IN THE SUPREME COURT, STATE OF WYOMING

2013 WY 83

 APRIL TERM, A.D. 2013

July 10, 2013

BRANDON LEE JENSEN,

Appellant

(Plaintiff),

v.

MARGARET E. MILATZO-JENSEN,

Appellee

(Defendant).

No. S-12-0279

Appeal from the District Court of Laramie County

The Honorable Thomas T.C. Campbell, Judge

Representing Appellant:

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

Representing Appellee:

No appearance.

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

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers

are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming

82002, of any typographical or other formal errors so that correction may be made before final publication in

the permanent volume.

1

BURKE, Justice.

[¶1] Appellant, Brandon Lee Jensen (Father), challenges an order from the district 

court holding him in contempt for failing to comply with an order awarding attorney’s

fees to Appellee, Margaret E. Milatzo-Jensen (Mother). We recently reversed the district

court’s order awarding attorney’s fees to Mother in Jensen v. Milatzo-Jensen, 2013 WY

27, 297 P.3d 768 (Wyo. 2013) (Jensen I). As a consequence of our reversal of the

underlying fee order, we conclude that the contempt order must also be set aside, and we

reverse.

ISSUE

[¶2] The sole issue presented for our review is whether the district court’s contempt

order must be set aside following reversal of the underlying order awarding attorney’s

fees.

FACTS

[¶3] We recently decided several issues connected with this litigation in Jensen I. As 

discussed in that opinion, Father challenged the district court’s award of attorney’s fees to

Mother, which were incurred as a result of Father’s motions to compel answers to

interrogatories. Id., ¶ 34, 297 P.3d at 779. The district court ordered Father to reimburse

Mother $2,796.50 within 90 days of entry of the order. On appeal, this Court agreed with

Father that Mother had failed to establish the reasonableness of the attorney’s fees, and

concluded that the district court abused its discretion in awarding those fees. Id., ¶ 38,

297 P.3d at 780.

[¶4] During the pendency of that appeal, however, Father failed to pay Mother’s

attorney’s fees in accordance with the district court’s order. As a result, on July 10, 2012,

Mother filed a motion for an order to show cause as to why Father should not be held in

contempt of court for failing to pay the attorney’s fees. After a hearing on Mother’s

motion, the district court held that Father was in contempt for failing to pay the attorney’s

fees to Mother within 90 days of the court’s order. A written order holding Father in

contempt of court was entered on September 26. As a sanction for contempt, the court

ordered Father to pay Mother an additional $600.00 in attorney’s fees. Father filed a

timely appeal.

STANDARD OF REVIEW

[¶5] Whether the district court’s contempt order must be set aside following reversal of

the underlying attorney fee order is a question of law. We review questions of law de

novo. Plymale v. Donnelly, 2007 WY 77, ¶ 21, 157 P.3d 933, 938 (Wyo. 2007).
2

DISCUSSION

[¶6] Father’s brief, submitted prior to the issuance of our decision in Jensen I,

challenges the district court’s contempt order on the grounds that he had an “equitable

right of setoff” for amounts he claims were owed to him by Mother for child support.

Mother did not submit a brief or otherwise appear in this Court. Although the parties

have not requested an opportunity to provide supplemental briefing or argument

following our decision in Jensen I, we will proceed to determine, sua sponte, whether the

district court’s contempt order must be set aside as a result of our reversal of the district

court’s award of attorney’s fees. 

[¶7] The law in Wyoming is well-settled that “Whether the adjudication of contempt

‘survives the avoidance of [the] underlying order depends on the nature of the contempt

decree. If the contempt is criminal it stands; if it is civil it falls.’” See, e.g., In Interest of

C.N., 816 P.2d 1282, 1285 (Wyo. 1991) (quoting Ager v. Jane C. Stormont Hospital and

Training School for Nurses, 622 F.2d 496, 499 (10th Cir. 1980)). As explained in In

Interest of C.N., 

The purpose of a civil contempt is to compel a party to

comply with a lawful order. Horn v. District Court, Ninth

Judicial District, 647 P.2d 1368 (Wyo. 1982). The purpose of

a criminal contempt is to punish. Id.; Tracy, Green &

Company v. Warner, 704 P.2d 1306 (Wyo. 1985).

Id., 816 P.2d at 1285 (emphasis in original). In Ager, the Tenth Circuit elaborated more

fully on the difference between civil and criminal contempt:

The primary purpose of a criminal contempt is to punish

defiance of a court’s judicial authority. Accordingly, the

normal beneficiaries of such an order are the courts and the

public interest. Norman Bridge Drug Co. v. Banner, 529 F.2d

822 (5th Cir. 1976). On the other hand, civil contempt is

characterized by the court’s desire “to compel obedience of

the court order or to compensate the litigant for injuries

sustained from the disobedience.” Id. at p. 827. The remedial

aspects outweigh the punitive considerations. Thus, the

primary beneficiaries of such an order are the individual

litigants. The judicial system benefits to a lesser extent.

