to show cause provided notice of the
dates for which the district court actually held her in contempt.
{17} In cases of
indirect civil contempt, due process requires that a party be given notice of
the charges.
See Ex parte Fullen,
17 N.M. 394, 403-05,
128 P. 64, 66-67
(1912) (reversing an order of indirect civil contempt on the grounds that the
party held in contempt did not receive notice of one of the specific charges
upon which the contempt order was based);
First Midwest Bank/Danville v.
Hoagland, 613 N.E.2d 277, 286 (Ill. App. Ct. 1993) (stating that in
indirect civil contempt proceedings due process requires notice of the charges,
“an adequate description of the facts upon which the contempt charge is based,”
and that notice must be provided “within a reasonable time in advance of the
hearing”).
{18} Husband’s
initial motion and amended motion for an order to show cause provided Wife with
notice to defend the allegation that she failed to comply with the court order
scheduling Husband’s periods of responsibility on the following dates: November
30, 2006, December 3, 2006, and December 21, 2006, December 22, 2006 and
December 28, 2006. The record also reflects that Wife prepared a response
providing defenses for those specific dates. It is undisputed that Wife was not
given notice, prior to the hearing, that she was also charged with failing to
comply on December 23, 2006, December 31, 2006, and January 14, 2007, and that
the district court found Wife in contempt for failing to comply on those dates.
{19} Because Wife
was not provided with notice of all of the alleged dates of noncompliance prior
to the hearing on the order to show cause, her due process right to notice was
violated. We therefore hold that the district court erred when it held Wife in
contempt for failing to comply with the court order scheduling Husband’s
periods of responsibility with Child. We reverse the second order of contempt.
B. Failure
to Prove Ability to Comply and Willful Noncompliance
{20} Because we
reverse the second order of contempt on the above basis, we do not address
Wife’s argument that Husband failed to prove Wife was able to comply with the
order and willfully failed to comply.
{21} For the above
reasons, we affirm the first order of contempt concerning the payment of the
Rule 11-706 expert witness fees and reverse the second order of contempt
concerning Husband’s periods of responsibility with Child.
MICHAEL D. BUSTAMANTE, Judge
Topic Index for Papatheofanis v. Allen, No. 27,535
DR-CI Custodial
Interference