                                                   132 Nev., Advance Opinion 419
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                  WESLEY ALLEN LEWIS,                                  No. 66497
                  Appellant,
                  vs.
                  MARIA DANIELA LEWIS, ATK/A
                                                                            FILED
                  MARIA DANIELA PERDOMO,                                    JUN 3 0 2016
                  Respondent.                                               RIC IE IC LINDEMAN
                                                                        un nsupRznsE CO
                                                                       BY
                                                                            4/   11     CLERK



                             Appeal from district court orders modifying child \cUstody and
                  holding appellant in contempt. Eighth Judicial District Court, Family
                  Court Division, Clark County; Gayle Nathan, Judge.
                             Affirmed in part, reversed in part, and remanded.


                  Greenberg Traurig, LLP, and Tami D. Cowden, Las Vegas,
                  for Appellant.

                  Fine & Price Law Group and Frances-Ann Fine, Henderson,
                  for Respondent.




                  BEFORE HARDESTY SAITTA and PICKERING, JJ.


                                                 OPINION

                  By the Court, SAITTA, J.:
                             The Sixth Amendment's right to counsel applies only to
                  criminal proceedings. Thus, in deciding whether that right applies to
                  contempt proceedings, the question is whether the contempt is civil or
                  criminal in nature. This opinion addresses whether a contempt order is
                  required to contain a purge clause, which gives the defendant the
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                 opportunity to purge himself of the contempt sentence by complying with
                 the terms of the contempt order, in order to be considered civil in nature
                 and avoid invoking the Sixth Amendment's right to counsel.
                              We hold that a contempt order that does not contain a purge
                 clause is criminal in nature. Because the district court's contempt order in
                 this case did not contain a purge clause, appellant's constitutional rights
                 were violated by imposing a criminal sentence without providing appellant
                 with counsel. We further hold that the district court abused its discretion
                 by improperly basing its decision to modify custody on appellant's failure
                 to comply with a court order and by failing to consider and set forth its
                 findings as to the NRS 125.480(4) (2009) factors for determining the
                 child's best interest.'
                                  FACTUAL AND PROCEDURAL HISTORY
                              Appellant Wesley Allen Lewis and respondent Maria Daniela
                 Lewis divorced in 2011. They had one minor child at the time of the
                 divorce. The divorce decree awarded Wesley and Maria joint physical
                 custody of the child and imposed upon Wesley an obligation to pay child
                 support to Maria.
                              In 2013, Maria filed a motion seeking to hold Wesley in
                 contempt of court for lack of payment of child support, among other things.
                 After a hearing, the district court issued an order on October 14, 2013,
                 determining that Wesley had child support arrearages in the amount of
                 $9,012.38. The district court also held Wesley in contempt of court for his
                 failure to pay child support and ordered him to pay $500 for each month

                       1-NRS  125.480(4) has since been repealed, and the statutory factors
                 for determining the child's best interest have been moved to NRS Chapter
                 125C.

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                that he had failed to pay child support, for a total of $5,500. The contempt
                order further included a jail sentence of ten days for each month that he
                had failed to pay child support, but the sentence was stayed contingent
                upon Wesley making all future payments. The district court also found
                Wesley willfully underemployed and determined Wesley's imputed gross
                monthly income based on what he would make if fully employed. Based on
                his imputed income, the district court ordered Wesley to pay child support
                of $91 per month, $50 per month for one-half of the child's health
                insurance, and $100 per month for child support arrearages. Lastly, the
                order required Wesley to take the child to tutoring classes on Mondays
                after school and to pay one-half of the cost of the tutoring.
                            In 2014, Maria filed a motion to modify custody and enforce
                the 2013 order. After a hearing at which Wesley represented himself, the
                district court entered an order awarding Maria primary physical custody
                of the child. The order also adopted prior findings from the 2013 order
                that Wesley was willfully underemployed, and it used Wesley's imputed
                gross monthly income from that order as the basis to modify his child
                support obligation subsequent to the modification of the custodial
                arrangement. The district court's order further required Wesley to
                continue taking the child to tutoring classes and to pay one-half of those
                costs. Finally, the district court held Wesley in contempt of court for his
                failure to pay three months of child support and take the child to tutoring
                classes over the summer The district court sentenced Wesley to 20 days
                in jail for each missed payment and 20 days for the missed tutoring
                classes, for a total of 80 days. The district court then stayed the contempt
                sentence on the condition that Wesley "follow the Orders of the Court."



