While a court was investigating the need for guardianship of an elderly Colorado man, the man's caseworker and her supervisor helped spirit him away to California. The trial court's order of criminal contempt against the pair is affirmed, but its order that they pay the would-be guardian's attorney fees is vacated. In the Matter of Lopez (Colo. Ct. App., No. 03CA0824, Oct. 7, 2004).
In 2002, Roger Lopez petitioned to become the guardian and conservator of his father, Donald. The court registrar appointed a visitor to investigate the need for a guardian or conservator. Lynn Smith, Donald's social services caseworker, and Victor Montoya, Ms. Smith's supervisor, acted in concert with Donald's California relatives to frustrate the guardianship proceedings. With Mr. Montoya's knowledge, Ms. Smith removed Donald from an assisted living facility, drove him to the airport, and left him in the care of a person who took him to California. Roger Lopez asked the court to hold Mr. Montoya and Ms. Smith in contempt. The court found them in contempt and sentenced them to six months in jail, suspended on the fulfillment of a number of conditions, including that they pay Roger's attorney fees.
Mr. Montoya and Ms. Smith appealed the contempt order and the order to pay attorney fees. They contended that the court lacked jurisdiction to hold them in contempt because they were not parties in the case or officers of the court, nor were they subject to any direct court order. They also argued that they could not be held in contempt for frustrating an order signed by a registrar, not a judge.
The Court of Appeals of Colorado affirms the contempt order but vacates the attorney fee award. The court rules that the power to punish contempt includes the ability to punish non-parties and non-officers who willfully interfere with judicial proceedings. Further, the court rules that even if the registrar's order does not qualify as a court order, Mr. Montoya and Ms. Smith could be held in contempt for willfully interfering with the underlying guardianship proceedings. However, the court rules that although attorney fees may be awarded in connection with remedial contempt, they may not be imposed as part of a punitive contempt sanction. "[L]ike criminal defendants," the court writes, "Montoya and Smith could defend on any ground without fear that they might be required to pay their opponent's attorney fees."
Roger Lopez was represented by previous ElderLawAnswers member Marvin Dansky of Westminster, Colorado.
For the full text of this decision, go to: https://www.cobar.org/opinions/opinion.cfm?OpinionID=4829
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