Opinion
Rehearing Denied May 15, 1973.
Mitchell & Babcock, Lewis T. Babcock, Rocky Ford, for plaintiff-appellee.
Geddes & Sparks, P. C., Kenneth Sparks, Colorado Springs, Ira D. Beynon, Lincoln, Neb., for defendant-appellant.
COYTE, Judge.
This is an appeal from an order holding defendant-appellant in contempt, awarding damages, attorney's fees, and assessing a fine. We affirm.
Plaintiff, Donald Lee Williams, and defendant, formerly Esther Lou Williams, were granted a divorce decree in July of 1967. Defendant was awarded custody of their two minor children, Ann Williams and Duncan Williams, with plaintiff having visitation rights.
In order that defendant and her children might join her present husband in Spain, she moved the court for permission to remove the two minor children from the United States for the months of June, July, and August of 1971. The court by order, entered May 17, 1971, granted defendant's motion for temporary removal of the minor children from the United States provided: That plaintiff's minor son, Duncan, be returned to Philadelphia, Pennsylvania, by defendant on August 17, 1971, by military air transport; that plaintiff at his expense, as soon as possible after his son's arrival in Philadelphia, transport the child by commercial aircraft to Denver, Colorado; that plaintiff arrange to meet and take the child into his custody at the airport in Denver; and that plaintiff keep the child in his custody until August 30, 1971, at which time he was to be returned to the defendant at her home in Colorado Springs.
Defendant did not send the child to Philadelphia on August 17, 1971, and the child was not returned to the United States until February 11, 1972, when he returned to Colorado Springs with the defendant.
In March 1972 plaintiff filed a motion for contempt under C.R.C.P. 107 and a citation and show cause order was issued. On April 27, 1972, a hearing on the contempt citation was held, at the conclusion of which the court found that defendant was in contempt of court and ordered defendant to pay plaintiff $42.77 in damages as expenses incurred by plaintiff in sending cablegrams and telegrams, and the further sum of $339.74 for plaintiff's attorney's fees and $300 to the clerk of the court as a fine to vindicate the dignity of the court.
Defendant brings this appeal, admitting that she did not return the boy as ordered by the court but contending that she was excused from strict compliance with the May 17, 1971, order because plaintiff had failed to contact her and make specific arrangements to meet the boy when he was returned to the United States.
The issue before this court is whether the court erred as a matter of law in finding defendant in contempt of court by reason of her failure to comply with the provisions of the order of May 17, 1971, and assessing a fine against her to vindicate the dignity of the court.
The record discloses that prior to and after August 17, 1971, plaintiff made various attempts to contact the defendant concerning the return of his son. Plaintiff inquired of the defendant by letter, dated July 31, 1971, as to what arrangements had been made for the return of the child and requested assistance in making schedule arrangements for his son's return. Having received no communication from defendant concerning schedule arrangements or word of his son's arrival in the United States, he attempted to contact her by cablegram and by telephone. While there is some dispute in the evidence as to whether defendant received these communications, there is no evidence in the record to indicate that defendant made any attempt to contact the plaintiff concerning arrangements for the return of the boy, or that any effort was made to communicate to the court or to her counsel as to her alleged difficulty in complying with the May 17, 1971, order.
The court in In re Wall, 146 Colo. 74, 360 P.2d 452, quoting from Fort v. Co-Operative Farmers' Exchange, 81 Colo. 431, 256 P. 319, stated:
'. . . (N)o case in this court has ever held that, in reviewing contempt judgments, we act as trier of facts to ascertain the sufficiency of evidence to support a contempt charge. Where the trial court has jurisdiction and regularly pursues its authority, and there is evidence of contempt, its decision on the facts is conclusive. . . .'
Since there was evidence that defendant had wilfully disregarded the court order, the instant case is controlled by this rule.
Having found the defendant in contempt, C.R.C.P. 107(d) provides authority for the court to punish for contempt. The rule provides:
'. . . A fine may be imposed not exceeding the damages suffered by the contempt, plus costs of the contempt proceeding, plus reasonable attorney's fees in connection with the contempt proceeding, payable to the person damaged thereby . . . . In addition thereto, to vindicate the dignity of the court, if the citation so states, a fine or imprisonment may be imposed.' The court did not abuse its discretion in requiring defendant to pay damages, attorney's fees, and fine as set forth herein.
Judgment affirmed.
DWYER and ENOCH, JJ., concur.