                IN THE SUPREME COURT, STATE OF WYOMING

                                             2013 WY 83

                                                                    APRIL TERM, A.D. 2013


                                                                             July 10, 2013


BRANDON LEE JENSEN,

Appellant
(Plaintiff),

v.                                                                  No. S-12-0279

MARGARET E. MILATZO-JENSEN,

Appellee
(Defendant).


                       Appeal from the District Court of Laramie County
                        The Honorable Thomas T.C. Campbell, Judge


Representing Appellant:

        Brandon L. Jensen, pro se, of Budd-Falen Law Offices, LLC, Cheyenne, Wyoming.

Representing Appellee:

        No appearance.


Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Justice.

[¶1] Appellant, Brandon Lee Jensen (Father), challenges an order from the district
court holding him in contempt for failing to comply with an order awarding attorney’s
fees to Appellee, Margaret E. Milatzo-Jensen (Mother). We recently reversed the district
court’s order awarding attorney’s fees to Mother in Jensen v. Milatzo-Jensen, 2013 WY
27, 297 P.3d 768 (Wyo. 2013) (Jensen I). As a consequence of our reversal of the
underlying fee order, we conclude that the contempt order must also be set aside, and we
reverse.

                                          ISSUE

[¶2] The sole issue presented for our review is whether the district court’s contempt
order must be set aside following reversal of the underlying order awarding attorney’s
fees.

                                          FACTS

[¶3] We recently decided several issues connected with this litigation in Jensen I. As
discussed in that opinion, Father challenged the district court’s award of attorney’s fees to
Mother, which were incurred as a result of Father’s motions to compel answers to
interrogatories. Id., ¶ 34, 297 P.3d at 779. The district court ordered Father to reimburse
Mother $2,796.50 within 90 days of entry of the order. On appeal, this Court agreed with
Father that Mother had failed to establish the reasonableness of the attorney’s fees, and
concluded that the district court abused its discretion in awarding those fees. Id., ¶ 38,
297 P.3d at 780.

[¶4] During the pendency of that appeal, however, Father failed to pay Mother’s
attorney’s fees in accordance with the district court’s order. As a result, on July 10, 2012,
Mother filed a motion for an order to show cause as to why Father should not be held in
contempt of court for failing to pay the attorney’s fees. After a hearing on Mother’s
motion, the district court held that Father was in contempt for failing to pay the attorney’s
fees to Mother within 90 days of the court’s order. A written order holding Father in
contempt of court was entered on September 26. As a sanction for contempt, the court
ordered Father to pay Mother an additional $600.00 in attorney’s fees. Father filed a
timely appeal.

                                STANDARD OF REVIEW

[¶5] Whether the district court’s contempt order must be set aside following reversal of
the underlying attorney fee order is a question of law. We review questions of law de
novo. Plymale v. Donnelly, 2007 WY 77, ¶ 21, 157 P.3d 933, 938 (Wyo. 2007).



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                                         DISCUSSION

[¶6] Father’s brief, submitted prior to the issuance of our decision in Jensen I,
challenges the district court’s contempt order on the grounds that he had an “equitable
right of setoff” for amounts he claims were owed to him by Mother for child support.
Mother did not submit a brief or otherwise appear in this Court. Although the parties
have not requested an opportunity to provide supplemental briefing or argument
following our decision in Jensen I, we will proceed to determine, sua sponte, whether the
district court’s contempt order must be set aside as a result of our reversal of the district
court’s award of attorney’s fees.

[¶7] The law in Wyoming is well-settled that “Whether the adjudication of contempt
‘survives the avoidance of [the] underlying order depends on the nature of the contempt
decree. If the contempt is criminal it stands; if it is civil it falls.’” See, e.g., In Interest of
C.N., 816 P.2d 1282, 1285 (Wyo. 1991) (quoting Ager v. Jane C. Stormont Hospital and
Training School for Nurses, 622 F.2d 496, 499 (10th Cir. 1980)). As explained in In
Interest of C.N.,

               The purpose of a civil contempt is to compel a party to
               comply with a lawful order. Horn v. District Court, Ninth
               Judicial District, 647 P.2d 1368 (Wyo. 1982). The purpose of
               a criminal contempt is to punish. Id.; Tracy, Green &
               Company v. Warner, 704 P.2d 1306 (Wyo. 1985).

Id., 816 P.2d at 1285 (emphasis in original). In Ager, the Tenth Circuit elaborated more
fully on the difference between civil and criminal contempt:

               The primary purpose of a criminal contempt is to punish
               defiance of a court’s judicial authority. Accordingly, the
               normal beneficiaries of such an order are the courts and the
               public interest. Norman Bridge Drug Co. v. Banner, 529 F.2d
               822 (5th Cir. 1976). On the other hand, civil contempt is
               characterized by the court’s desire “to compel obedience of
               the court order or to compensate the litigant for injuries
               sustained from the disobedience.” Id. at p. 827. The remedial
               aspects outweigh the punitive considerations. Thus, the
               primary beneficiaries of such an order are the individual
               litigants. The judicial system benefits to a lesser extent.
               United States v. Wendy, 575 F.2d 1025 (2d Cir. 1978).