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                                                                Mal
                            Wesley raises the following issues on appeal: (1) whether the
                district court violated his Sixth Amendment right to counsel by not
                appointing him counsel before holding him in criminal contempt,
                (2) whether the district court abused its discretion by modifying the child
                custody arrangement, and (3) whether the district court abused its
                discretion by ordering Wesley to continue to pay for half of the child's
                tutoring expenses.
                                              DISCUSSION
                Wesley's Sixth Amendment right to counsel was violated by the district
                court's contempt order
                            Wesley argues that because the district court's order of
                contempt was criminal in nature, he had a Sixth Amendment right to
                counsel during the proceedings before the district court. We normally
                review an order of contempt for abuse of discretion. In re Water Rights of
                the Humboldt River, 118 Nev. 901, 907, 59 P.3d 1226, 1230 (2002).
                However, we review constitutional issues de novo.     Jackson v. State, 128
                Nev. 598, 603, 291 P.3d 1274, 1277 (2012).
                      The district court's contempt order was criminal in nature
                            [T]he Sixth Amendment guarantee of the right to
                            counsel applies only in criminal .prosecutions.
                            Whether a contempt proceeding is classified as
                            criminal or civil in nature depends on whether it is
                            directed to punish the contemnor or, instead,
                            coerce his compliance with a court directive.
                            Criminal sanctions are punitive in that they serve
                            the purpose of preserving the dignity and
                            authority of the court by punishing a party for
                            offensive behavior. In contrast, civil contempt is
                            said to be remedial in nature, as the sanctions are
                            intended to benefit a party by coercing or
                            compelling the contemnor's future compliance, not
                            punishing them for past bad acts. Moreover, a
                            civil contempt order is indeterminate or
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                            conditional; the contemnor's compliance is all that
                            is sought and with that compliance comes the
                            termination of any sanctions imposed. Criminal
                            sanctions, on the other hand, are unconditional or
                            determinate, intended as punishment for a party's
                            past disobedience, with the contemnor's future
                            compliance having no effect on the duration of the
                            sentence imposed.
                Rodriguez v. Eighth Judicial Dist. Court, 120 Nev. 798, 804-05, 102 P.3d
                41, 45-46 (2004) (citations omitted). In Rodriguez, the district court issued
                a contempt order for Rodriguez to spend 25 days in jail for failing to pay
                child support, with the possibility of early release upon his payment of the
                outstanding arrearages. Id. at 804, 102 P.3d at 45. The Rodriguez court
                reasoned that the contempt order was civil in nature because "[t]he
                district court's intent was to compel Rodriguez's compliance with the
                support order for the benefit of his daughter, not to punish him for any
                ongoing noncompliance." Id. at 805, 102 P.3d at 46. Therefore, the court
                held that the Sixth Amendment right to counsel did not apply to the
                proceedings. Id.
                            However, the United States Supreme Court has identified an
                additional factor in determining whether a contempt order is civil or
                criminal—that is, in order for a contempt order imposing a determinate
                sentence to be civil in nature, it must contain a purge clause.     Hicks v.
                Feiock, 485 U.S. 624, 640 (1988). A purge clause gives the defendant the
                opportunity to purge himself of the contempt sentence by complying with
                the terms of the contempt order. Id.
                            Here, the district court issued a contempt order against
                Wesley for failing to (1) pay child support, and (2) take the child to her
                tutoring classes, pursuant to a previous court order. The order directed
                Wesley to serve 80 days in jail, but it stayed the jail sentence contingent
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                upon Wesley following all future court orders. Thus, like Rodriguez, it
                appears that the district court's intent was to compel Wesley's compliance
                with the support order for the benefit of his daughter, not to punish him
                for any ongoing noncompliance. However, the order failed to contain a
                purge clause that would allow Wesley to purge himself of the contempt
                sentence. Thus, if the stay was lifted due to a missed payment by Wesley,
                he would have no way to purge his sentence to avoid or get out of jail.
                While it is possible that the district court intended for Wesley to be able to
                purge himself of his sentence and get out of jail in such a situation by
                paying any missed payment, the order does not so state. Therefore, we
                hold that because the district court's contempt order did not contain a
                purge clause, it was criminal in nature and Wesley's Sixth Amendment
                right to counsel was violated when the contempt order was entered after
                proceedings in which he was not represented by counse1. 2
                The district court abused its discretion in its order modifying child custody
                            This court reviews modifications of child custody under an
                abuse of discretion standard. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d
                239, 241 (2007). "[A] modification of primary physical custody is
                warranted only when (1) there has been a substantial change in
                circumstances affecting the welfare of the child, and (2) the child's best
                interest is served by the modification."          Id. at 150, 161 P.3d at 242.
                However, when modifying joint physical custody, it is only necessary to


