The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY June 2, 2022
2022COA60
No. 21CA0574, People in Interest of K.P. — Juvenile Court — Dependency and Neglect — Civil Protection Orders; Civil Procedure — Remedial and Punitive Sanctions for Contempt; Collateral Bar Rule
A division of the court of appeals addresses the scope of the
collateral bar rule in Colorado. Specifically, the division considers
whether a parent, after being held in contempt for violating
permanent protection orders in a dependency and neglect
proceeding, may challenge those orders as unconstitutional prior
restraints on her right to free speech despite failing to timely appeal
the protection orders themselves. The division answers no. It
concludes that, because the parent failed to timely appeal the
protection orders, and because none of the exceptions to the
collateral bar rule apply, the rule prevents the parent from bringing such a challenge. The division further concludes that the evidence
was sufficient to support the contempt judgment. COLORADO COURT OF APPEALS 2022COA60
Court of Appeals No. 21CA0574 Arapahoe County District Court No. 19JV158 Honorable Natalie T. Chase, Judge
The People of the State of Colorado,
Appellee,
In the Interest of K.P., L.P., and M.P., Children,
and Concerning C.P., a/k/a K.A.,
Appellant,
and C.P.,
Appellee.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE YUN Grove and Graham*, JJ., concur
Announced June 2, 2022
Ronald Carl, County Attorney, Kristi Erickson, Assistant City Attorney, Aurora, Colorado, for Appellee the People of the State of Colorado
Alison A. Bettenberg, Guardian Ad Litem
Ascend Counsel, LLC, Edward Milo Schwab, Denver, Colorado, for Appellant
Sherman & Howard, L.L.C., Richard Bednarski, Colorado Springs, Colorado, for Appellee C.P.
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2021. ¶1 The juvenile court found C.P., a/k/a K.A. (K.A.), in contempt
for violating permanent civil protection orders barring her from
discussing her children’s dependency and neglect case with most
third parties. At a hearing that occurred several months after it
had issued the protection orders, the court entered its judgment of
contempt and sentenced K.A. to six months in jail. K.A. now
appeals only the contempt judgment, arguing that the protection
orders violated her constitutional right to free speech and that
insufficient evidence supported the court’s judgment of contempt.
¶2 This appeal therefore requires us to determine whether K.A.,
in appealing the contempt judgment, may collaterally attack the
lawfulness of the underlying protection orders. We conclude that
she may not. Under the collateral bar rule, a party must obey a
court order — even an unconstitutional order — unless and until
that order is stayed, set aside, or reversed on appeal. With rare
exceptions, a party cannot challenge a court order by violating it.
This is so because the orderly and efficient administration of justice
would be jeopardized if parties could determine for themselves when
and how to obey a court order.
1 ¶3 Because K.A. did not timely appeal the protection orders, and
because none of the exceptions to the collateral bar rule apply, we
conclude that the rule precludes K.A. from collaterally challenging
the lawfulness, and therefore the constitutionality, of the protection
orders in an appeal of the contempt judgment. We also reject K.A.’s
argument that insufficient evidence supported the contempt
judgment. We thus affirm the judgment.
I. Background
¶4 This contempt proceeding followed K.A.’s contentious divorce
from C.P., the father of their three daughters, K.P., L.P., and M.P.,
as well as the family’s involvement in two dependency and neglect
cases.
A. Dependency and Neglect Proceedings
¶5 In 2017, the year before the divorce became final, the
Arapahoe County Department of Human Services filed a petition in
dependency and neglect alleging that the father was sexually
abusing the two younger girls. A jury, however, found that the
children were not dependent or neglected.
¶6 Two years later, the Department filed a second petition, this
time asserting that K.A. had coached the oldest daughter into
2 falsely reporting sexual abuse by her father as part of K.A.’s pattern
of emotionally abusing the girls. A jury found all three girls
dependent and neglected as to K.A., and the juvenile court ordered
her to comply with a treatment plan designed to give her “insight
into how [her] behaviors alienated and emotionally harmed her
children.” K.A. appealed the adjudication, but a division of this
court affirmed it. People in Interest of K.P., slip op. at ¶ 1 (Colo.
