1 IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 49772

DEBRA ABELL,

Plaintiff

- Respondent,

v. STEVEN ABELL,

Defendant

- Appe llant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) Boise, May 2023 Term
Opinion File d: August 2 2, 2023
Melanie Gagnepa in, Clerk

Appeal from the District Court of the First Judicia l District of the State of Idaho, Kootenai County

. John T. Mitchell , District Jud ge. The judgment of the district court is vacated , its decisions underlying its judgment

ar e al so vacated , and the case is remanded for further proceedings

. Lukins & Annis, P.S., Coeur d’Alene
, Idaho, for Appellant

. Edward W. Kok submitted argument on the briefs.
Witherspoon Brajcich McPhee
, PLLC, Coeur d’ Alene
, Idaho, for Respondent. Mark A

. Ellingsen submitted argument on the briefs.

_____________________ BRODY, Just ice. This appeal con cerns a non

- summ ary contempt proceeding arisin g out of a di vorce, and former litigation in Oregon over spousal sup port Steven Abell owed his ex

- wife De br a Abell.
After a judgment of contempt was entered against him in Oregon for failu re to pay support , Ste ven allegedly co ntinued to refuse to pay Debra. Roughly on e year later, Debra brough t the underlying contempt proc eeding, charging Steven with contempt f or failure to comply with the payment terms in the Oregon contempt judgment, and requesting relief from the district co urt in northern Idaho, where Steven resided

. The district court found Steven in willful contempt o f the Oregon contempt judgment, and i mp osed an unconditional sanction of $5,000, making both
determinations through a su mmary judgment procedu re. Steven appea ls, assigning error to the2 sanction imposed
, and to other decisions by the court in the underlying proceeding.
For the reasons set for th below, the sanction imposed by the district court was criminal in nature, and it was imposed in error because Steven w as not afforded certain protections owed a n

a lleged contemnor in a criminal contempt proceeding. I n addition, regardless of whether a c iv il or criminal sanction is sought or imposed, when an alleged contemnor is not in default and
denies th e charge of cont empt , the non

- summary contempt proceeding c an not be adjudicated through a summary judgment procedu re . Idaho Rule of Civil Procedure 75 re quires a trial. Accordingly
, the district court’s judgment of contempt is vacated , its decisions underl ying its judgmen t are also vacat ed, and the case is remande d for further proceedings that must start anew,
at the initial pleading stage, in order to p ro ceed appropriately.
I. FACTUAL AND PROCEDURAL BACKGROUND
Debra Abell and Steven Abel l were married for rou ghly thirty

- one years in Oregon
before th ey stipulated to a dissolution of their marriage
, entered on June 9 , 2015 (“Dissolution Judgment”)

. At the tim e of their divorce, Debra was 54 with an earning capacity of minimum

wage, and Stev en was 60 with an acti ve inco me of $16 ,666 per month

. As a part of their divorce, Steven agreed to , among other things
, pay Debra $3,500 per month in spousal support . Steven

w as to pay Debra spousal support “until further order of the court, o r d eath of a party [,] ” with 9 %
inte rest accruing fr om the due date until paid if delinquent

. T wo years later, in December 2017, Steven married Pamela

. Another two years after that
, Steve n and Pamela moved to Idaho, and purchased a new residence in Post Falls, Idaho, in
March 2019. Steven pu rportedly quitcl aimed any interest in the new residence to Pamela t he day of the purchase

. Roughly one month after moving to Idaho, in April 2019, Stev en stopped paying Debra spousal support and filed a motion with the O reg on circuit court to terminate his spousal support obligation

. During the ensuing proceedings , and even after an order to compel discovery issued by the Oregon circuit court, Steven ope nl y refused to produce documents requested durin g d iscovery regarding his assets an d those of his second wife, Pamela. Af ter a hearin g, the Oregon
circuit court fou nd that Steven had “willfully” violated the order to co mpel and left the court
with “no alte rn ative but to order extreme measu res ” based on his “conduct and because of the

ext reme prejudice to [Deb ra] in litigatin g” against Steven’s motion to terminate spo usal support

. From this , the Oregon circuit court dismi ssed Steven’s motion with prejudice a nd entered a3 judgment against Steven in favor of Debra for her attorney ’ s fees and costs in the amount of $16,091.50
, plu s interest of 9% per year

. Two months later
, in November 2020, the Oregon circuit court held a hea ring on a n outstanding motion from De br a to hold Steven in contempt related to his failure to pay spousal support to Deb ra over roughly the la st year and a ha lf

. Steven knew of the hearing, but

“ volunt arily ” chose not to appear. Two months afte r the hearin g, in January 2021, the Oregon
circui t court issued its written decision (“Oregon Contempt Judgment”) and found Steven i n contempt for failure to pay owed spo usal support from April 23 , 2019 , through t o the date of the contempt hearing (Novembe r 12, 2020) , totaling $71,200.84

. The Oregon cir cu it court also found that Steven had the present “ability to pay his spousal suppo rt obligation” to Debr a based on the f ollowing findings : Steven “voluntarily quit his job in Februa ry 20 19 making almost $200,000 per ye ar without justification or reason”;
St even’s “claim that he had depression and anxiety that prevented him from continui ng his job
from which he voluntarily r esigned is not supported by the evidence”; Steven had a joi nt ban k
account with his second wife, P amela, with deposits “that averaged o ve r $22,000 per month from January 2018 through June 2019”; Steven’s second wife, P amela, was earning ove r $130,000 per

y ear ; Pamela had purchased a house in Post F alls, Idaho
, for her a nd Steven ; and Steven had a “401( k) plan with $47,000 in it as of Dece mb er 31, 2019 , ” which he could have “withdrawn without penalty to pay” his spousal s upport owed to Debra.
T he Oregon cir c uit court ord ered S teven to, among other th ings, pay the outstanding $71,200.84 owed within 60 day s . The circuit court also entered a c i vil sanction against Steven
for $1,000 that would be conditionally imposed every 3 0 days Steven failed to pay the

o utst a nding a mount after those 60 days
, plus inte rest of 9% per year

. A few months later, t he
circuit co urt entered a supplemental judgment, a warding Debra $6,690 for incurred attorney’s
fees and costs , plus interest of 9 % p er year (“Oregon Supp lemental Judgmen t ”)

. While this litigation was ongoing in O rego n , on August 3, 2020, Debra filed an Affidavit
and Notice of Filing Foreign Judgment to d omesticate

— in Idaho

— the Oregon judgment
dis solving the marriage (the Dissolution J udgment )

. Her filing attached the Dis s olution Judgment, which provided for the un derlying divorce and award of spousal support to Debra. Roughl y one and a half years later ( o ne year after the Oregon Contempt Judgm ent was entered ) ,

on January 4, 2022, Debra filed an Affidavit a nd Notice of Fil i ng Foreign Judgments to4 domesticate three o ther Oregon judgments in Idaho

