WESLEY ALLEN LEWIS, 

Appellant, 

vs. 

MARIA DANIELA LEWIS, ATK/A 

MARIA DANIELA PERDOMO, 

Respondent. 

No. 66497 

FILED 

JUN 3 0 2016 

RIC IE IC LINDEMAN 

unnsupRznsE CO 

4/11 BY CLERK 

132 Nev., Advance Opinion 419 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

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 

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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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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 

3Appellant does 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 

4Because 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.-ttet,g; 

Hardesty 

J. 

5Wesley 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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