App. No. 19CA1161, Feb. 27, 2020) (not published pursuant to
C.A.R. 35(e)).
B. Protection Orders and Termination
¶7 Soon after, in April 2020, K.A. posted a “Petition to Protect
CHILDREN!” on the website change.org. In this posting, K.A.
alleged that, despite her daughters’ disclosure of sexual abuse by
their father, protective services, law enforcement, and mental health
professionals had all insisted that the girls live with him. The
petition included a video of the youngest daughter being interviewed
by K.A. and making an outcry of sexual abuse, as well as a video of
the oldest daughter’s journal entries disclosing sexual abuse by her
father — evidence that K.A. had never disclosed to the Department
or the police.
3 ¶8 In May 2020, the Department moved for a protection order
under section 19-1-114(2)(a), C.R.S. 2021. It alleged that K.A.’s
posting invaded the children’s privacy and showed that “any
progress in her treatment plan was feigned” and that she refused to
“own[] that she coached her children” into making outcries of sexual
abuse against their father. The court agreed that K.A. was not
acting in the girls’ best interests and granted the protection order
(the May protection order). Among other things, the court required
K.A. to take down the petition, prohibited her “from posting on
social media sites information related to the Minor Children and the
allegations of abuse or neglect associated with this case” (including
doing so through third parties), and obligated her to provide the
Department with the videos attached to the change.org petition.
The court warned that her failure to comply with the order could
“result in contempt proceedings and up to six months in jail.”
¶9 But K.A. refused to take down the petition, added copies of the
girls’ handwritten notes when the website hosting the video took it
down, and continued to post about the allegations on social media,
as well as on her own website. As a result of K.A.’s defiance of the
May protection order and her failure to engage in her treatment
4 plan, the Department filed two motions: one for a contempt citation
against K.A., and another to terminate her parental rights. The
juvenile court scheduled a hearing on both matters over two days in
late August 2020.
¶ 10 On the first day, the court found beyond a reasonable doubt
that K.A. had willfully violated the May protection order. It delayed
sentencing her for contempt until after the termination hearing,
which was set to continue through the next day. K.A., however,
failed to appear (or to have counsel appear on her behalf) the
following morning, so the court issued a bench warrant and did not
proceed with sentencing. At the end of the hearing, the court
terminated K.A.’s parent-child legal relationships with her three
daughters. The court also sealed the court records, stating that no
party was to release any filing in the case to any third party or ask
other people to post anything on the internet regarding the case.
¶ 11 Immediately after the termination hearing, the father moved
for a civil protection order in the same case. The juvenile court
issued a temporary protection order that same day and scheduled a
hearing on a permanent protection order for September 2020. After
the hearing, the court entered a permanent civil protection order
5 under section 13-14-106, C.R.S. 2021, restraining K.A. from
contacting the three girls or their father, who had custody (the
September protection order). The order adds that K.A. is “not to
talk to 3rd party about case except for [attorneys] or to use 3rd
party to post on internet.”
¶ 12 K.A. then filed a C.R.C.P. 59 motion, asking the juvenile court
to reconsider the breadth of the September protection order.
Specifically, K.A. argued that the order’s “language prohibiting her
from talking to any third party about th[e] case, other than her
attorney,” was “excessively broad” and violated her “constitutionally
protected rights.”
¶ 13 The juvenile court agreed — at least in part. It narrowed the
September protection order so that K.A. could communicate about
the case with her therapists and doctors, as well as her attorneys
(the December protection order). The December protection order
says,
Because this Court is certain that more harm will occur from future postings regarding the allegations of sexual abuse in this case, the Court first ORDERS that [K.A.] shall be restrained from posting any information related to the allegations of abuse or neglect which were investigated during this case on
6 any website or social media outlet. This includes posting through a third party, which is subject to the provisions outlined above, as [K.A.] may be held liable for directing any third party to post such information. Further, the Court further ORDERS that [K.A.] shall be restrained from discussing the allegations of abuse or neglect which were investigated during this case or providing any case-related information, including but not limited to any documents within the case file, to any third party who does not have a legal duty of confidentiality to [K.A.] Thus, [K.A.] may discuss this case with her attorneys, therapists, or doctors, but she may not direct these third parties to release or disseminate case-related information to any other third party or to the public.
