Colorado court reverses denial of counsel in contempt case

The Colorado Court of Appeals overturned a January 2022 contempt order, agreeing with the appellant that the district court had abused its discretion in the process due to the way it handled the right to counsel. In re the Marriage of Weinraub, No. 22CA0267 (Colo. App. July 13, 2023) (unpublished). 

In its analysis, the court took exception to the concept of a firm line between a civil and criminal contempt analysis.  The relevant rule of civil procedure, C.R.C.P. 107, “distinguishes between two types of contempt, direct and indirect, and two types of sanctions, punitive [criminal] and remedial [civil]." However, while the right to counsel ordinarily attaches only to punitive contempt matters, the Weinraub court noted that both types of sanctions involve the possibility of incarceration.

The Weinraub court stated that it was unable to discern the trial court's classification of the January 2022 hearing as remedial or punitive.  It reasoned that because father was represented for an earlier contempt hearing but was unrepresented for the January 2022 contempt hearing, the January 2022 hearing at issue appeared to have been intended as remedial in nature. Id. at para. 30.  Nevertheless, the district court actually imposed a specific term of imprisonment in its January 2022 order, a sanction that is ordinarily punitive. Id. at  31. 

Furthermore, in making the sentencing determination for its January 2022 order, "[the district court] specifically tied the sentence to the previous punitive sanction, saying the sentence was 'double what the previous sentence was[,]'" and " the [initial] sanction did not provide that it would end when the contempt was purged," which is a requirement of remedial sanctions. Id.  On the other hand, if the sanction was in fact intended to be punitive, the district court failed to make the requisite findings.  In other words, the district court failed to follow appropriate procedure for both civil and criminal contempt:

Regardless of the nature of the sanction, the district court’s order cannot stand. If it was intended to be a further remedial sanction for continued nonperformance of his support obligations, the district court did not make a finding that father had the present ability to make the payments... In other words, the sanction did not provide that father could end the incarceration by coming into compliance... To the extent the jail sentence was intended to be punitive, the district court erred in several ways. First, father was denied his right to counsel. Second, the court did not find that the continued nonpayment was offensive to the authority and dignity of the court. And third, by imposing a six-day jail sentence, then returning to the issue of punitive sanctions for the same contempt, the court effectively either (1) suspended part of the jail sentence based on father’s performance between March 2021 and January 2022 or (2) created a type of probationary sentence (with the court serving as probation officer). Neither is permissible. C.R.C.P. 107(e).

The decision seems promising, because it suggests a recognition by the appellate court of the fine--and sometimes arbitrary--line drawn between “civil” and “criminal” matters, a distinction with significant due process implications including the right to counsel.  Also notable is the fact that the court did not find the issue on appeal moot, despite the fact that appellant had already served the term of imprisonment, because the issue was “capable of repetition but evading review” and due to the stigma associated with a finding of contempt. Id. at para. 15.  

Note:  Pursuant to Colo. R. App. P. 35, unpublished decisions may not be precedential.  This case is discussed here for informational purposes only.  Please consult with your state and local rules.