eCases

(emphasis added). In other words, a contempt proceeding is inherently rear-facing or reflective,
and “[w]hether contempt is criminal or civil does not depend upon the nature of the lawsuit in
which the contempt proceedings are brought.” See

id. at 862

55 P.3d at 316

. Because of this, the
nature of the sanction ultimately imposed—civil or criminal—is critical; the sanction imposed
reflectively determines what federal constitutional rights were applicable and required during the
earlier and underlying proceedings.

 at 860–61,

55 P.3d at

314–15 (listing the federal
constitutional rights that apply to criminal contempt proceedings).
Whether the imposed contempt sanction, as well as the underlying contempt proceeding,
are criminal or civil in nature turns on whether the sanction is unconditional or conditional.

 at
863–65,

55 P.3d at

317–19. “[A]n unconditional penalty is a criminal contempt sanction, and a
conditional penalty is a civil contempt sanction.”

Id. at 863

55 P.3d at 317

 (emphasis added)
(citation omitted) (footnoted omitted). A sanction is criminal and “unconditional if the
contemnor cannot avoid any sanction by complying with the court order violated.”

 Idaho
Code section 7-610 provides for “criminal contempt” sanctions in the form of a “fine of up to
$5,000 and/or by incarceration in jail for up to five days, unless the contempt is nonpayment of
child support in which case the jail sentence can be up to thirty days.” Camp,

137 Idaho at 865

.
In contrast, a sanction is civil and “conditional if the contemnor can avoid any sanction,
including probation, by doing the act he had been previously ordered to do.”

Id. at 864

. Civil contempt sanctions can include incarceration conditioned on purging the contempt,
8
I.C. § 7-611; a daily fine conditioned on the same, Camp,

137 Idaho at 864

, or
both. Incarceration is civil in nature only “[i]f the contempt consisted of the failure to perform an
act that is still within the contemnor’s power to perform[.]”

Id. at 865

 (emphasis
added); see I.C. § 7-611 (allowing conditional imprisonment if the “contempt consists in the
omission to perform an act which is yet in the power of the person to perform”). In other words,
for a sanction to be “civil” there must be a factual basis for finding that the contemnor “carr[ies]
the 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 power to avoid any penalty” imposed, Hicks ex rel.
Feiock v. Feiock,

485 U.S. 624

, 633 (1988). Thus, for a contempt sanction and the underlying
contempt proceeding to be “civil,” the trial court must make a finding, supported by substantial
evidence, that the contemnor has a “present ability to comply with the order violated.” Camp,

137 Idaho at 865

 (emphasis added).
In this case, after finding that Steven “willfully refused to comply” with the Oregon
Contempt Judgment, the district court’s written decision imposed an unconditional “fine of
$5,000” and ordered Steven to pay “said fine within ten (10) days” of the entry of judgment. The
district court’s ruling from the bench at the May 9, 2022, hearing was no different, where the
district court specified that the fine was “not conditional; it’s imposed[.]” Although the district
court inaccurately labeled the fine as a “civil sanction related to [Steven’s] non-summary
contempt of court,” the labels “affixed either to the proceeding or to the relief” do not control or
“defeat the applicable protections of federal constitutional law” in a non-summary contempt
proceeding. Camp,

137 Idaho at 863

55 P.3d at 317

 (quoting Hicks,

485 U.S. at 631

). Here, with
the sanction imposed, there was nothing Steven could do to avoid paying the $5,000 fine.
Accordingly, the sanction imposed by the district court was unconditional and thereby criminal
in nature. See Int’l Union, United Mine Workers of Am. v. Bagwell,

512 U.S. 821

, 829 (1994)
(“[A] flat, unconditional fine, totaling even as little as $50 announced after a finding of contempt
is criminal if the contemnor has no subsequent opportunity to reduce or avoid the fine through
compliance.” (quotation marks omitted)).
Because a criminal contempt sanction was imposed, the underlying proceedings were
required to afford Steven the numerous protections guaranteed under the federal constitution that
are applicable in non-summary criminal contempt proceedings. Camp,

137 Idaho at 860

55 P.3d at 314

. For example, unless the record otherwise reveals that Steven was “quite aware that a
9
criminal contempt was charged[,]” United States v. United Mine Workers of Am.,

