PAPATHEOFANIS v. Allen

2009 NMCA 084, 215 P.3d 778, 146 N.M. 840
CourtNew Mexico Court of Appeals
DecidedJune 30, 2009
Docket27,535
StatusPublished
Cited by7 cases

This text of 2009 NMCA 084 (PAPATHEOFANIS v. Allen) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
PAPATHEOFANIS v. Allen, 2009 NMCA 084, 215 P.3d 778, 146 N.M. 840 (N.M. Ct. App. 2009).

Opinion

OPINION

VIGIL, Judge.

{1} This case concerns two orders of contempt against Wife arising out of the domestic relations ease between Wife and her former spouse (Husband). We affirm in part and reverse in part.

BACKGROUND

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.

DISCUSSION

{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 noncomplianee 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, 118 S.Ct. 1860, 141 L.Ed.2d 131 (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

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Cite This Page — Counsel Stack

Bluebook (online)
2009 NMCA 084, 215 P.3d 778, 146 N.M. 840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/papatheofanis-v-allen-nmctapp-2009.