622 F.2d at 499-500. Additionally, criminal contempt proceedings are independent
criminal actions and must be conducted in accordance with W.R.Cr.P. 42. Swain v. State,
2009 WY 142, ¶¶ 15-16, 220 P.3d 504, 508-09 (Wyo. 2009) (citing Garber v. United


                                                2
Mine Workers of America, 524 P.2d 578, 579 (Wyo. 1974)).1


1
    W.R.Cr.P. 42 provides, in relevant part, as follows:

                   (b) Direct contempt proceedings. – A criminal contempt may be
                   punished summarily if the judge saw or heard the conduct constituting
                   the contempt and the conduct occurred in the immediate view and
                   presence of the court. It may be dealt with immediately or, if done
                   without unnecessary delay and to prevent further disruption or delay of
                   ongoing proceedings, may be postponed to a more convenient time. The
                   judgment of guilt of contempt shall include a recital of those facts upon
                   which the adjudication is based. Prior to the adjudication of guilt the
                   judge shall inform the accused of the accusation and afford the accused
                   an opportunity to show why the accused should not be adjudged guilty of
                   contempt and sentenced therefor. The accused shall be given the
                   opportunity to present evidence of excusing or mitigating circumstances.
                   The judgment shall be signed by the judge and entered of record.
                   Sentence shall be pronounced in open court and reduced to writing,
                   signed by the judge and entered of record. Rule 32 shall not apply to
                   judgment and sentencing for direct contempt.

                   (c) Indirect (constructive) contempt proceedings. – A criminal contempt,
                   except as provided in subdivision (b) concerning direct contempt, shall
                   be prosecuted in the following manner:

                           (1) Order to Show Cause. – On the court’s motion or upon
                           affidavit of any person having knowledge of the facts, a judge
                           may issue and sign an order directed to the accused, stating the
                           essential facts constituting the criminal contempt charged and
                           requiring the accused to appear before the court and show cause
                           why the accused ought not be held in contempt of court. The
                           order shall specify the time and place of the hearing, with a
                           reasonable time allowed for preparation of a defense.

                           (2) Motions; Answer. – The accused, personally or by counsel,
                           may move to dismiss the order to show cause, move for a
                           statement of particulars or answer such order by way of
                           explanation or defense. All motions and the answer shall be in
                           writing unless specified otherwise by the judge. An accused’s
                           omission to file motions or answer shall not be deemed as an
                           admission of guilt of the contempt charged.

                           (3) Order of Arrest; Bail. – If there is good reason to believe the
                           accused will not appear in response to the order to show cause
                           the judge may issue an order of arrest of the accused. The
                           accused shall be admitted to bail in the manner provided by these
                           rules.




                                                       3
[¶8] In the present case, it is clear from the record that the district court held Father in
civil contempt. In imposing an additional $600.00 in attorney’s fees, which were
incurred as a result of Mother’s attempts to collect the original attorney fee award, the
district court stated that “I’m going to direct the original sanction. There’s no other need
for a sanction. The only sanction for violating the court order accepting Mr. Jensen’s
representations of the facts will be that the judgment be entered for those previous
attorney’s fees and an additional $600.” The additional $600.00 in attorney’s fees were
intended to compensate Mother for costs incurred as a result of Father’s failure to comply
with the order awarding attorney’s fees to Mother. Further, the district court did not give
any indication that the $600.00 sanction was intended as a fine, and the court did not
make any reference to, or attempt to comply with, W.R.Cr.P. 42. Because the district


                      (4) Arraignment; Hearing. – The accused shall be arraigned at
                      the time of the hearing, or prior thereto upon the request of the
                      accused. A hearing to determine the guilt or innocence of the
                      accused may follow a plea of not guilty or may be set for trial at
                      a later date or time. The judge may conduct a hearing without
                      assistance of counsel or may be assisted by the attorney for the
                      state or by an attorney appointed by the court for that purpose.
                      The accused is entitled to be represented by counsel, have
                      compulsory process for the attendance of witnesses, and may
                      testify in his own defense. Unless the charged contempt is tried
                      to a jury as provided in subdivision (e), all issues of law and fact
                      shall be heard and determined by the judge.

                      (5) Disqualification of Judge. – If the contempt charged involves
                      disrespect to or criticism of a judge, that judge is disqualified
                      from presiding at the hearing and shall assign the matter to
                      another judge.

                      (6) Verdict; Judgment. – At the conclusion of the hearing the
                      judge shall sign and enter of record a judgment of guilty or not
                      guilty. In addition to the requirements of Rule 32, a judgment of
                      guilt for contempt of court shall include a recital of the facts
                      constituting the contempt.

                      (7) Sentence. – Unless an accused may be sentenced to the
                      penitentiary, a presentence investigation is not required but may
                      be ordered. In other respects, Rule 32 shall apply to sentencing
                      for contempt.

              (d) Punishment. – Punishment for contempt may not exceed the criminal
              jurisdiction of the court. A sanction for contempt of court may be
              imposed by a justice of the supreme court, a judge or commissioner of a
              district court, a circuit court judge or magistrate or a municipal judge.




                                                   4
court’s order held Father in civil contempt of court, that order must be set aside following
our reversal of the underlying fee order in Jensen I.

[¶9]   Reversed.




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