. The Oregon judgments in that filing related

to Debra ’ s atto r n ey’s fees and costs a warded in the Oregon litigati on, with one of the judgments

aw arding Debra fees and costs in the am o unt of $16,091.50
, as referenced above.
Tw o days later, on January 6, 2022, Debra filed another A ffidavit and Notice of Filing Foreig n J udgments, this time including the Oregon Contempt Judgment and the Oregon Supplem ental Judgment to be domesticated in I daho

. Three months later, on March 2, 2022, Debra commenced the underlying contem pt proceeding by fi ling a “Motion/Charge for Non

Summ a r y Contempt” against Steven, and the above filings were later consolidated into one case , the underlying action now on a p peal

. Debra’s motion inc luded one charge o f contempt : Steven was “violating the terms and
conditi ons of [the Oregon Contempt Judgment ] by refusing to comply with the court ordered payment terms related to spousal supp ort.” According to De bra’s declaratio n , f iled concurrently
with her m otion and ch arge of contempt, Steven had failed in the last year to make any payments
towards the princ i p al sum of $71,200.84 in spousal support due under the Oregon Contempt Judgment

. Al though she did n ot br ing a separate c h arge o f contempt for failure to pay other

s upport under the Dissolution Judgment, Debra further al leged that Steven owed her an
additi o n al $54,250 in spousal support from the date of the Oregon Contempt Judgment throug h February 28 , 2022 , i.e., t wo day s b efore she filed her moti on

. Notably, Debr a ’ s motion did not charge Steven with contempt for fail ure to pay the $16,091.50 judgment fo r at torney’s fees and costs that she was awarded in the Oregon litigation, or the $ 6,690 supplemental judgm ent in fe es a n d costs she was awarded related to the Oreg on Contempt Judgment

. It is unclear from the record whe ther Steven ever paid these domestica te d Oregon judgments. Otherwise, related to the one charge of contempt Debra did br i ng , Debra’s motion requ ested that th e I daho district court impose “civil sanctio ns ” against Steven as provided by Idaho Rule of Civil P rocedure 75 and Title 7, Chapter 6 of t he Idaho Code, as well as an award for any attorney’s fees and costs incu rred in prosecuting her charge o f contempt.
Al though d irect evidence of it is not in th e record, on March 11, 2022, seven days after
Debra fil ed her contempt motion and charge, St ev en apparently made a partial payment to Debra.
The amount of this payment is uncl ear. At one point i n her briefing, De b ra states the partial payment was $49,350.9 2, but in her later declaration in support of contempt sanctions against Steven, she represe nt s the partial payment was $ 10,254 .00

. Nevertheless, r oughly t wo weeks5 after this partial payment
, on Marc h 28, 2022, t h e district court in Idaho held an “arraignm ent” hearing at which Steven made his initial appearanc e pro se and indicated that he was
“c on te sting” the new charge of contempt

. At the hearing
, the district court only advi sed Steven
of the risks of representi n g him self pro se , i.e., that Steven would b e assumed to have working knowledge of the Idaho Rules of Civil Procedure
, applicab le statut es , and applicable case law

. The district court did not advi se h im of any other rig hts . Otherwise , t he dist r ict court , a s w ell as Debra in her later briefing , treat ed Steven’s “contesting” of the charge as a general den ial and the
matter was set for trial on M a y 9, 2022 , roughly one and a half months later

. The district court did not spe cify if it was setting a bench trial o r jury tria l

. F ourteen days after the “ arr a ignment ” hearing, on April 11, 2022, Debra filed a “Mo tion for Judgment on the Pleadings” und er Idaho Rule of Civil Procedure 12(c), and argued that based

o n the evidence in th e record along with St ev en’s failur e t o timely assert an y affirmative
defense s t o the contempt charge under Rule 75(h), she was entitl ed to judgment as a matter of
law becau se it was undisputed that Steven was “again in contempt” for fa iling to comply with the payment terms of th e Oregon Co n te mpt Judgment. Four days later, on April 1 5 , 2022, counsel appeared for Steven, and filed a docu ment denying the charge of contempt and a sserting two a ffirmative defenses under Rule 75(h): Steven
was “ [1] unable to com ply with the [Oregon C ontempt Judgm e nt ] at the time of the violation
and/or [2] l acks the present ability to comply with the [Oregon C ontempt Judgment].” Seven days later, o n April 22, 202 2, Steven responded to Debra’s “Motion for Judgment on the Pleadings ” through his counsel and argued th a t based on his general denial to the contem p t charge, Debra’s motion must be denied b ecause there is a genuine dispute of fact on contemp t for trial

. Four days after that
, Steven ’ s counsel formally requested leave from t he district court
unde r Rule 75(h)( 1 ) to assert Steven’s two affirmative defens e s

. Two days later, at a hearing on April 28, 2022, re lyi ng only on Debra’s declaration and

t he Oregon Contempt Judgment already in the record, the district court granted Debra ’s “Motion for Judgmen t on the Plea d in gs” and denied Steven’s motion for lea ve t o assert two affirmative
defenses. Steven was not perm itted to present testimony or evidence at this hearing. The district

court then ordered Debra’s counsel to prepare the wri tten order, which late r refl ected t h at the
district court had found Stev en in c o n tempt because he had “willfully refused to comply wit h the spousal support payment terms ord er ed in the Oregon Contempt Judgment[.]”6 F our days after the hearing , on May 2, 202 2, Steven executed a “ Postnuptial A g re ement”
with his second wife, Pamela , and h i s counsel notarized the document

. Curiously , t he Post nuptial Agreemen t indicates it was “mad e” on April 15, 2022

— t wo weeks earlier, the same day Steven ’ s counsel appeared , and before Steven was fou nd in contemp t a t the hearing on April 28, 2022.
The Post n u ptial Agreement purports to m emorialize a former sepa ration of Steven’s de bts and
assets fro m Pamela’s debts and assets, and also purports to transfer all of Steven’s communit y property interests i n real proper t y, wages, income, earnings, and retirement b e nefits
, acquired during his second m arriage with Pame la, to Pamela as her sole an d separate pr operty

. Three days later, on May 5, 20 22, Debra and her counsel filed declaratio ns in support of a

mem orandum reque s ti ng the “civil” sanction of incarceration c o nditioned on Steven purging himself of his contempt, i.e., condition ed on Steven complying w ith the payment terms underlying the Oregon Contempt Judgment. According to Debra, Steven owed $139,892.5 8 in
total un p ai d spousal support with accrued interest
, d a ting from March 2019 to Apr il 2022, i.e.,
both includ ing and a dding to t he balance owed unde r the Oregon Contempt Judgment. Because the single contempt charge related only to Steven’s failure to pa y the princip a l sum of $71,200.84 in spousal support , alo n g wi th accrued interest and the $1,000 fines
, the reco rd on appeal i s unclear on the true bal an ce Steven owed to Debra