¶ 14 Though the court recognized K.A.’s First Amendment
concerns, it concluded that the December protection order passed
constitutional muster. The order, the court explained, was the least
intrusive means necessary to serve the government’s compelling
interests in protecting domestic abuse victims and the privacy of
children involved in dependency and neglect proceedings. The
court further found that, “based on the history of this case and
[K.A.’s] repeated and relentless dissemination of the false
allegations of abuse, Father and all three children will undoubtedly
7 suffer great, grave, and certain harm as a result of continued
expression.”
C. Contempt Proceeding
¶ 15 On December 31, 2020, the father moved for a contempt
citation against K.A. He alleged that an article published three days
earlier in an online edition of the Colorado Springs Gazette includes
details about the dependency and neglect case that K.A. must have
shared, either directly with the author or through a third party, in
violation of the juvenile court’s protection orders.
¶ 16 The article, titled “A sick mom, alone in a cell, on Christmas
Eve,” does not include anyone’s name, but it does include, among
other things, (1) K.A.’s experience of having COVID-19 in jail1;
(2) K.A.’s “unwavering belief” that the father sexually abused the
children; (3) that K.A. is in jail for seventeen months for violating a
“gag order” in the case; and (4) that K.A. wrote to her friend, “A
system shouldn’t be able to destroy someone’s life. Punished for
protecting, for speaking truth, for loving my daughters so much — I
would do anything for them.” Even though the case was sealed, the
1K.A. was serving time in jail on prior contempt citations that are not part of this appeal.
8 week after the article’s publication, the juvenile court received two
voicemail messages urging it to release K.A. from jail.
¶ 17 The juvenile court held a hearing on the contempt citation over
two days in March 2021. The father and K.A.’s friend testified.
Over K.A.’s objection, the court admitted into evidence seven
recordings of jail phone calls between K.A. and her friend during
which, the father argued, K.A. had shared information in violation
of the protection orders. The court also admitted the Gazette article
and a letter K.A. had written to her friend from jail.
¶ 18 On the second day of the hearing, the court found, beyond a
reasonable doubt, that K.A. had willfully disobeyed its orders not to
speak about the case with any third party who did not owe a duty of
confidentiality to K.A. As pertinent here, the court found the
following:
the Gazette article includes a quote from K.A., as well as
information that the author could have learned only from
K.A., namely the length of K.A.’s jail sentence;
the article mentions the allegations of abuse;
the article is not, as K.A. argued at the hearing, about
the incidence of COVID-19 in the jail, which would have
9 been “appropriate,” but, rather, is “about one
individual[,] . . . about her circumstances of being in the
jail”;
several of the recorded phone calls imply either that the
author of the Gazette article was in the room with K.A.’s
friend or that the friend would pass information to the
author;
the recordings referred to K.A.’s attorneys moving to
withdraw, “which is part of this case, [and] which is in
direct violation of” the orders;
K.A. talked about asking for in-home detention as an
alternative to incarceration, “which is a direct pleading
that was put into this case,” in violation of the orders;
K.A. and her friend talked about “the unfairness of this
case, . . . in direct violation of” the orders; and
the two also talked about the court “specifically”
“numerous” times, and they discussed that the court
“specifically ha[d] violated the numerous rights of” K.A.
10 The juvenile court then sentenced K.A., who was already serving
seventeen months in jail on three other contempt citations, to an
additional six months.
¶ 19 K.A. now appeals the juvenile court’s judgment of contempt
and her six-month jail sentence.
II. Analysis
¶ 20 K.A. argues that the juvenile court’s September and December
protection orders violated her First Amendment rights and,
therefore, that she cannot be punished for violating them. She also
argues that insufficient evidence supports the juvenile court’s
contempt judgment. After discussing the standard of review, we
address each argument in turn.
A. Standard of Review
¶ 21 A finding of contempt is within the juvenile court’s discretion
and may not be reversed absent an abuse of that discretion. People
in Interest of K.S-E., 2021 COA 93, ¶ 18. A court abuses its
discretion when its ruling is manifestly arbitrary, unreasonable,
unfair, or contrary to law. Id.
