Marriage of Swanson

• Court: Colorado Court of Appeals
• Decided: October 10, 2024
• Docket: 23CA1852
• Status: Unknown

Opinion

23CA1852 Marriage of Swanson 10-10-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1852 City and County of Denver District Court No. 22DR30360 Honorable Andrew P. McCallin, Judge

In re the Marriage of

Melissa Nicole Swanson, n/k/a Melissa Nicole Campbell,

Appellant,

and

James Joseph Swanson,

Appellee.

JUDGMENT REVERSED AND ORDER VACATED

Division I Opinion by JUDGE SULLIVAN J. Jones and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 10, 2024

Rider Kafer, P.C., Jeremy R. Speckhals, Denver, Colorado, for Appellant

No Appearance for Appellee ¶1 Melissa Nicole Swanson, now known as Melissa Nicole

Campbell (mother), appeals the district court’s judgment finding her

in contempt and ordering her to pay attorney fees and costs to

James Joseph Swanson (father) as a remedial sanction. We reverse

the judgment and vacate the remedial sanction.

I. Relevant Facts

¶2 Mother moved from North Carolina to Colorado with the

parties’ two children, and she alleged that she fled to Colorado

because she was a victim of father’s domestic abuse. The Colorado

district court exercised temporary emergency jurisdiction, and it

entered a permanent civil protection order that restricted father’s

contact with mother.

¶3 The Colorado court’s temporary jurisdiction later terminated,

and a North Carolina court adopted the parties’ agreement on the

allocation of parental responsibilities concerning their children.

The decree directed that mother had sole custody of the children

and that in the event father requested parenting time, she “shall be

reasonable and shall act in good faith in accommodating [f]ather’s

request.” The Colorado court registered the North Carolina child

custody decree.

1 ¶4 A couple months later, father filed a motion for contempt. He

alleged that mother was violating the North Carolina decree by not

allowing him to have parenting time, and he alleged that she was

unreasonably requiring him to complete sobriety testing and

exercise his parenting time at a supervised visitation center. The

court issued the contempt citation.

¶5 During father’s attempts to serve the contempt citation, he

notified the court that he had been unable to locate or

communicate with mother. And he filed a motion for abduction

prevention measures, fearing that the children were in imminent

danger of abduction. He explained that mother hadn’t responded to

any communications, disconnected her cell phone, deactivated her

email addresses, quit her job, and terminated her attorney’s

representation. He further asserted that there were no signs that

mother or the children were still living at their home. After an ex

parte hearing, the court ordered the children to be located. Shortly

after that order, mother and the children reappeared.

¶6 A few months later, the court held the contempt hearing. The

court rejected father’s allegations that mother had acted

unreasonably and in bad faith concerning his parenting time

2 requests. But it determined that she “was in contempt for failing to

act reasonably and in good faith when she absconded with the

children and required [father] to file a motion for abduction

prevention orders.” As a remedial sanction, the court ordered

mother to pay the reasonable and necessary attorney fees and costs

father incurred to pursue the motion for abduction prevention

measures. And it directed that mother “may purge the contempt by

paying” father $11,768 for his attorney fees and costs.

II. Remedial Contempt

¶7 Mother contends that the district court erred by entering the

contempt judgment. She argues that her past contemptuous

conduct, which she was incapable of purging, couldn’t serve as the

basis for a remedial sanction and that because she couldn’t purge

her contempt, the court improperly awarded attorney fees and costs

as the only remedial sanction. We agree.

¶8 We review a court’s contempt judgment for an abuse of

discretion. In re Marriage of Sheehan, 2022 COA 29, ¶ 23. A court

abuses its discretion when it misapplies the law. Id. We review de

novo the court’s application of the law. See People in Interest of

K.P., 2022 COA 60, ¶ 22.

3 ¶9 A court may hold a party in contempt for “disobedience or

resistance” to a lawful court order. C.R.C.P. 107(a)(1). When the

court finds a party in contempt, it may impose remedial sanctions.

See C.R.C.P. 107(a)(5), (d)(2); In re Marriage of Nussbeck, 974 P.2d

493, 498 (Colo. 1999). Remedial sanctions are civil in nature and

are imposed to force the contemnor’s compliance with a lawful court

order or to compel the contemnor’s performance of an act within

their present ability to perform. See C.R.C.P. 107(a)(5); In re

Marriage of Webb, 284 P.3d 107, 110 (Colo. App. 2011). To impose

remedial sanctions, the court must specify the means by which the

contemnor may purge the contempt and find that the contemnor

has the “present . . . ability to perform the acts required to purge

oneself of contempt.” In re Estate of Elliott, 993 P.2d 474, 479 (Colo.

2000); see C.R.C.P. 107(d)(2).

¶ 10 “[A]n affirmative act carried out in the past that is not ongoing

and results in a contempt citation cannot be purged.” Aspen

Springs Metro. Dist. v. Keno, 2015 COA 97, ¶ 32. This is so because

a purge clause is designed “to coerce [the contemnor’s] compliance

with the court’s orders.” In re Marriage of Zebedee, 778 P.2d 694,

698 (Colo. App. 1988). And when “the contemnor cannot undo

4 what was done,” a remedial sanction is not available. Aspen

Springs, ¶ 32.

¶ 11 Here, the court held mother in contempt and imposed a

remedial sanction solely because she had absconded with the

children, requiring father to file a motion for abduction prevention

measures. But at the time of the court’s ruling, she didn’t have the

present ability to purge her contemptuous conduct. Her conduct

occurred early in the contempt proceedings, and after the court

issued an order for abduction prevention measures, she resurfaced

with the children. Mother can’t go back in time and undo what she

did in the past. Therefore, a remedial sanction wasn’t appropriate

under C.R.C.P. 107. See C.R.C.P. 107(a)(5), (d)(2); Aspen Springs,

¶¶ 32, 34.

¶ 12 And while a court may award costs and reasonable attorney

fees as a component of a remedial sanction, it can’t assess such an

award as the sole sanction. See C.R.C.P. 107(d)(2); see also Webb,

284 P.3d at 110 (“[W]here the contemnor commits a one-time

violation, incapable of being purged, attorney fees may not be

assessed as a remedial sanction.”).

5 ¶ 13 The court thus erred by entering the remedial contempt

judgment against mother. Given our conclusion, we need not

address mother’s additional contention challenging the contempt

judgment.

III. Disposition

¶ 14 We reverse the judgment and vacate the award of attorney fees

and costs to father.

JUDGE J. JONES and JUDGE LIPINSKY concur.