. Nevertheless, four days later, on May 9, 2022, the dist rict court held a hea r ing to determ i ne what sanction to impose, and to consider a motion from Steven asking the court to
reconsider it s grant of Debra’s Motion for Judgment on the Pleadings

. Steven was not pe rmitted to present evidence or testimony at t his hearing. Instead, the district cou r t received oral argument and briefing , deni e d Steven’s motion for reconsideration , and essentially reiterated its finding
that Steven was i n contempt

. As for the sanction against Steven, t he district court declined to
im pose conditional incar ceration, rea s on ing that such a sanction was “criminal” i n nature and could not be imposed based on th e process afforded Steven in the underlying p roce ed ing

. Instead, the district court imposed an unconditional fine of $5,000, labele d it a “civil”
sanctio n, and awarde d D ebra reasonable attorney ’s fees and costs

. The district cour t again ordered Debra to prepare a w ritten order, which in two separate wri tt en orders, reflected the
denial of Steven’s motion for reconsideration
, the denia l of leave fo r Steven to assert aff i rm ative
defenses under Rule 75(h)(1), the f i n ding of “willful” contempt, the unconditional sanctio n, and
the award of attorney’s fees and c osts to Debra

. Steven timely appealed on multiple grounds.7 II. STANDARD OF REVIEW
“Th e s anction or penalty imposed under a contempt order is reviewed under an abuse o f
discretion standard.” In re Weick
, 142 Idaho 275, 2 78, 127 P.3d 178, 181 (2005). However,
wh ether the sanction imposed was civil or criminal in nature is reviewed de novo, a nd relatedly,
whether the underlyin g p roceedings conformed to the applicable fe d e ral constitutional protections attendant to the natur e of the sanction imposed is also revie we d de novo. See Camp v. E. Fork Ditch Co

. , 137 Idaho 850, 860

– 6 6 , 55 P.3d 304, 314

– 20 (2002 )

. As for the proper
proce d ur e governing non

- summary contempt proceedi n g s under Idaho Rule of Civil Procedure
75 , “ [t] his Cou rt exercises free review over questions r egarding the interpretation of the Idaho
Rul es of Civil Procedure .” Ward v. State , 166 Ida ho 330, 332, 458 P.3d 199, 20 1 (2020) (quoting Haight v. Idaho Dep ’ t o f Transp. , 163 Idaho 383, 387, 414 P.3d 205, 209 (2018) ).
III. ANALYSIS Steven assigns four points of error to the non

- summary contempt proceedin g below and
the jud gment of contempt entered . First, Steven argues that t he district court erred by granting “judgme n t on the pleadings” to Debra that Steven was willfully in contempt for failing to comply
with t he Oregon Contempt Judgment , and by declining to hold a tria l , when Steven genera lly
denied the charge of contempt t o c reate a disputed issue of material fact

. S e cond, Steven
maintains the district court abused its discretion when it denied his motion fo r leave to assert untimely affirmative defe nses to the charge of contempt outside t he sev en

- day window pr ovided by Ida h o Rule of Civil Procedure 75(h). Third, Ste v e n argues the district court erred in finding
Steven’s motion for reconsideration on Debra’s mo tion for judgment o n the pleadings untimely, and by further denying it on the mer its. Finally
, Steven c ontends the d i st rict court erred when it imposed an uncon d i tional monetary sanction, which was a criminal sancti on

— not a civil
sanction

— in the absence of th e process required for imposing criminal sanctions u nder Rule 75

. Steven is c orrect as to his fourt h assignment o f error . T he district court erred in imposi n g an unconditional monetary sanction, i.e., a criminal sanction, without affor ding Steven the

u nderlying process required by Rule 75 a nd the federal constitution

. D ue to the ex ceptional
nature of co ntempt procee d in gs, the error of imposing a criminal sanc t i on through what was effectively a summary judgment ad judication una vailable under Rule 75 in fe cted the entire underlying proceeding

. Thus, t he district court’s judgment of con tempt is vacated
, its de cisions
und e rl ying its judgment are vacated
, and the co n t empt charge agai nst Steven must begin anew on8 remand, from the initial pleading stage. Becau se we reach th is conclusion as to Steven ’ s fourth assignment of error , we need not address his remaining alleged error s

.

A. The district court erred in imposing an u n c onditional monetary sanction, which was criminal in n ature, because the underlying process w as fundamentally deficient. “[A] contempt proceeding is s ui generis
, ” i.e., of its own class. State v. P almlund
, 95
I d ah o 150, 153, 504 P.2d 1199, 1202 (1972)

. I t is “an extraordinary proceeding and should be

approac hed with caution.” In re Weick , 142 Ida ho at 281, 127 P.3d at 184

. Unlike other proceedings that are wholly civil or crimi n a l in nature, Gompers v. Buck’s St o ve & Range Co. , 221 U.S. 418, 441 (1911), t h e ultimate civil or criminal nature of a non

- summary c ontempt proceeding, which results in a fi nding and judgment of contempt , “ is based upon the penalty imposed at the conclus i on of the proceedings .” Camp , 137 I da ho at 864, 55 P.3d at 318 (emphasis added )

. In other words, a contempt proceeding is inherently rear

- facing or reflective,
and “ [w] het h er contempt is criminal or civil does not depend upon the nature of the lawsuit in which the contempt pro ceedings are b ro ught.” See id. at 862, 55 P.3d at 316

. B e c ause of this, t he
nature of the sanction ultimately im posed

— civil or criminal

— is critical ; t h e sanction imposed reflectively determ ines what federal constitutional rights were applicable and require d during the

e ar lier and underlying proceedings. Id. at 8 6 0

– 61 , 55 P.3d at 314

– 15 (listing the federal
constitut ional rights that apply to criminal co n te mpt proceedings).
Whether the imposed cont empt sanction
, as well as the underlyi ng contempt proceeding
,

are criminal or civil in nature turns on whether the sa n c tion is unconditional or conditional. Id

. at 863

– 65 , 5 5 P.3d at 317

– 19. “[A]n un conditional p en alty is a criminal contempt sanction, and a conditional penalty is a civil conte mpt sanction.” Id

. at 8 63, 55 P.3d a t 3 17 ( emphasis added) (citation omitted ) ( f o otnoted omitted)

. A sanction is criminal and “ uncondit ional if th e contemnor cannot avoid an y s anction by complying with the court order violated.” Id. Idaho
C ode section 7

- 61 0 provides for “crimina l contempt” s a nc tions in the form of a “fine of up to $5
, 0 00 and/or by incarceration in jail for up to five days , unless th e contempt is nonpayment of
ch ild support in which case the jail sentence can be up to thirty day s.” Camp , 137 Idaho at 86 5 , 55 P.3d at 31 9