                      2Because we are vacating the district court's contempt order and
                remanding with instructions that Wesley be provided with counsel during
                any further criminal contempt proceedings if he is found to be indigent, we
                do not reach the other issues raised by Wesley regarding the contempt
                order.

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                 consider whether the modification is in the child's best interest. Rivero v.
                 Rivero, 125 Nev. 410, 430, 216 P.3d 213, 227 (2009). 3
                              The district court's order stated that it was modifying custody
                 because it was in the child's best interest "based on [Wesley's] conduct
                 over the past ten (10) months." The order failed to specify which conduct
                 it was referring to, although the district court did make factual findings in
                 the order that Wesley had child support arrearages and had not followed
                 the court's order to pay half of the child's medical insurance. The district
                 court also (1) found that Wesley was not credible when he testified that he
                 spent two hours a night going over the child's homework, (2) had concerns
                 about Wesley not charging the child's phone so that Maria could have
                 daily contact with the child, and (3) was concerned that Wesley was not
                 taking the child to her tutoring classes. Lastly, the order stated that the
                 district court found Wesley to be in contempt for failing to pay child
                 support and half of the tutoring costs.
                              The district court also made oral pronouncements as to the
                 best interest of the child, stating:
                                     You know, Mr. Lewis, in the space of ten
                              months, you demonstrated to The Court by your
                              own behavior in this—your own conduct, I should
                              say, that it's in the best interest of the minor child
                              that I change the custodial arrangement, from not
                              paying your support to not taking her to
                              [tutoring], to ignoring her medical needs, to not
                              making yourself available with a voicemail, to not
                              following my Court orders, even so far as making
                              sure your child's phone stay plugged in and

                       3 Appellantdoes not question the use in Nevada caselaw of differing
                 requirements for modifying joint physical and primary physical custody.
                 Therefore, we do not address that issue here.

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                                 charged so that Mom can have access to her, and
                                 to the tardies and the absentee record, especially
                                 the tardies and the absentee records. Those are
                                 significant factors The Court looks at.
                           The district court abused its discretion by improperly basing its
                           decision on Wesley's failure to pay child support, medical insurance
                           costs, and tutoring costs
                                 "This court has made it clear that a court may not use changes
                     of custody as a sword to punish parental misconduct; disobedience of court
                     orders is punishable in other ways." Sims v. Sims, 109 Nev. 1146, 1149,
                     865 P.2d 328, 330 (1993).
                                 Here, the district court appeared to base its order modifying
                     child custody, at least in part, on the fact that Wesley failed to pay child
                     support, his portion of the medical insurance for the child, and his portion
                     of the tutoring costs in violation of a previous court order. The written
                     order stated that the custody modification was in the child's best interest
                     because of Wesley's actions in the months prior to the order, which
                     included his failure to follow the court's order. In its oral pronouncement
                     as to the best interest of the child, the district court specifically spoke of
                     Wesley's failure to pay child support and his failure to follow court orders
                     as factors that it considered. Because Wesley's failure to follow court
                     orders may not be considered as a factor in determining the child's best
                     interest during a modification of custody, we hold that the district court
                     abused its discretion.
                           The district court abused its discretion by failing to consider the NRS
                           125.480(4) (2009) factors in determining the child's best interest
                                 "In determining the best interest of the child, the court shall
                     consider and set forth its specific findings concerning, among other
                     things," the factors set out in NRS 125.480(4), NRS 125.480(4) (2009)
                     (emphasis added). "Specific findings and an adequate explanation of the
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                reasons for the custody determination are crucial to enforce or modify a
                custody order and for appellate review." Davis v. Ewalefo, 131 Nev., Adv.
                Op. 45, 352 P.3d 1139, 1143 (2015) (internal quotation marks omitted).
                "Without them, this court cannot say with assurance that the custody
                determination was made for appropriate legal reasons." Id.
                            Here, other than Wesley's failure to follow the court's order,
                the district court based its determination of the best interest on the
                finding that Wesley did not attend to the child's medical needs, was not
                accessible by phone or voicemail, and failed to make the child available to
                Maria by phone when in Wesley's custody. The district court also
                considered the child's school tardiness and absentee record while in
                Wesley's custody, and Wesley's failure to participate in child therapy
                sessions set up by Maria. While these findings could correspond to some
                of MRS 125.480(4) (2009)'s factors, the district court nonetheless failed to
                adequately set forth its specific findings as to each factor, and it is unclear
                from the district court's order and oral findings when read together
                whether every NRS 125.480(4) (2009) factor was considered. Therefore,
                we hold that the district court abused its discretion by failing to set forth
                specific findings as to all of MRS 125.480(4) (2009)'s factors in its
                determination of the child's best interest during a modification of custody.
                Because the district court abused its discretion by improperly considering
                Wesley's failure to comply with court orders and failing to enter specific
                factual findings as to each of the statutory best-interest-of-the-child
                factors, we reverse the district court's order modifying child custody. 4