¶ 22 “However, the lawfulness of a district court’s order — the
violation of which may give rise to a finding of contempt — is
11 subject to de novo review.” Id. And we review the record de novo to
determine whether the evidence was sufficient to sustain the
contempt judgment. Clark v. People, 232 P.3d 1287, 1291 (Colo.
2010).
B. K.A.’s First Amendment Challenge
¶ 23 K.A. argues that the September and December protection
orders were unlawful because they were impermissible prior
restraints on her right to free speech. The father counters that K.A.
failed to timely appeal the September and December protection
orders and, as a result, cannot now challenge their
constitutionality. We agree with the father.
¶ 24 Although K.A. did not appeal the protection orders, she did
timely appeal the contempt order. See C.R.C.P. 107(f) (“For the
purposes of appeal, an order deciding the issue of contempt and
sanctions shall be final.”). And because the juvenile court’s
contempt judgment was based on its finding that K.A. willfully
violated the protection orders, our review of the contempt judgment
necessarily implicates the question of whether the protection orders
were constitutional and thus lawful. See C.R.C.P. 107(a)(1)
12 (defining contempt to include “disobedience . . . by any person
to . . . any lawful . . . order of the court”).
¶ 25 But that does not end our inquiry regarding whether the
protection orders are reviewable. Under the collateral bar rule, a
party generally must comply with even an unlawful order or risk
being held in contempt because
it is fundamental to our legal system that “all orders and judgments of courts must be complied with promptly. If a person to whom a judge directs an order believes that order is incorrect the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal. Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect.”
People v. Coyle, 654 P.2d 815, 820 (Colo. 1982) (quoting Maness v.
Meyers, 419 U.S. 449, 458 (1975)); see also K.S-E., ¶ 35.
¶ 26 The United States Supreme Court’s decision in Walker v. City
of Birmingham, 388 U.S. 307 (1967), illustrates this principle.
There, Birmingham officials obtained an injunction prohibiting
Dr. Martin Luther King, Jr., and other civil rights protesters from
parading without a permit. Id. at 308. Rather than appealing the
injunction, the protesters disobeyed it. Id. They were subsequently
13 charged with violating the injunction, fined, and sentenced to jail.
Id. at 311-12. The Court noted that the ordinance, which provided
the basis for the injunction, “unquestionably raise[d] substantial
constitutional issues” and that “[t]he breadth and vagueness of the
injunction itself would also unquestionably be subject to
substantial constitutional question.” Id. at 316-17. Nonetheless,
the Court ruled that the protesters could not collaterally raise those
constitutional issues in the contempt proceedings. Id. at 317.
¶ 27 The Court found it significant that the protesters had not
sought to appeal the order they violated. Id. at 318-19. The Court
declared, “[t]his case would arise in quite a different constitutional
posture if the [protesters], before disobeying the injunction, had
challenged it in the Alabama courts, and had been met with delay
or frustration of their constitutional claims.” Id. at 318. Thus,
despite the potential illegality of the injunction, the Court upheld
the protesters’ convictions because the protesters “were [not]
constitutionally free to ignore all the procedures of the law and
carry their battle to the streets.” Id. at 321. The Court observed
that “no man can be judge in his own case, however exalted his
14 station, however righteous his motives, and irrespective of his race,
color, politics, or religion.” Id. at 320-21.
¶ 28 We similarly conclude that, because K.A. did not timely appeal
the underlying protection orders when they became final, the
collateral bar rule precludes her from challenging the
constitutionality of the orders in her appeal of the contempt
judgment. See § 19-1-104(7), C.R.S. 2021 (“If the civil protection
order is made permanent pursuant to the provisions of section
13-14-106, the civil protection order remains in effect upon
termination of the juvenile court action.”). While we acknowledge
that K.A. has raised substantial constitutional issues regarding the
protection orders, the juvenile court’s order “must be obeyed by the
parties until it is reversed by orderly and proper proceedings.”
United States v. United Mine Workers of Am., 330 U.S. 258, 293
(1947); see also State v. Baize, 2019 UT App 202, ¶¶ 12-14
(collateral bar rule precludes prior-restraint and vagueness
challenges to a civil protection order in a prosecution for violating
the order). Because K.A. decided to disobey the protection orders
rather than challenge them on appeal, she cannot collaterally raise
those constitutional issues in this appeal.
