The Colorado Court of Appeals issued its opinion in In re the Marriage of Webb and Christiansen on August 18, 2011.
Dissolution of Marriage—Shared Decision-Making—Evidence—Contempt—Remedial—Punitive—Attorney Fees.
In this post-dissolution of marriage proceeding, Dana Christiansen (mother) appealed the finding of contempt and award of attorney fees in favor of Craig Webb (father).
The court’s 2007 order provided for shared decision-making on all major health decisions, including “joint decisions with regard to non-routine health issues.” It also required the parties to notify and consult each other, if possible, for medical emergencies. The court found mother in remedial contempt for failing to confer with father on a non-emergency CAT scan of the child and required her to pay father’s attorney fees incurred in the contempt proceeding. However, the court “was unable to find punitive contempt.”
Mother argued that there was insufficient evidence to find her in contempt. However, the record supports the court’s findings that the CAT scan was not an emergency, and that mother failed to adequately contact father prior to the medical care. Accordingly, the court did not err in holding mother in contempt for violating the 2007 order.
Mother also argued that because she was unable to purge the contempt, she should not have been ordered to pay father’s attorney fees. Attorney fees can be awarded only as a component of remedial sanctions. Such a sanction is “imposed to force compliance with a lawful order or to compel performance of an act within the person’s power or present ability to perform.” Thus, when the court imposes a remedial contempt sanction, it must do so in writing or on the record, and must describe the means by which the person may purge the contempt. Therefore, where the contemnor commits a one-time violation, incapable of being purged, attorney fees may not be assessed as a remedial sanction. Here, no remedial sanction was or could have been imposed. The CAT scan contempt constituted a one-time violation of the 2007 order committed more than a year before father raised the issue with the court. By that time, mother could not undo what she had done. Hence, the attorney fees award was reversed.