. In co n tr ast, a sanction is civil and “conditiona l if the contemnor can avoid any sanction, including pro bation, by doing the act he had been p r ev iously ordered to do.” Id

. at 864, 55 P.3d

at 318. Civil contempt s anctions can include incarceration c onditioned on pu rging the contempt
,9 I.C. § 7

- 611; a dail y fine conditioned on the same
, Camp , 137 Idaho at 864, 55 P.3d at 318 , or both

. I ncarceration is civil in nature only “ [i] f the contempt consisted of the failure t o perform an
act that is still withi n the contemn o r’ s power to perform [.]” Id

. at 865 , 55 P. 3 d at 319 (emphasis added); see I.C. § 7

- 611 (allowing c onditional imprisonment if the “contem p t consists in the omission to perform an act which is yet in the powe r of the pers on to perform”)

. In oth er words,
for a sanction to be “ civil ” the re must be a f a c tual basis for finding t hat the contemnor “carr [ies]

t he key of his prison in his own pocket [ ,] ” Maggio v. Zeitz , 333 U.S . 56, 68 (1948) (alteration added) (citation omitted), or has “it in his powe r to avoid an y p enalty” imposed
, Hicks ex rel.
Feiock v. F eioc k , 485 U.S. 624, 633 ( 1988)

. Thus, for a contempt sanction and the underlying contempt p r oc eeding t o be “civil
, ” the trial court must make a fin ding, supported by substant ial evidence, that the contemnor has a “ present ability to comply with th e orde r violated

. ” Cam p , 137 Idaho at 865, 55 P.3d at 319 (emp hasis added). In this case, after find i ng that Steven “willfully refused to comply” with the O regon Contempt Judgment, th e district court ’s writ ten decision i mp osed a n unconditional “fine of $5,000” a n d ordered Steve n to pay “said fine within ten (10) days ” of the entry of judgment. The
distri c t court’s ruling from t he bench at the May 9, 2022 , hearing was no different
, wher e the
district court sp ecified that t he fine was “not condition al; it ’ s imposed [

. ]” Although the district

court inaccurate ly labeled th e fine as a “civil sanction related to [S teven’ s] non

- summary contempt of court
, ” the labels “affixed ei ther to the proce eding or to the relief” do not contr o l or

“ defeat the applicable protections of f ederal constitutional law” in a non

- summ ary contempt
p roceeding

. Camp , 137 Idaho at 863, 55 P .3 d at 317 (quoting Hicks
, 485 U.S. at 631). Here, with the sanction imposed , ther e was nothing Steven co uld do to avo i d paying the $5,000 fine

. Accordingly, the s a nction imposed by the district court was unconditiona l and thereby criminal
in nature. See I nt ’ l Union, United Mine Workers of Am. v. Bagwell
, 512 U.S. 821, 829 (1994) (“[A] flat, unconditional fin e, totaling e v en as little as $50 announced after a find i n g of contempt is criminal if the contemnor has no subs equent opportunity to reduce or avoid t he fine through complian ce.” (quotation mark s omitted)).
B ecause a criminal contem pt sanction was imposed
, the underly i ng proceedings were required to afford Ste v e n the numerous protections guaranteed under the federa l constitution that

are applicable in n on

- summary criminal contempt proceedings

. Ca mp , 137 Idaho at 860, 55 P.3d
at 314. For example, unless the record other w is e reveals that Steven was “quite aware t h a t a10 criminal contempt was charged[,]” United States v. United Mine Workers of Am

. , 330 U.S. 2 58 , 297 (1947), Steven had the right to notice at his arraignment hearing that a c riminal sanction was
be ing sought, G o mp ers , 221 U.S. at 445

– 46 ; see I.R.C.P. 75 ( f )(1)(A). Steven also h ad the right

to a public trial, to cross

- examine witnesses, and “to ca l l witnesses to testify both in comple te exculpation or in extenuation of the offen se and in mitigation of the penalty t o be imposed

. ” Camp , 137 Idaho at 860

– 61, 5 5 P.3d at 314

– 15 (citin g cases); see I.R.C.P. 75(i)(2) (listing the trial rights that must be af forded to impose a criminal sanctio n in a contempt proceeding ); I.R.C.P. 75( l )(2 ) ( explaining the right to call witn e ss es in mitigation , to be heard in mitigat i o n , and to other wise make amends with the court before a criminal sa nction is imposed).
Nota b ly
, Steven also would have had the right to a jury trial if the “ maximum penalty

aut horized by law, or ac tually impose d, exceeds six months [of] incarceration ” or i f the trial court imposed “ consecutive sentences totali ng mo re than six months in length [.] ” C amp , 137
I daho at 860, 55 P.3d at 314 ; see also I.R.C.P. 75(i) (1) ( “ The trial will be before the court without a jur y , provided that if t he respondent is charged w ith multiple counts tried in one proceeding , the court cannot impose consecutive criminal s a n ctions total ing more than 6 months in ja il unless the respondent was given, or vol untarily waived , the right to a j u ry trial

. ” ). Here, t here is nothing in the re c o rd showing that Steven was advised by the district cou rt,

or was even aware , that criminal c o nte mpt was charged . To the contrary, Debra initiated the underlying proceedings wi th a motion and charg e of contempt th at requested “civil ” sanctions

. Consistent w ith this, throughout the proceedings, Debra requested the “civil” sanction of
conditional i n c arceration based on Steven’s alleged present ability to comply with the payment

te rms of the Oregon Con tempt Judgmen t. Steven was also not afforded the right to a public trial,

to cross

- examine witnesses, o r to put on evidence or call witnesses in mitiga t i on of his alleged contempt to make amends with the court before the sanction was s elected and impos ed. Instead,
he w as found in “willful” contempt through a summ a r y judgment procedure
, based solely on
evide nce in the record, and denied any opportunity to p ut on evidence or challenge evidence offered by Debra in a trial

- like evidentiary hearing

. Thus, the un conditional c rim inal contempt
sanction im posed by the dist r i ct court was plainly entered in error.
D ue to the uniq ue and reflective nature of non

- summa r y contempt proceedings, we cannot simply remand t h is matter back to the district co urt to enter an appro priate sancti on

. Not only was there no affirmative finding b y the district court of Steven’s “present” ability to comply11 with the Oregon Contempt Judgm e n t as would be required to impose a “civil” sanction, but the
record is also devoid of any showing that the rights at ten dant to a criminal proceeding were ever

pro vi ded to Steven . Add itionally , as explained further bel ow , t he summary judgment procedure

us ed by the district court to adjudicate Steven ’s alleged contempt was also in error.