15 ¶ 29 Nor can we conclude that this case falls under any of the
exceptions to the collateral bar rule.
¶ 30 First, if the issuing court lacks subject-matter jurisdiction over
the underlying controversy or personal jurisdiction over the parties
to it, then its order may be violated without the imposition of a
contempt sanction. In re Novak, 932 F.2d 1397, 1401 (11th Cir.
1991). K.A. has raised no such argument here. And the juvenile
court had subject matter jurisdiction to enter civil protection orders
under section 19-1-104(7).
¶ 31 Second, if no “adequate and effective remedies exist for orderly
review of the challenged ruling,” then “the accused contemnor may
challenge the validity of the disobeyed order on appeal from his
criminal contempt conviction and escape punishment if that order
is deemed invalid.” Novak, 932 F.2d at 1401. But as discussed
above, K.A. had an adequate and effective remedy to challenge the
protection orders — an appeal. And K.A. was aware of this remedy
in December 2020 because she discussed with her friend the
possibility of hiring a First Amendment expert and appealing the
protection orders. She just did not seek that remedy.
16 ¶ 32 Third, the Supreme Court has recognized an exception to the
collateral bar rule when compliance with an order “could cause
irreparable injury.” Maness, 419 U.S. at 460; see also K.S-E., ¶ 37
(“[I]f an order is found to be unlawful under the Fifth Amendment,
and if obedience to the order carries with it a substantial risk of
irreparable harm, a party’s failure to comply with the order cannot
support a finding of contempt.”). “Although several commentators
have argued for the application of the Maness exception to
deliberate violations of ex parte injunctions restraining First
Amendment speech rights, thus far, the exception has not [been]
extended beyond the limited confines of [the] self-incrimination
[context].” In re Establishment Inspection of Hern Iron Works, Inc.,
881 F.2d 722, 728 (9th Cir. 1989) (citations omitted); see also
United States v. Hendrickson, 822 F.3d 812, 819 (6th Cir. 2016)
(Although “the order implicates [the contemnor’s] First Amendment
rights, it does not present the type of scenario that might rise to the
level of an irretrievable surrender of a constitutional guarantee.”).
¶ 33 Finally, “court orders that are transparently invalid or patently
frivolous need not be obeyed.” Novak, 932 F.2d at 1402. But to
protect the judiciary’s dignity and authority, “we must indulge . . . a
17 heavy presumption in favor of the validity of every court order.” Id.
at 1403. “Only when there is no colorable, nonfrivolous argument
to support the order being reviewed should a contemnor be excused
from his disobedience of the order.” Id. We cannot say that no
colorable, nonfrivolous argument supports the validity of the
juvenile court’s protection orders. See In re Marriage of Newell,
192 P.3d 529, 536 (Colo. App. 2008) (concluding that a parent’s
exercise of free speech that “threatened the child with physical or
emotional harm, or had actually caused such harm,” could
establish a state interest sufficiently compelling to curtail the
parent’s free speech rights).
¶ 34 For all these reasons, we conclude that K.A. cannot collaterally
challenge the constitutionality of the protection orders.
D. K.A.’s Sufficiency of the Evidence Challenge
¶ 35 K.A. next argues that the evidence was insufficient to support
the juvenile court’s contempt judgment. Specifically, K.A. argues
that the evidence did not establish that she (1) had knowledge of
the September and December protection orders or (2) willfully
refused to comply with those orders. We are not persuaded.
18 ¶ 36 Punitive sanctions — the type imposed against K.A. — “are
criminal in nature and are designed to punish ‘by unconditional
fine, fixed sentence of imprisonment, or both, for conduct that is
found to be offensive to the authority and dignity of the court.’”
K.S-E., ¶ 24 (quoting In re Marriage of Cyr, 186 P.3d 88, 91 (Colo.
App. 2008); see also C.R.C.P. 107(a)(4). Punitive sanctions must be
supported by factual findings establishing beyond a reasonable
doubt that “(1) a lawful order existed; (2) the contemnor had
knowledge of the order; (3) the contemnor had the ability to comply
with the order; and (4) the contemnor willfully refused to comply
with the order.” People ex rel. State Eng’r v. Sease, 2018 CO 91,
¶ 23.
