Marriage of Rogers

23CA1507 Marriage of Rogers 11-14-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1507
Mesa County District Court No. 18DR30199
Honorable Gretchen B. Larson, Judge

In re the Marriage of

Jared Con Rogers,

Appellee,

and

Mickie Lynn Rogers,

Appellant.

ORDER AFFIRMED

Division VI
Opinion by JUDGE BERNARD*
Welling and Martinez*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 14, 2024

Drew Moore, Grand Junction, Colorado, for Appellee

Smith Balicki Finn Laraway, LLC, Kathlyn A. Laraway, William D. Taylor,
Centennial, Colorado, for Appellant

* Sitting by assignment of the Chief Justice under provisions of Colo. Const.
art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 This is a dissolution of marriage involving a wife, Mickie Lynn

Rogers, and a husband, Jared Con Rogers. Wife appeals the

district court’s order adopting a magistrate’s judgment imposing

remedial contempt sanctions. We affirm.

I. Background

¶2 Wife and husband married in 2008. In 2018, husband

petitioned to dissolve the marriage. After holding two hearings, a

magistrate issued a decree of dissolution and final orders. As is

pertinent to our analysis, the magistrate found that husband and

wife owned marital property worth about $535,000. The equity in

the marital residence was part, but not all, of this figure.

¶3 The magistrate ordered

• husband and wife to divide the equity of the marital

residence, allocating sixty percent of it, or $154,302, to

husband, and forty percent of it, or $102,868, to wife; and

• wife to refinance the marital residence in her name only by

January 29, 2021, and to pay husband an equalization

payment of $154,302.

¶4 If wife could not make the equalization payment to husband

by January 29, 2021, husband and wife were to select a real estate

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agent to sell the marital residence by February 10, 2021, at the

latest. Husband and wife eventually extended that deadline to May

2021, and wife paid husband $44,600 in September 2021.

¶5 In May 2022, husband asked the magistrate to hold wife in

contempt under C.R.C.P. 107 because she had not paid him the

rest of the equalization payment. He asked the magistrate to

impose a remedial sanction.

¶6 The magistrate held a contempt hearing in January 2023,

issuing a written order containing the following findings of fact.

(1) Wife did not pay husband any of the equalization payment

before May 2021.

(2) She later refinanced the marital residence, and she paid

husband $44,600 in September 2021.

(3) She used the rest of the money she had obtained from

refinancing the residence to pay her taxes and other

expenses.

(4) She still owed husband a balance of $109,050.75 on the

equalization payment.

¶7 During the contempt hearing, wife did not claim that she was

unaware of the magistrate’s order requiring her to make the

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equalization payment to husband, and she did not dispute the

order’s validity. Instead, she asserted that she did not have the

present ability to pay all the rest of the equalization payment.

¶8 The magistrate made the following factual findings about wife’s

financial status at the time of the contempt hearing. She had

$7,039.32 in an investment account. She had purchased a horse

trailer with $50,000 from her business, and she used the trailer as

collateral for a $40,000 loan. She used part of the loan to pay

personal and business expenses, and $20,000 of the loan was still

in her bank account. She had $7,000 in her business bank

account. And she had received about $2,000 from rental

properties.

¶9 The magistrate noted that wife’s credibility was “mixed” and

that “[h]er failure to demonstrate why she could not pay [husband]

more in 2021 and 2022 suggested that she was not being candid

about her ability to pay now.” The magistrate also observed that

she had not provided him with complete bank statements.

¶ 10 Based on the evidence presented at the hearing, the

magistrate determined that wife could “make a partial payment [to

husband] with her savings and cash in her personal account”

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because she had “the present ability to pay at least $25,000 to

[husband].” She had violated the final order because she had not

made the full equalization payment to husband, and, as a result,

she was “guilty of contempt and subject to remedial sanctions.” As

part of the remedial sanctions, the magistrate ordered wife to pay

husband reasonable attorney fees and costs in association with the

contempt motion and hearing, adding that wife could purge herself

of contempt by paying at least $25,000 to husband.

¶ 11 The district court adopted the magistrate’s contempt findings

and sanction on C.R.M. 7(a) review.

II. Compliance with C.A.R.

¶ 12 In her reply brief, wife asks us to strike husband’s answer

brief because it does not comply with C.A.R. 28(a)(5), 28(b), and

28(e). While we agree that the answer brief does not fully comply

with the appellate rules, we were able to understand husband’s

contentions in the context of the record. We therefore deny wife’s

request. See Valentine v. Mountain States Mut. Cas. Co., 252 P.3d

1182, 1186 (Colo. App. 2011)(addressing the merits of the

arguments even though the parties’ briefs failed to comply with

C.A.R. 28 and 32); Barr Lake Vill. Metro. Dist. v. Colo. Water Quality

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Control Comm’n, 835 P.2d 613, 615 (Colo. App. 1992)(declining to

dismiss an appeal for failure to comply with C.A.R. 28).