B. Ida ho Rule of Ci vil Procedure 75 req uires non - summary c ontempt p roceedings to b e adj udicated through a trial , unless the alleged conte mnor is in default

. C onsistent wi th I da ho Rule of Civil Procedure 75(c), Debra commenced the underlying contempt proceeding b y filing a “Motio n/Charge for Non

- Summary Contempt Agains t Defendant Steven Ab ell
, ” along with supporting factual allegations outsid e the pleading

. Debra’s
motion conta in ed o ne charge of contempt: Steven’s alleged willful failure to comply with the payment terms in the Ore gon Contempt Ju d g ment. In the Oregon Contempt Judgment, ente re d

r oughly on e year and two months earl ier, Steven was found in contempt for failure to pa y
outs tanding spousal support to Debra
, and found to have the present ability (at that ti me) to

pu rge him self of his c ont e mpt. T he Oregon circuit court gave Steven 6 0 day s to purge his contempt , and ordered, among other things, a conditional “civil” penalt y of $ 1 , 000 to be imposed

every 30 days if he did not purg e his contempt within 60 days. Roughly one mon th after Debr a f i led he r Idaho mot ion for contempt , the dist ri ct court held a n “ arr aignment ” hearing

. Steven appear ed pro se , and responded to the cour t’ s ques tions
, indicating that he was “contesting” the new charge of contempt

. The district court as well as Debra in her later briefing , treated Steven as entering a g ener al denial to the charge
, and the

matter was set for trial roughly one and a half mon th s out. Fourteen days after the arraignment hearing, after Steven had made no filings, Deb ra filed a “Mo tion for Judg men t on the Pleadings”
under Idaho Rule of Civi l P roce d ure 12(c) and argued that based on the evidence in the record, it

was undisputed th at Steve n was “again in contempt” for failing to comply with the payment

terms of the Orego n Contempt Jud gment. Debra ar g ued
, in addition to her collateral e stoppel ar gume nt , that Steven had waived any affirmative defen ses to the new contempt charge by fa il ing to “file and serve a written response within 7 days after entering a plea denying the contempt char ged” as requi red by Idaho Rule of Civil Procedure 75( h)(1). Deb ra e ssentially contended that the finding of Steven’ s then

- present ability to comply fou nd in th e Oregon Contempt Judgment collat erally estopp ed Steven from now employing the affi rmative defens e to a crimin al s anction t hat Steven was “unable to comply12 w ith the court order at the time of the alleged violatio n,” I.R.C.P. 75(h)(1)(A). Debra furt he r
cont ende d that this affirmative defense , as well as the affirmative de fense to a civil sanction that
Steven may ha ve l acked “the present ability to comply with” the Ore gon Contempt Judgment, I.R.C.P. 75(h)(1)(B), wer e both precluded by waiver. From thi s, Debra claimed she was entitled to judgment as a matter of law that Steven was in contemp t, and that a “ civil ” sanct ion of
conditional incarceration be imposed unt il he c omplie d with the Oregon Contempt Judgment

. To b e c lear, a lthough the parties and th e distri ct court below spoke in terms of Debra moving for “ judgment on the pleadings” under Rule 12(c), h er motion her e i s properly
understood as a motion for summar y j udgm ent under Rule 56 . “If, on a motion under Rule
1 2(b )(6) or 12(c), matters outside th e pleadi ngs are presented to and not excluded by the cour t, the motion must be treated as o ne for summary judgment und er R ule 56.” I.R.C.P. 12(d); Syringa Networks, LLC v. Idaho Dep ’ t of Admin. , 159 Idaho 813, 82 3 , 367 P .3d 208, 21 8 (2016). Indeed,
Rule 75 (c ) requ ired Debra to charge contempt by relying on matters outside her pleading and the
ch arge itself
, w hich she did by i ncorporating her declaration, the Dissoluti on Judg ment, the Oregon Contempt Judgment, the Oregon S upplemental Judgment, and the other do mestic ated Oregon judgments which were cons olidated into the underlying proceeding

. Thus, Debra’s
motio n here is pro per l y understood as a motion for summary judgme nt

. Fou r days after Debra moved for summary judgment
, c ounsel appeared for Steven. That

sam e day, S teven ’ s counsel entered a formal denial for Steven on the charge . Steven ’ s counsel
also noted tha t Steven inte nde d to assert the two affirmative defenses und er Rule 75(h)(1) (A) and (B) that Debra had argued were barred by collateral estoppel or oth er wise w aived

. Seven days later, Steven ’ s counsel responded to Debra’s motion for su mmary j udgment, and a rgued that
St eve n ’s general denial of contempt at the arraig nme nt h earing summarily defeated her motion

as his deni al present ed a genuine dispute of ma t e rial f act that must be resolved through a trial.
Four da ys later, Steven ’ s coun sel formal ly requested l eave of the d ist r ict court under Rule 75(h) (1) to assert Ste ven ’s t wo untimely affirmative defenses to criminal and civil sanctions. Two days later, a t a hear ing on April 28, 2022, and apparently relying only on the
evidence already offered by Debra in th e consolidate d r e cord, the district court granted Debra’s

mo tio n fo r summary judgment and at the same time denied S teven’s motion for leave to assert

t he two a ffirmative defenses to criminal an d civil sanctions under Rule 75(h)(1)(A) and (B)

. The
district court ordered De b ra’s counsel to prepare a written order , wh ich ult imately ref lected that13 the district court had fo und Steven in contempt becau se he ha d “willf ully refused to comply with the spousal support payment terms ordered in the Oregon Contempt Judg ment[.]”
O n M ay 2 , 2022, f our days after the hearing at whic h D ebra had been granted summary judgment on he r new ch arge of contempt against Steven, cou ns el for Steven notarized

— and
Steven executed

— a “Postnuptial Agreement” between Steven and his second wif e, Pamela

. T h e P o stnuptial Agreement appears to have been “m a de ” ro ughly two weeks earlier

— on April 15

— the same dat e Steven ’ s counsel ap peared . Y et , th e Postnu ptial Agreement was apparently held on

to and not e xecuted until four days after the grant of Deb ra’s summary jud g ment motion

. The Postnuptial Agreement purp or ts to transfer all of Steven’s community property
int erests in real property, wages, inco me , earni ngs, and retirement benefits acquired during the marriage to Pamel a, as her sole an d separate pr operty, in an al l eged attempt to avoid Debra’s ability to co ll ect on the Oregon Contempt Judgment, or any further j udgment

. Two assets purported to be p art of Pamela’s “sole and separa te” property were a retirement account and an Idaho reside nce purchased in March 201 9, o ne month before Steven stopped paying Debra s pousal support , with a n e stimated combined value of $ 900,000. Based o n a declaration from D ebra’s attorney, the Postnuptial Agreement was first produced at Steven’s
debtor’s exam on May 4, 2022, six days aft er t he hearing granting Debra’s motion for summ ar y judg ment, and two days after the Postnuptial Agreem ent was executed