¶ 37 In analyzing the sufficiency of the evidence supporting the
juvenile court’s contempt judgment, we consider “whether the
relevant evidence, both direct and circumstantial, when viewed as a
whole and in the light most favorable to the [father], is substantial
and sufficient to support a conclusion by a reasonable mind that
[K.A.] is guilty of the [contempt] charge beyond a reasonable doubt.”
Clark, 232 P.3d at 1291 (citation omitted). We “may not ‘act as a
trier of facts to ascertain the sufficiency of evidence to support a
19 contempt charge. Where the trial court has jurisdiction, and
regularly pursues its authority, and there is evidence of contempt,
its decision on the facts is conclusive.’” In re Marriage of Herrera,
772 P.2d 676, 678 (Colo. App. 1989) (quoting Wall v. Dist. Ct.,
146 Colo. 74, 80, 360 P.2d 452, 455 (1961)).
¶ 38 Viewing the evidence in the light most favorable to the father,
we conclude that the evidence was sufficient to support the court’s
findings.
¶ 39 First, the record supports the juvenile court’s finding that K.A.
was informed of the protection orders through the court and her
attorneys. K.A. was present at the hearing on September 23, 2020,
when the court announced the terms of the September 2020
protection order, and her attorneys sought reconsideration of that
order under C.R.C.P. 59. The court’s ruling on K.A.’s Rule 59
motion and the amended protection order were served on K.A.’s
counsel in December 2020.
¶ 40 Additionally, K.A. repeatedly said during her phone
conversations from jail that she “can’t talk about that” —
statements that K.A. asserts evidenced her attempt to comply with
the protection orders. K.A. could not attempt to comply with orders
20 of which she was unaware, so this evidence supports the juvenile
court’s finding that she was in fact aware of the orders. And while
K.A. claims these phone calls occurred before the issuance of the
December protection order, and thus before she became aware of it,
the record reflects that some of the conversations occurred after
that order. The record therefore supports the juvenile court’s
finding that K.A. was aware of the protection orders.
¶ 41 Second, the record supports the juvenile court’s finding that
K.A. willfully violated the protection orders.2 The Gazette article
includes a quote from K.A., as well as information that the author
could have learned only from K.A. In several recorded phone calls
from jail, K.A. talked with her friend about working with the author
of the Gazette article. Specifically, K.A. told her friend to “[s]tay
2 The September protection order prohibited K.A. from speaking with third parties (except for her attorneys) about the dependency and neglect case or from using third parties to post information about the case on the internet. That order was in effect and enforceable until the juvenile court issued the December protection order, which modified the earlier order only slightly. The December protection order contained the same proscriptions as the September order, except that the December order allowed K.A. to communicate with third parties with whom she had a confidential relationship (e.g., doctors, therapists, and attorneys). The court found that K.A. violated these orders during several phone calls with her friend between mid-October and the end of December 2020.
21 with” the author and “see if maybe you can make that work.” In
another call with K.A., the friend implied that she had the author of
the Gazette article in the same room with her, saying that “good
things” were happening. And K.A. discussed with her friend several
filings in the case, such as her request for in-home detention and
the withdrawal of her attorneys, in violation of the protection
orders.
¶ 42 Although K.A. argues that her jail phone calls show that she
was trying to comply with the protection orders, the record supports
the juvenile court’s contrary conclusion. The court found that
K.A.’s behavior was indicative of someone who was surreptitiously
trying to get around the court’s orders. For instance, the court
found that K.A.’s letter to her friend directed the friend to
communicate with her in a manner that would not be detected.
When, as here, “the evidence is conflicting, a reviewing court may
not substitute its conclusions for those of the trial court merely
because there may be credible evidence supporting a different
result.” In re Estate of Foiles, 2014 COA 104, ¶ 19.
¶ 43 We therefore conclude that the juvenile court did not abuse its
discretion by finding K.A. in contempt.
22 III. Conclusion
¶ 44 For these reasons, we affirm the juvenile court’s judgment.
The father’s request for costs must be sought in the juvenile court.
See C.A.R. 39.
JUDGE GROVE and JUDGE GRAHAM concur.