330 U.S. 258

,
297 (1947), Steven had the right to notice at his arraignment hearing that a criminal sanction was
being sought, Gompers,

221 U.S. at

445–46; see I.R.C.P. 75(f)(1)(A). Steven also had the right
to a public trial, to cross-examine witnesses, and “to call witnesses to testify both in complete
exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed.”
Camp,

137 Idaho at

860–61,

55 P.3d at

314–15 (citing cases); see I.R.C.P. 75(i)(2) (listing the
trial rights that must be afforded to impose a criminal sanction in a contempt proceeding);
I.R.C.P. 75(l)(2) (explaining the right to call witnesses in mitigation, to be heard in mitigation,
and to otherwise make amends with the court before a criminal sanction is imposed).
Notably, Steven also would have had the right to a jury trial if the “maximum penalty
authorized by law, or actually imposed, exceeds six months [of] incarceration” or if the trial
court imposed “consecutive sentences totaling more than six months in length[.]” Camp,

137 Idaho 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 jury, provided that if the respondent is charged with multiple counts tried in one
proceeding, the court cannot impose consecutive criminal sanctions totaling more than 6 months
in jail unless the respondent was given, or voluntarily waived, the right to a jury trial.”).
Here, there is nothing in the record showing that Steven was advised by the district court,
or was even aware, that criminal contempt was charged. To the contrary, Debra initiated the
underlying proceedings with a motion and charge of contempt that requested “civil” sanctions.
Consistent with this, throughout the proceedings, Debra requested the “civil” sanction of
conditional incarceration based on Steven’s alleged present ability to comply with the payment
terms of the Oregon Contempt Judgment. Steven was also not afforded the right to a public trial,
to cross-examine witnesses, or to put on evidence or call witnesses in mitigation of his alleged
contempt to make amends with the court before the sanction was selected and imposed. Instead,
he was found in “willful” contempt through a summary judgment procedure, based solely on
evidence in the record, and denied any opportunity to put on evidence or challenge evidence
offered by Debra in a trial-like evidentiary hearing. Thus, the unconditional criminal contempt
sanction imposed by the district court was plainly entered in error.
Due to the unique and reflective nature of non-summary contempt proceedings, we
cannot simply remand this matter back to the district court to enter an appropriate sanction. Not
only was there no affirmative finding by the district court of Steven’s “present” ability to comply
10
with the Oregon Contempt Judgment as would be required to impose a “civil” sanction, but the
record is also devoid of any showing that the rights attendant to a criminal proceeding were ever
provided to Steven. Additionally, as explained further below, the summary judgment procedure
used by the district court to adjudicate Steven’s alleged contempt was also in error.
B. Idaho Rule of Civil Procedure 75 requires non-summary contempt proceedings to
be adjudicated through a trial, unless the alleged contemnor is in default.
Consistent with Idaho Rule of Civil Procedure 75(c), Debra commenced the underlying
contempt proceeding by filing a “Motion/Charge for Non-Summary Contempt Against
Defendant Steven Abell,” along with supporting factual allegations outside the pleading. Debra’s
motion contained one charge of contempt: Steven’s alleged willful failure to comply with the
payment terms in the Oregon Contempt Judgment. In the Oregon Contempt Judgment, entered
roughly one year and two months earlier, Steven was found in contempt for failure to pay
outstanding spousal support to Debra, and found to have the present ability (at that time) to
purge himself of his contempt. The Oregon circuit court gave Steven 60 days to purge his
contempt, and ordered, among other things, a conditional “civil” penalty of $1,000 to be imposed
every 30 days if he did not purge his contempt within 60 days.
Roughly one month after Debra filed her Idaho motion for contempt, the district court
held an “arraignment” hearing. Steven appeared pro se, and responded to the court’s questions,
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 general denial to the charge, and the
matter was set for trial roughly one and a half months out. Fourteen days after the arraignment
hearing, after Steven had made no filings, Debra filed a “Motion for Judgment on the Pleadings”
under Idaho Rule of Civil Procedure 12(c) and argued that based on the evidence in the record, it
was undisputed that Steven was “again in contempt” for failing to comply with the payment
terms of the Oregon Contempt Judgment.
Debra argued, in addition to her collateral estoppel argument, that Steven had waived any
affirmative defenses to the new contempt charge by failing to “file and serve a written response
within 7 days after entering a plea denying the contempt charged” as required by Idaho Rule of
Civil Procedure 75(h)(1). Debra essentially contended that the finding of Steven’s then-present
ability to comply found in the Oregon Contempt Judgment collaterally estopped Steven from
now employing the affirmative defense to a criminal sanction that Steven was “unable to comply
11
with the court order at the time of the alleged violation,” I.R.C.P. 75(h)(1)(A). Debra further
contended that this affirmative defense, as well as the affirmative defense to a civil sanction that
Steven may have lacked “the present ability to comply with” the Oregon Contempt Judgment,
I.R.C.P. 75(h)(1)(B), were both precluded by waiver. From this, Debra claimed she was entitled
to judgment as a matter of law that Steven was in contempt, and that a “civil” sanction of
conditional incarceration be imposed until he complied with the Oregon Contempt Judgment.
To be clear, although the parties and the district court below spoke in terms of Debra
moving for “judgment on the pleadings” under Rule 12(c), her motion here is properly
understood as a motion for summary judgment under Rule 56. “If, on a motion under Rule
12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court,
the motion must be treated as one for summary judgment under Rule 56.” I.R.C.P. 12(d); Syringa
Networks, LLC v. Idaho Dep’t of Admin.,