. Although the exact

a mount o wed

— after accounting for Steven’s partial payment in March 2022
, the $1,000
recurri ng civil fine underlyin g t he O regon Contempt Judgment , and the overall ac cr ued
in terest

— is unclear
, by the date of the debtor’s exam , Debra alleged Steven still owe d her $13 9,892 .58 in unpaid spousal support

. Setting the circumstances of the Postnuptial Ag reement aside , we must rec ogn i ze the procedural errors und erlying the pro ce edings below. Steven was not permitted to present
evi dence or testimony in his defense or i n mitig ation of h is found contempt before or af ter

su mmar y judgment was imposed , including during the h earing on the mo t ion to reconsider

. T he
district court found Steven in contempt, and imposed a criminal sanction, b ased only on evidence
in the record

— no t live testimony and pr offered evidence

. A lthough Steven appeared at the arraignment heari ng and was no t in default
, he was found guilty of criminal contempt witho u t a tri al , a nd criminally sanctioned without the oppor tunity to presen t a defense , put on ev idence or testimony at a hearing, or cross

- examine witnesses

.14 Contrary to this procedure, w hen a defend ant is not in de f ault, and there is a general denial by the d efendan t to the charge of non

- summary contempt , Idaho Rule of Civil Procedure
75 re quires an y findi ng of contempt and any sanction to be reached through a trial

. Regardless of
whethe r the proceed ing is ultima tel y criminal or civil in nature, nothing in Ru l e 75 al lows for an adjudi cation of non

- summary contemp t through a summary judgment procedu re

. As R ule 75 explains, i f a defendant denies a charge of non

- summary civil or criminal

co ntempt, “the matter must b e s e t for a trial.” See I.R.C.P. 75(g)(2) (emph a sis add ed). T he
defendant also “ must be given at least 14 days to prepare for trial , unles s otherwi se ordered by
the court. ” Id

. In non

- summary civil or criminal contempt proceedings , a t the defe ndant’s “firs t

a p pearance ” to answer the charge
, the trial c o urt is also required to i nform the defendant of,

among other things, the “right to a trial ” and “ri ght to confront witnesses” against him
, “including watching the witnesses testify in court and q uestioning th em[

. ]” See I.R.C.P. 75(f)(1)(D ) , ( E). Indeed, t he reco rd does not reflect that Steven was advised of a ny of his rights

as listed in Idaho Ru le of Civi l Proc edu re 75(f)(1)(A)

– (F). Otherwise
, as set out in Rule 75(f)(1)(D), c ont empt sanctions ar e on ly permit ted in non

- summary proceedings if the defendant
either admits to the con tempt, “or is found in contemp t following a trial .” I.R.C.P. 75( l ) ( emphasis added)

. Rule 75 does incorporate other rules of civil procedure

— but only to the extent those
other rule s a re “ not in conflic t” with Rule 75. See I.R.C.P. 75(n). Apart from Rul e 75’s cl ear mandate for a trial to make finding s and impose any sanc ti ons for contempt, the expedite d trial
timeline Rule 75 calls for also conflicts with the timing posture typically re qui r ed of summary judgment motions under Rule 5 6, where Rule 56 motio ns “must be filed at least 90 day s before the trial date, or filed wi th in 7 days from the date of the order setting the case for trial, whichever
is later , unless otherwise o rdered by the co u rt. ” See I.R.C .P. 56(b)(1), (2) . Rule 75(g) (2) allows
for trial o n a non

- s ummary contempt charge i n as little as fourteen days

— while R ul e 56 generally requires the su mmary judgment “ motion, supporting documents and brief ” to be served
at l east twent y

- e igh t days before t he date of the hearing. Accor dingly
, the summary ju dg ment
pr ocedure under Rule 56 pl ainly does not apply, and cannot be em ployed, to adjudicate non

summ ary civil or criminal contempt under Rule 75. Unless contempt charges are brought u nde r I d aho Code secti on 18

- 1801 or another
crimina l statute, Rule 75 pro vides the governing roadmap for a ll civil and criminal non

- summary15 co nt empt proceedings

. See Hon. Dan iel T. Eismann, Contempt

- the Basics and More , 51 The
Advocate 13, 14

– 15 ( Oct

. 20 08)

. A nti c ipating the reflective nature of non

- summar y contempt proceedings , Rule 75 plots a course for what protections and process must be aff or ded the alleged contemnor to a llow the trial court, at the conclusion of the proceeding, the latitude t o impos e a cr imi n al or civil sanction , or both, in its discr etion

. See Camp , 137 I daho at 8 64 , 55
P.3d at 318 . B eca use the character of a non

- summary c on tempt proceeding is defined at its conclusion, all involved should remain mindful of what process and p rotectio ns ar e a f forded the alleged contemno r along the way before a court can pro perly exe rcise its discretion in impos ing a particular sanction(s)

. S ee id

. F or example, i f an uncond itional (criminal) sanction is ultimately imposed, there must be

a findin g of wil lf ul con t empt “proved beyond a reaso nable doubt ” whe n the alleged contempt is “[d] i sobedience of any lawful judgment, order or process of the c ou rt

. ” I.R.C.P. 75(j)(2); Camp , 137 Idaho 86 0

– 6 1, 55 P.3d 3 14

– 15 ; I.C. § 7

- 601(5) ; s ee In re Weick , 142 I daho at 2 8 1, 127 P.3d

at 184. Notably, the party bringing th e contempt charge must prove th at the contemnor willful ly failed to comply with the court o rd er, but the charging party is not required to disprove the contemnor’s potential affirmative defense of a then

- ex ist ing i nability to comply with the co urt order

. I d . at 282, 127 P.3d at 185 ; see I.R.C.P. 75(h)(1)(A)

. F urthermore, i f a criminal sanction is to be imposed , “the court cann ot exclude evidence
in mitigation” from the defendant

. Cooke v. United S tates , 267 U. S. 51 7, 538 (1 925) ; s ee I.R.C.P. 75(b)(2)(B), ( l )(2). Regarding such e vidence, a trial court may take i nto consideration

“ [1] the extent o f the willful and deliberate defi ance of the court’s order, [2] the seriousness of the consequences of t h e contumaci ou s b eh avior, [3] the necessity of effectively ter minating the
defendant ’s defian ce as required by the pu blic interest, and [4] the importan ce of deterring such
acts in the future.” United Mine Workers of Am. , 330 U.S. at 303

. On the other hand, i f a condi ti ona l (civil) sanction is ultimately to be impose d on the same grounds for conte mpt under section 7

- 601( 5) , the re must be a finding of will fu l contempt by a preponderance o f the evidence, and a finding “ that the contemnor has the present abilit y to comply w ith t he order violated, or with that portion of it required by the san ction.” I .R.C.P. 75(j)(1) (emphas is added)

. Unlike a criminal sancti on , a trial court can “impose a c ivil contempt sanction only if the contemnor [has] the present abi lity t o comply wi th th e order violated.” Camp , 137 Idaho at 865, 55 P.3d at 319 (emphasis added). Without this finding, an y imposed16 sanction

— even if labeled co nditional

— necessarily becomes u nconditional and criminal in

nature. If the contemn or cannot present ly c omply with th e o rd er violated, the sanction imposed
cannot be avoided, and is there by puniti ve and will lack the “co ercive” characteristic underlying

c iv il contempt. See Mc N

eil v. Dir. , Patuxent Inst

. , 407 U.S. 245, 251 (1972) ; Maggio , 333 U. S.

at 72 (“[T] o jail one fo r c on tempt for omitting an act he is powerless t o perform would

. . . make
the proceeding purely puniti ve, to describe it charitably.”)