III. Remedial Contempt Sanctions

¶ 13 Wife challenges the magistrate’s decision to hold her in

contempt of court. Her challenge focuses on the magistrate’s

finding that she had the financial ability to pay $25,000 at the time

of the contempt hearing instead of the full amount of the remainder

of the equalization payment, or approximately $109,000. She

submits that, before the magistrate could find her in contempt, the

magistrate would have to find that she had the ability to pay all the

remainder of the equalization payment, not just part of it. So, she

finishes up, the magistrate’s finding that she only had the partial

ability to comply with the original order could not form the basis for

a contempt finding. We disagree.

A. Standard of Review and Generally Applicable Law

¶ 14 “A district court reviewing a magistrate’s decision under

C.R.M. 7(a) may not alter the magistrate’s factual findings unless

they are clearly erroneous.” In re Marriage of Sheehan, 2022 COA

29, ¶ 22 (citing C.R.M. 7(a)(9)). “A court’s factual findings are

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clearly erroneous only if there is no support for them in the record.”

Id. (quoting Van Gundy v. Van Gundy, 2012 COA 194, ¶ 12).

¶ 15 Appellate review of a district court’s order adopting a

magistrate’s decision is a second layer of appellate review. In re

Marriage of Thorburn, 2022 COA 80, ¶ 25. Like the district court,

the appellate courts must accept a magistrate’s factual findings

unless they are clearly erroneous. Sheehan, ¶ 22. We review any

issues of law de novo. Id.

¶ 16 A court has the discretion to find a party in contempt, and we

will not reverse that decision unless the court abuses its discretion

reaching it. Id. at ¶ 23. A court abuses its discretion if its decision

is manifestly arbitrary, unreasonable, or unfair, or if it misapplies

the law. In re Marriage of Bergeson-Flanders, 2022 COA 18, ¶ 10.

¶ 17 One basis for a court’s contempt finding is when a party has

not complied with a lawful court order that the party knew about.

See Sheehan, ¶ 24 (citing In re Marriage of Cyr, 186 P.3d 88, 91

(Colo. App. 2008)); C.R.C.P. 107(a)(1)(defining “contempt” as

“disobedience or resistance by any person to or interference with

any lawful . . . order of the court”). Once those two factors have

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been established, the burden shifts to the party to show that he or

she was unable to comply with the order. Sheehan, ¶ 24.

¶ 18 There are two types of contempt sanctions: punitive and

remedial. Cyr, 186 P.3d at 91. A court uses punitive sanctions,

which are criminal in nature, to punish a party, and they require a

showing of willful disobedience on the part of the contemnor. Id. at

91-92. The magistrate in this case did not impose a punitive

sanction.

¶ 19 Rather, the magistrate imposed a remedial sanction.

“[R]emedial sanctions are civil in nature and are intended ‘to force

compliance with a lawful order or to compel performance of an act

within the person’s power or present ability to perform.’” Id. at 92

(citation omitted). The purpose of remedial sanctions is for the

benefit of another. See id. When the court orders a remedial

contempt sanction, it must specify the means by which the

contemnor can purge the contempt. See id.

¶ 20 To order a remedial sanction, the court must make “two

findings of present duty and ability to pay: one which supports the

contempt finding, and a second which justifies the imposition of a

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remedial order.” In re Marriage of Hartt, 603 P.2d 970, 972 (Colo.

App. 1979).

B. Analysis

¶ 21 On appeal, wife does not dispute that the magistrate’s

equalization payment order was lawful or that she had knowledge of

it, and she does not challenge the magistrate’s factual finding that

she had the present ability to pay husband at least $25,000. After

reviewing the record, we conclude that it supports the magistrate’s

findings concerning wife’s present ability to pay. See Sheehan, ¶ 22

(explaining that appellate courts will not overturn a lower court’s

factual findings unless they lack record support).

¶ 22 But, as we indicated above, wife contends that, before the

magistrate could hold her in contempt, the magistrate had to find

that she had the present ability to pay the entire unsatisfied part of

the equalization payment. We disagree.

¶ 23 There is no language in C.R.C.P. 107 requiring a court to find

that a party has the present ability to pay the full amount of a court

ordered payment before the court can then find a party in contempt

because it has not paid part or all of that amount. C.R.C.P.

107(a)(1) only defines “contempt” as “disobedience or resistance by

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any person to or interference with any lawful . . . order of the

court.” C.R.C.P. 107(d)(2) requires that, when remedial sanctions

are considered, a court must hold a hearing to consider evidence,

and then it may find the person in contempt and order sanctions,

describing “the means by which the person may purge the

contempt.”

¶ 24 A remedial sanction for contempt is a “sanction[] 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.”

C.R.C.P. 107(a)(5). The court must find that the party has the

present ability to comply with the court order, and therefore purge

the contempt, so that “the [party] holds in [his or her] hand[s] the

proverbial keys to the jailhouse door — once [he or she] purges the

contempt, [he or she] is free.” In re Parental Responsibilities

Concerning A.C.B., 2022 COA 3, ¶ 24.