159 Idaho 813

, 823,

367 P.3d 208

, 218 (2016). Indeed,
Rule 75(c) required Debra to charge contempt by relying on matters outside her pleading and the
charge itself, which she did by incorporating her declaration, the Dissolution Judgment, the
Oregon Contempt Judgment, the Oregon Supplemental Judgment, and the other domesticated
Oregon judgments which were consolidated into the underlying proceeding. Thus, Debra’s
motion here is properly understood as a motion for summary judgment.
Four days after Debra moved for summary judgment, counsel appeared for Steven. That
same day, Steven’s counsel entered a formal denial for Steven on the charge. Steven’s counsel
also noted that Steven intended to assert the two affirmative defenses under Rule 75(h)(1)(A) and
(B) that Debra had argued were barred by collateral estoppel or otherwise waived. Seven days
later, Steven’s counsel responded to Debra’s motion for summary judgment, and argued that
Steven’s general denial of contempt at the arraignment hearing summarily defeated her motion
as his denial presented a genuine dispute of material fact that must be resolved through a trial.
Four days later, Steven’s counsel formally requested leave of the district court under Rule
75(h)(1) to assert Steven’s two untimely affirmative defenses to criminal and civil sanctions.
Two days later, at a hearing on April 28, 2022, and apparently relying only on the
evidence already offered by Debra in the consolidated record, the district court granted Debra’s
motion for summary judgment and at the same time denied Steven’s motion for leave to assert
the two affirmative defenses to criminal and civil sanctions under Rule 75(h)(1)(A) and (B). The
district court ordered Debra’s counsel to prepare a written order, which ultimately reflected that
12
the district court had found Steven in contempt because he had “willfully refused to comply with
the spousal support payment terms ordered in the Oregon Contempt Judgment[.]”
On May 2, 2022, four days after the hearing at which Debra had been granted summary
judgment on her new charge of contempt against Steven, counsel for Steven notarized—and
Steven executed—a “Postnuptial Agreement” between Steven and his second wife, Pamela. The
Postnuptial Agreement appears to have been “made” roughly two weeks earlier—on April 15—
the same date Steven’s counsel appeared. Yet, the Postnuptial Agreement was apparently held on
to and not executed until four days after the grant of Debra’s summary judgment motion.
The Postnuptial Agreement purports to transfer all of Steven’s community property
interests in real property, wages, income, earnings, and retirement benefits acquired during the
marriage to Pamela, as her sole and separate property, in an alleged attempt to avoid Debra’s
ability to collect on the Oregon Contempt Judgment, or any further judgment.
Two assets purported to be part of Pamela’s “sole and separate” property were a
retirement account and an Idaho residence purchased in March 2019, one month before Steven
stopped paying Debra spousal support, with an estimated combined value of $900,000. Based on
a declaration from Debra’s attorney, the Postnuptial Agreement was first produced at Steven’s
debtor’s exam on May 4, 2022, six days after the hearing granting Debra’s motion for summary
judgment, and two days after the Postnuptial Agreement was executed. Although the exact
amount owed—after accounting for Steven’s partial payment in March 2022, the $1,000
recurring civil fine underlying the Oregon Contempt Judgment, and the overall accrued
interest—is unclear, by the date of the debtor’s exam, Debra alleged Steven still owed her
$139,892.58 in unpaid spousal support.
Setting the circumstances of the Postnuptial Agreement aside, we must recognize the
procedural errors underlying the proceedings below. Steven was not permitted to present
evidence or testimony in his defense or in mitigation of his found contempt before or after
summary judgment was imposed, including during the hearing on the motion to reconsider. The
district court found Steven in contempt, and imposed a criminal sanction, based only on evidence
in the record—not live testimony and proffered evidence. Although Steven appeared at the
arraignment hearing and was not in default, he was found guilty of criminal contempt without a
trial, and criminally sanctioned without the opportunity to present a defense, put on evidence or
testimony at a hearing, or cross-examine witnesses.
13
Contrary to this procedure, when a defendant is not in default, and there is a general
denial by the defendant to the charge of non-summary contempt, Idaho Rule of Civil Procedure
75 requires any finding of contempt and any sanction to be reached through a trial. Regardless of
whether the proceeding is ultimately criminal or civil in nature, nothing in Rule 75 allows for an
adjudication of non-summary contempt through a summary judgment procedure.
As Rule 75 explains, if a defendant denies a charge of non-summary civil or criminal
contempt, “the matter must be set for a trial.” See I.R.C.P. 75(g)(2) (emphasis added). The
defendant also “must be given at least 14 days to prepare for trial, unless otherwise ordered by
the court.”