. Th is simply means “ [ i ] ndividuals unable to [presently] comply, because of their own bad
faith a ctions or otherwise, ma y b e subject to criminal sanctions, but may not be held in civil

conte mpt .” In re Marc Rich & Co., A.G. , 736 F. 2d 864, 866 (2d Cir. 1984) (e mphasis added)

. Critically, o nc e a n allege d contemnor ente rs a “plea denying the contempt charged,” the

contemnor is al lo wed seven days to file and serve all affirm ative defenses to civi l or crim inal contempt , “unless o therwise ordered by the court.” I.R .C .P. 75(h)(1). T wo of those affi rma tive
defenses im pact the trial court’s latitude in permissibly imposi ng a crimin al or c ivil sanction

. First, relevant to criminal sanctions, a contemnor might al lege that he was “unable to comply
with the court order at th e time of the alleg ed violation [.]” I.R.C.P. 75(h)(1)(A). T his affirmative
defense can only avoid the i mposition o f an un conditional (criminal) sanction, and under it, the
contemnor “bea rs the bu rden of producing eviden ce that creates a reasonable doubt as to his ability to comply.” In re W ick , 142 Idaho 275, 282, 127 P.3d 178, 185 (200 5)

. Notably, t he

cont emnor may r el y o n his Fifth Amendment privilege against compu lsory self

- incriminati on to dec line questions
, but that privilege is not a “sword whereby [ t he contemnor ] asserting the

p r i vilege would be freed from adducing proof in support” of carrying his bu rden of pro du cti on

. See United States v. Rylander , 460 U.S. 7 52, 758 (1983).
Secon d, releva nt to civil sanctions, a contemnor might allege that he lac k s “the present ability t o comply with the court order” violated. I.R.C.P. 75(h)(1)(B). To prevent a civi l sanction
fr om be ing imposed, the contemnor carries the burd en of proving this aff irmative defense by a preponderan ce of the evidence. I.R.C.P. 75(h)( 2)

. The contemner also ca r ries th e burden of producing evidence to establish his present inability to com ply. See Ry la nde r , 460 U.S. at 757; Maggio , 333 U.S. at 75 ; U .S. ex rel. Thom v. Je nkins , 76 0 F.2d 736, 739

– 40 (7 th Cir. 1985)

. The
contemnor’s burden to prove this affirmative defense is not met if the contemnor offers no
evidence in the proceeding as to his present i nab il ity to comply, “stands mute,” or simply rel ies
on “his own denial s which t he court finds incredibl e[. ]” Maggio , 333 U.S. at 75

– 76.17 N ev ertheless, to impose c i vil sanc tions at all , due process still requires that the contemnor, at a minimu m, be offer ed a me aningful opportunity to present testimony a nd evidence regarding his prese nt inability to comply w ith a court order. See Donovan v. M az zola
, 716 F.2d 1226, 1 240 (9th Cir. 1983); Thomas, Head & Greisen Emps. Tr. v. Buster , 95 F.3d 1449, 14 58

– 59 (9th Ci r. 19 96); In re Icenhower , 755 F.3d 1130, 1138

– 3 9 (9th Cir. 2014) ; Cit ronelle

- M obile Gathering, Inc. v. Watkins , 943 F.2d 1297 , 1304 (11th C ir. 1991). Some

cour ts ar e sati sfied, in limited circumstances, with allowing civil contempt sanctions based solel y

on af fidavits or declaration s , and no trial

- like hearing

. See, e.g. , I n re Icen hower , 755 F.3d at
1139 ; Peterson v. Highland Music, Inc.
, 14 0 F.3d 1313 , 1324 (9th Cir. 199 8). However, as explained above, this is not the rule in Idaho. Rule 75 requires th at th e meaningful opportunity to present such fact s be afforded through a trial

— n ot summary judgment.
Ac cordingly
, if the contemnor is prec lu ded by the tria l cou rt from off ering evidence of a present inability to comply because that affirmative defense is d eem ed waived under Rule 75(h)(1), a civil sancti on for contempt necess arily bec omes unavailable. This i s because for a
civil sanction to b e available, the t rial court must find by a preponderance of the evidence “that the contemnor has the pre sent abilit y to co mply with the order violated, or with that portion of it required by the s anction.” I.R.C.P. 75(j) (1), (k). Waiver alone cannot serve a s a placeho lder for

a n affirmat ive finding of fact required by Rule 75. More importantly
, d ue process cannot perm it a fi nding of fact adverse to the contemnor by v irtue of waiver

— and no t substan tial evidence

— when the c ontemnor was also denied any meanin gf ul opportun ity a t trial to over come it. Cf. Clayson v. Zebe , 153 Idaho 228, 232, 280 P.3d 731, 735 (201 2) (explain in g t he standard of review that findings of fact f ollowing a bench
trial must be supported by substantial evidence )

. Otherwise
, conditional sa nctions cou ld pa ss as civil in name only, while in substance be wholly punitive and arbitrarily imposed

. Cf. Neigh bo rs fo r a Healthy Gold Fork v. Valley C nty. , 145 Idaho 121, 127, 176 P. 3d 126, 1 32 (2007) (“Procedural d ue process requires some process to e nsu re that the individual is no t arbitrarily deprived of his or her rights in violation of the state or federal co ns tit ut ions.”).