United States v. Wendy, 575 F.2d 1025 (2d Cir. 1978).

622 F.2d at 499-500. Additionally, criminal contempt proceedings are independent

criminal actions and must be conducted in accordance with W.R.Cr.P. 42. Swain v. State,

2009 WY 142, ¶¶ 15-16, 220 P.3d 504, 508-09 (Wyo. 2009) (citing Garber v. United
3

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

1

 

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

(b) Direct contempt proceedings. – A criminal contempt may be 

punished summarily if the judge saw or heard the conduct constituting 

the contempt and the conduct occurred in the immediate view and 

presence of the court. It may be dealt with immediately or, if done 

without unnecessary delay and to prevent further disruption or delay of 

ongoing proceedings, may be postponed to a more convenient time. The 

judgment of guilt of contempt shall include a recital of those facts upon 

which the adjudication is based. Prior to the adjudication of guilt the 

judge shall inform the accused of the accusation and afford the accused 

an opportunity to show why the accused should not be adjudged guilty of 

contempt and sentenced therefor. The accused shall be given the 

opportunity to present evidence of excusing or mitigating circumstances. 

The judgment shall be signed by the judge and entered of record. 

Sentence shall be pronounced in open court and reduced to writing, 

signed by the judge and entered of record. Rule 32 shall not apply to 

judgment and sentencing for direct contempt.

(c) Indirect (constructive) contempt proceedings. – A criminal contempt, 

except as provided in subdivision (b) concerning direct contempt, shall 

be prosecuted in the following manner:

(1) Order to Show Cause. – On the court’s motion or upon 

affidavit of any person having knowledge of the facts, a judge 

may issue and sign an order directed to the accused, stating the 

essential facts constituting the criminal contempt charged and 

requiring the accused to appear before the court and show cause 

why the accused ought not be held in contempt of court. The 

order shall specify the time and place of the hearing, with a 

reasonable time allowed for preparation of a defense.

(2) Motions; Answer. – The accused, personally or by counsel, 

may move to dismiss the order to show cause, move for a 

statement of particulars or answer such order by way of 

explanation or defense. All motions and the answer shall be in 

writing unless specified otherwise by the judge. An accused’s 

omission to file motions or answer shall not be deemed as an 

admission of guilt of the contempt charged.

(3) Order of Arrest; Bail. – If there is good reason to believe the 

accused will not appear in response to the order to show cause 

the judge may issue an order of arrest of the accused. The 

accused shall be admitted to bail in the manner provided by these 

rules.
4

[¶8] In the present case, it is clear from the record that the district court held Father in 

civil contempt. In imposing an additional $600.00 in attorney’s fees, which were

incurred as a result of Mother’s attempts to collect the original attorney fee award, the

district court stated that “I’m going to direct the original sanction. There’s no other need

for a sanction. The only sanction for violating the court order accepting Mr. Jensen’s

representations of the facts will be that the judgment be entered for those previous

attorney’s fees and an additional $600.” The additional $600.00 in attorney’s fees were

intended to compensate Mother for costs incurred as a result of Father’s failure to comply

with the order awarding attorney’s fees to Mother. Further, the district court did not give

any indication that the $600.00 sanction was intended as a fine, and the court did not

make any reference to, or attempt to comply with, W.R.Cr.P. 42. Because the district

 

(4) Arraignment; Hearing. – The accused shall be arraigned at 

the time of the hearing, or prior thereto upon the request of the 

accused. A hearing to determine the guilt or innocence of the 

accused may follow a plea of not guilty or may be set for trial at 

a later date or time. The judge may conduct a hearing without 

assistance of counsel or may be assisted by the attorney for the 

state or by an attorney appointed by the court for that purpose. 

The accused is entitled to be represented by counsel, have 

compulsory process for the attendance of witnesses, and may 

testify in his own defense. Unless the charged contempt is tried 

to a jury as provided in subdivision (e), all issues of law and fact 

shall be heard and determined by the judge.

(5) Disqualification of Judge. – If the contempt charged involves 

disrespect to or criticism of a judge, that judge is disqualified 

from presiding at the hearing and shall assign the matter to 

another judge.

(6) Verdict; Judgment. – At the conclusion of the hearing the 

judge shall sign and enter of record a judgment of guilty or not 

guilty. In addition to the requirements of Rule 32, a judgment of 

guilt for contempt of court shall include a recital of the facts 

constituting the contempt.

(7) Sentence. – Unless an accused may be sentenced to the 

penitentiary, a presentence investigation is not required but may 

be ordered. In other respects, Rule 32 shall apply to sentencing 

for contempt.

(d) Punishment. – Punishment for contempt may not exceed the criminal 

jurisdiction of the court. A sanction for contempt of court may be 

imposed by a justice of the supreme court, a judge or commissioner of a 

district court, a circuit court judge or magistrate or a municipal judge.
5

court’s order held Father in civil contempt of court, that order must be set aside following

our reversal of the underlying fee order in Jensen I.

[¶9] Reversed.