Opinion
Feb. 17, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 607
Samuel J. Merlo, Cortez, for plaintiff in error.
Parga & Dyer, Robert E. Parga, Cortez, for defendants in error.
COYTE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties appear in the reverse order from which they appeared in the trial court and will be referred to herein as they appeared in the trial court or by name.
The District Judge of Montezuma County sitting at Cortez, Colorado, had heard extensive testimony between the above parties and others relating to the rights, duties, and obligations of the parties in and to certain water and ditch rights and rights of way.
At the conclusion of the hearing, the trial court entered an order restraining the respective parties from doing certain acts and directed the defendant Spencer to either pay a certain sum of money into the court or to rebuild a ditch and remove, under the direction of a court appointed referee, Lloyd Doerfer, certain dirt and fill placed on the banks of the ditch.
Defendant Spencer elected to repair the ditch and remove the fill.
Later one of the plaintiffs filed a verified petition alleging that Sherron F. Spencer had willfully and deliberately violated the court order and requested that a citation against Spencer be issued requiring him to show cause why he should not be held in contempt of court for the violation of the court order.
Pursuant to an order of the court, a citation was issued by the clerk which recited that an order had been entered requiring Sherron F. Spencer to appear before the District Judge of Montezuma County on the 4th day of May, 1966, at 9:30 a.m., and show cause why said defendant Spencer should not be held in contempt of court for failure to comply with the terms of said certain order and to vindicate the dignity of the court. The citation then directed defendant Spencer to be and appear before the District Judge on Wednesday, the 4th day of May, 1966, at 9:30 a.m.
By stipulation of the parties the hearing was set over until the 6th day of May. In the stipulation the defendant Spencer acknowledged receipt of a copy of the petition and citation.
After a full evidentiary hearing which lasted a full day and into an evening session, the court found that defendant Spencer had violated the previous court order and had threatened the referee, an officer of the court. Defendant was fined $150.00 damages suffered by plaintiffs by reason of the violation of the court order, $150.00 attorney fees incurred by plaintiffs for attorney fees in connection with the contempt proceeding, and $200.00 to vindicate the dignity of the court.
Defendant alleges as error (1) that the court had no jurisdiction because the petition was not accompanied by affidavit; (2) that citation was defective because it merely ordered the defendant Spencer to appear and did not specifically order him to show cause why he should not be punished for contempt of court; (3) that if the citation were sufficient, it was insufficient to sustain the fine of $200.00 to vindicate the dignity of the court because the citation did not contain the precise language of R.C.P.Colo. 107(d); and (4) that the order was void because the court failed to make a finding of Spencer's present duty and ability to perform as far as reconstructing the ditch and removing the overburden were concerned.
There is no merit to defendant's appeal. He does not challenge the findings of the trial court that he had violated the order of the court and had threatened an officer of the court. R.C.P.Colo. 107(c) provides for civil contempt out of the presence of the court and states:
'When it appears to the court by motion supported by affidavit that a contempt has been committed out of the presence of the court, it may ex parte order a citation to issue to the person so charged to appear and show cause at a time designated why he should not be punished therefor. The citation and a copy of the motion and affidavit shall be served upon such person a reasonable time before the time designated. * * *'
R.C.P.Colo. 107(d)--Trial and Punishment provides that:
'The court shall hear the evidence for and against the person charged and it may find him guilty of contempt and by order prescribe the punishment therefor. 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. If the contempt consists of the failure to perform an act in the power of the person to perform he may be imprisoned until its performance. In addition thereto, to vindicate the dignity of the court, if the citation so states, a fine or imprisonment may be imposed. * * *'
The purpose of spelling out the charge in the citation is to notify defendant of the seriousness of his situation, so that he may shape his course and prepare his defense. In the case of Shapiro v. Shapiro, 115 Colo. 501, 175 P.2d 387, the court stated at page 504 of the Colorado report:
'In the case before us, the affidavit recited acts alleged as constituting contempt and the citation merely recites that it appears to the court that the defendant has violated a restraining order therein mentioned and an order to pay certain sums of money, and he is commanded to appear and show cause why he should not be punished for contempt for neglect and refusal to comply with the order of the court. The requirement of the rule is one of substance and purpose. In the absence of the required statement in the citation, the court had authority to punish remedially for the benefit of the person damaged thereby, but not punitively to vindicate the dignity of the court as was here attempted.'
Such is not the case before us. The defendant acknowledged receipt of the copy of the petition and citation and for purposes of this hearing, there is no distinction between a motion supported by affidavit and a verified petition. Gordon v. Seattle First National Bank, 49 Wash.2d 728, 306 P.2d 739. The hearing on the citation was continued from the 4th to the 6th of May. It lasted an entire day and into an evening session.
The citation recited that the court order had been entered requiring defendant to:
'* * * show cause why said defendant, Sherron F. Spencer, should not be held in contempt of court for failure to comply with terms of such order And to vindicate the dignity of the court.' (Emphasis supplied.)
Defendant had ample notice of the seriousness of the charge. The insertion of the above italicized words complied with the statutory requirement and the court had authority thereunder to impose the additional $200.00 fine.
The last objection (4) above noted by defendant has no application in the present case since defendant was not sentenced to jail.
The evidence supports the finding and orders of the trial court and the same are hereby affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.