“ C ontempt proceedings are quasi

- cr iminal in nature[,]” M atter of Williams , 120 Idaho 473, 47 6 , 817 P.2d 139, 14 2 (1991) , a nd t he contemnor’s liberty interest is always at stake
because i ncarceration could be imposed as either a c ivil sancti on , I .C . § 7

- 611, or a criminal sanction, I.C. § 7

- 610. Therefore, if a contemnor is barred from raising the affirmative defense of18 a presen t inability to comply with the or der violated under Rule 75(h)(1)(B) due to waiver
, the only potential sa nction late r all ow ed by due process is a criminal one

. Thus, t o avoid becoming
hams trung int o imposing a criminal sa nction
, leave to permit untim ely af fi rmative de fenses in contempt pr oceedings should be “freely given ” by trial courts “ when justice so requ ires.” See
I. R.C .P . 15(a); West v. El Paso Prod s . Co. , 122 Id aho 133, 135, 832 P.2d 306, 308 (1992 )

. In the instan t case, the district c ourt erred in f in ding Steve n in willful contempt of the Oregon Contempt Judgment through a summary judgment procedure, i nstead of a t ria l as required by Rule 75. In light of this pr ocedural er ror, and th e added e rror of imp osing a crimi nal
sanction without the protection s required as discussed above, th e proceedings on Debra’s contempt charge must start anew on remand , from the initia l ple ad ing stage. For this reason, we also do not reach Steven’s assign men t of e rror on appeal regarding
the district court’s decision to d en y him leave to assert civil and criminal affirmative defenses under Rule 75(h) (1)(A) and (B)

. T he issue of whether t o g ra nt Steven leave to assert affirmative
defen ses may be revisited o n remand if it arises again after the pleadings are closed
, and the
ti ming for rais ing affirmative de fenses has expired

. In that instance , i f t he distr ict court decides
to d eny Steven le av e t o assert the affirmative defense to a civil sanction under Rule 75(h )(1)(B),

t hen consistent with the principles above, the court mus t recognize that doing so limits it t o imposing only a criminal sanction , through t he process and protect ions required b y R ule 75 and
the federal constitution

. See Ca mp , 137 Idaho at 86 0 , 55 P.3d at 31 4

. Finally , in light of t he decisions above , Steven’s a ss ignment of error regarding his m oti on for reconsideration challenging the grant of Debra’s motion for s ummary judgme nt is moot.

C. Beca use a new trial is ordered , the parties may file a motion for disqu alification of the p residing district judge on reman d u nd er Id aho Rule of Civil Procedure 40 (a) (5). Steven also requested that a new district judge be assign ed on remand. I n s up port of his request, Steven asserts , withou t citations to the record
, a cogent ar gument , or suppor ting authority
, that the presiding di strict judge was “ contemptuous” and “d ismissive

. ” We will not order a new district judge to be assi gned when Stev en ’ s b ri efing on this issue does not comply
with Id aho Appellate Rule 35 (a)(6)

. See Bach v. Bagley , 148 Id aho 784, 790, 229 P.3d 1146, 1152 ( 20 10)

. Never th el ess, this doe s not precl ude Steven

— or Debra

— from moving to disqualify the presiding dis tr ict judge aft er re mand

.19 “ A fter a trial has been held
, if a ne w trial is ordered by the tr ial court or by an appellat e

court , each party may file a m oti on for disqualification without c ause of the presiding judge ”
within the time limits set forth in Rule 40 (a) (1). I.R.C .P. 4 0 (a) (5 ) (emphasis added). Here, a trial

li k e proceeding should have initially been held by the pre siding district judge as required b y Rule
75

— but was not

. W e are ord ering a new t rial to occur on r emand , after what was effectively a funda mentally defe cti ve “ tria l ” proceeding below
, within the langu age of Rule 40 (a) (5). Because
of this
, either S teven or Debra, if they so choose
, may prop er ly move to disqualify the presiding district judge und er Rule 40 (a) (5) afte r re mand , without needing to show cause

.

D. Att or ney Fees Below an d on Appeal
Steven and Deb ra both request attorney fees on appeal under Idaho C od e section 7

- 610.
Section 7

- 610 prov id es that in a contempt proceeding, “ the court in its d iscretion, may awa rd attorney’s fees and costs to the prevailin g p ar ty.” See Bald, Fat & Ugly, LLC v. Keane , 15 4 Idaho 807, 812, 303 P.3d 166, 171 (201 3). Here, Deb ra did not prevail on appea l; thus, s he is not entitled to an award of fees on appeal

. As fo r Steven , he preva iled on appeal to the extent he can

now re

- li tig at e Debra’s conte mpt charge on remand

— but he has not ultimately prevailed in this

con tem pt proceed in g . “Where there is no pre sent preva il ing party, this Court has refused to award attorney’s fees.” P ortfolio Recovery Assocs., LLC. v. MacDon ald , 162 Idah o 2 28 , 236,
395 P.3d 1261, 1269 (2017)

. Consiste nt with this principle, and our discreti on regarding fe es under section 7

- 610, i f Steven i s ultimately the prevailing party be low after remand , t hen the trial

cour t may award him attorney fees fo r this appeal

. I n addition, bec ause we are vacating the judgm ent of contempt and the decisions
und erly ing the co ntem pt proceedings, we must also vacate t he award of attorney fees and costs
made below to Debra because she is not yet a “prevailing party” und er section 7

- 610

. See Camp , 1 37 Idaho at 866, 55 P.3d at 320. Although Debra is not entitled to fees f or this appeal
, if she ultimately pre vails in her c ontempt charge against Steven on remand
, then the district court ma y, in its discretion under section 7

- 610, award D ebr a reasonable attorney fees and costs for the entire proceedings below, i.e., the pro ceedings pre

- an d post

- appeal.
Steven also requests a ttorney fees on appeal under Idaho Code section 12

- 121 , arguing
D ebra’s entire defense of this appeal w as frivolous, un re asonable and without any foundation.
Howeve r, “ a ttorney fees may not be aw arded under Idah o Code s ection 12

- 121 when the case
involve s an issue of first impression.” Erickson v. Eric kson , 171 Idaho 3 5 2, 371 , 521 P.3d 1089,20 1108 (2022). T h e instant app eal a nswered q uestions of first impression regar ding the proper procedure for n on

- summary conte mpt proc eedings under Idaho Rule of Civil P ro cedure 75

. Moreover, a s explained above, other jurisdictions

— cont rary to Idaho’s approach under Rule
7 5

— allow non

- su mma ry contempt to be adjudicated through summary judgment in limited
circumstan ces , similar to the proc edure employed below and defended b y Debra on appeal

. See,

e.g. , Peterson v. Highlan d Music, Inc.
, 140 F.3d 1313, 1324 (9 th Cir. 1998)

. Thu s , Ste ven is n ot

en titled to fees on appeal under section 12

- 1 2 1 because Debra’s “entire” def ense of this app eal

was not frivolous, unreasonable, or wit ho ut founda tion. See Thomas v. Madsen , 142 Idaho 635,
63 9, 132 P.3d 392, 396 (2006).
IV. CONCLUSION
For the r eason s set fo rth a bove, the judgment of contempt against Stev en is vacated, the
district cou rt’s decisions u nderlyin g its judgment of contempt are also v acated , a nd this case is
remanded for further p roceedi ngs that must begin anew, at the initial pleading stag e . Steve n i s awarded c osts on appeal under Idaho Appella te Rule 40(a). Chief Justice BEVAN, and Justices STEGNE R, MOELLER, and ZAHN, CONCUR

.