¶ 25 In this case, the magistrate held a hearing and found that wife

had the ability to comply with its final order by paying husband at

least $25,000 towards the equalization payment; yet, she had not

done so. As a result, the magistrate found wife in contempt of its

final order, specifying that she could purge herself of contempt by

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paying husband the remedial sanction of $25,000, which the

magistrate found was within her present ability to pay. By ordering

wife to pay husband an amount within her present ability, the

magistrate gave wife “the proverbial keys to the jailhouse door,” or

the means by which she could purge herself of contempt. A.C.B., ¶

24.

¶ 26 We are not otherwise persuaded by wife’s reliance on People in

Interest of Murley, 239 P.2d 706 (Colo. 1951). Wife relies on the

following passage from that case:

The court failed also to make any finding as to
the father’s then ability to make payment of
the amount in arrears which he was ordered to
pay instanter, while the evidence discloses
without contradiction that he was then unable
to make immediate payment of the full
amount. Accordingly, the court’s order is
without findings or supporting evidence
necessary for an order to enforce performance
of an act in the power of the respondent to
perform, as well as without findings necessary
for an order to vindicate the dignity of the
court.

Id. at 709. Wife asserts that this passage stands for the proposition

that “the Colorado Supreme Court held the alleged contemnor must

be found to have the ability to make ‘immediate payment of the full

amount.’”

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¶ 27 There are four problems with wife’s assertion.

¶ 28 First, there is no indication in this passage that the supreme

court was holding that, in a remedial contempt situation, (1) a party

cannot be held in contempt unless he or she has the present ability

to pay the entire amount of an unpaid obligation; and (2) a trial

court cannot issue a remedial sanction requiring the party to pay

less than the entire amount of the obligation. There is no citation

to authority in the supreme court’s opinion in support of such

propositions, such as a statute, a court rule, a case from Colorado

or any other jurisdiction, a law review article, or a legal treatise.

¶ 29 Second, neither the supreme court nor this court has, in any

other case, taken the position that wife claims is represented by the

passage from Murley. Contrary to wife’s implication, the question of

whether a court could impose a remedial sanction of less than the

entire amount owed was not addressed in cases such as In re

Marriage of Cyr.

¶ 30 Third, when read in the context of the entire Murley opinion, it

appears that the supreme court was not making a sweeping

pronouncement about the requirements of remedial contempt

findings. Instead, it was merely making a comment concerning the

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facts of the case: the trial court had not made any findings about

the father’s ability to pay the arrears even though the record

showed that he was unable to pay the full amount of the arrears.

239 P.2d at 709. The supreme court did not address what might

have happened had the trial court found that the father had been

presently able to pay some of the arrears.

¶ 31 Fourth, even assuming, for the purposes of argument, that

this passage referred to the sort of rule that wife attaches to it, the

passage is dicta. See Hardesty v. Pino, 222 P.3d 336, 340 (Colo.

App. 2009)(explaining that only the holding and its necessary

rationale are the law of the case and not dicta). In Murley, the

supreme court’s holding reversing the trial court was based on its

conclusion that the trial court lacked jurisdiction over the

proceedings; it was not based on any insufficiency of the trial

court’s contempt order. 239 P.2d at 710. The passage in question

was merely an aside.

¶ 32 We therefore conclude that there is no authority in Colorado

that requires a court to find that a party has the present ability to

pay the full amount owed before determining, in its discretion, that

a party is in contempt. It is sufficient if the court finds that the

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party has the ability to comply partially with the lawful order, as

long as the court imposes a remedial payment sanction that is

within the party’s present ability to pay. See In re Estate of Elliott,

993 P.2d 474, 479 (Colo. 2000)(“[W]hen remedial sanctions are

imposed, the [trial] court must make findings of fact regarding . . .

the present duty and ability to perform the acts required to purge

oneself of contempt.”); Sheehan, ¶ 24; C.R.C.P. 107(a)(1), (5), (d)(2).

¶ 33 In this case, the magistrate found that wife had the present

ability to comply with the final order by making a partial payment

to husband, and, since she had not done so, the magistrate found

her in contempt. The magistrate then ruled that wife could purge

herself of her contempt by paying husband at least $25,000, an

amount that was within wife’s present ability to pay. The

magistrate’s findings therefore satisfy the required findings

necessary to order a remedial contempt sanction. See Hartt, 603

P.2d at 972.

¶ 34 We therefore conclude that the magistrate did not abuse his

discretion because his contempt order was not manifestly arbitrary,

unreasonable, or unfair, and because it did not misapply the law.

See In re Marriage of Bergeson-Flanders, ¶ 10. Because the

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magistrate did not abuse his discretion, the district court did not

err when it adopted the magistrate’s findings and order.

¶ 35 The district court’s order is affirmed.

JUDGE WELLING and JUSTICE MARTINEZ concur.

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