                      4 Because the order modifying child support was based upon the
                order modifying child custody, the order modifying child support is also
                reversed and should be addressed on remand.

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                The district court did not abuse its discretion by ordering Wesley to
                continue paying for tutoring classes
                            Wesley argues that because the minor child tested at or above
                grade level on the Clark County School District's CRTs and received As
                and Bs at school, she had completed the conditions of the district court's
                2013 order regarding additional tutoring classes. Wesley further argues
                that there was no evidence to support a finding that the minor child had
                continuing special education needs, see NRS 125B.080(9), and that
                therefore the district court abused its discretion by ordering Wesley to pay
                for additional tutoring classes.
                            The district court's 2013 order stated, in relevant part, that
                the minor child "shall continue to receive tutoring services until she is
                testing at or above grade level as tested by [the tutoring school]."
                Although she was found to be at or above grade level on the Clark County
                School District's CRTs and received As and Bs at school, she still tested
                below grade level in math as tested by the tutoring school. Therefore, we
                hold that the conditions of the district court's 2013 order were not satisfied
                and the district court did not abuse its discretion by enforcing its 2013
                order requiring Wesley to continue to pay for half of the tutoring expenses.
                                               CONCLUSION
                            If a contempt order does not contain a purge clause, it is
                criminal in nature and the Sixth Amendment right to counsel applies.
                Because the contempt order in this case did not contain a purge clause, we
                hold that Wesley's constitutional rights were violated when the contempt
                order was entered against him when he was unrepresented by counsel at
                the contempt proceedings. Therefore, we vacate the district court's
                contempt order and order that Wesley be appointed counsel if he is found
                to be indigent and not already otherwise represented.
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                                We further hold that the district court abused its discretion by
                   improperly considering Wesley's failure to comply with court orders in
                   modifying custody and by failing to specifically set forth specific findings
                   regarding all of NRS 125.480(4) (2009)'s factors. However, the district
                   court did not abuse its discretion by ordering Wesley to pay for additional
                   tutoring classes for the minor child. Therefore, we affirm in part, reverse
                   in part, and remand this case to the district court for further proceedings
                   consistent with this opinion. 5




                                                          Saitta

                   We concur:


                          Aa.-t
                   Hardesty
                                  tet,g;             J.




                          5 Wesley also raises the issue of whether judicial bias denied him a
                   right to a fair trial. Because our review of the record does not indicate
                   that a reasonable person would harbor doubts about the district court
                   judge's impartiality, we hold that Wesley was not denied his right to a fair
                   trial. In re Varain, 114 Nev. 1271, 1278, 969 P.2d 305, 310 (1998) ("The
                   standard for assessing judicial bias is whether a reasonable person,
                   knowing all the facts, would harbor reasonable doubts about [a judge's]
                   impartiality." (alteration in original) (internal quotation marks omitted)).


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