 In non-summary civil or criminal contempt proceedings, at the defendant’s “first
appearance” to answer the charge, the trial court is also required to inform the defendant of,
among other things, the “right to a trial” and “right to confront witnesses” against him,
“including watching the witnesses testify in court and questioning them[.]” See I.R.C.P.
75(f)(1)(D), (E). Indeed, the record does not reflect that Steven was advised of any of his rights
as listed in Idaho Rule of Civil Procedure 75(f)(1)(A)–(F). Otherwise, as set out in Rule
75(f)(1)(D), contempt sanctions are only permitted in non-summary proceedings if the defendant
either admits to the contempt, “or is found in contempt 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 rules are “not in conflict” with Rule 75. See I.R.C.P. 75(n). Apart from Rule 75’s clear
mandate for a trial to make findings and impose any sanctions for contempt, the expedited trial
timeline Rule 75 calls for also conflicts with the timing posture typically required of summary
judgment motions under Rule 56, where Rule 56 motions “must be filed at least 90 days before
the trial date, or filed within 7 days from the date of the order setting the case for trial, whichever
is later, unless otherwise ordered by the court.” See I.R.C.P. 56(b)(1), (2). Rule 75(g)(2) allows
for trial on a non-summary contempt charge in as little as fourteen days—while Rule 56
generally requires the summary judgment “motion, supporting documents and brief” to be served
at least twenty-eight days before the date of the hearing. Accordingly, the summary judgment
procedure under Rule 56 plainly does not apply, and cannot be employed, to adjudicate non-
summary civil or criminal contempt under Rule 75.
Unless contempt charges are brought under Idaho Code section 18-1801 or another
criminal statute, Rule 75 provides the governing roadmap for all civil and criminal non-summary
14
contempt proceedings. See Hon. Daniel T. Eismann, Contempt-the Basics and More, 51 The
Advocate 13, 14–15 (Oct. 2008). Anticipating the reflective nature of non-summary contempt
proceedings, Rule 75 plots a course for what protections and process must be afforded the
alleged contemnor to allow the trial court, at the conclusion of the proceeding, the latitude to
impose a criminal or civil sanction, or both, in its discretion. See Camp,

137 Idaho at 864

. Because the character of a non-summary contempt proceeding is defined at its
conclusion, all involved should remain mindful of what process and protections are afforded the
alleged contemnor along the way before a court can properly exercise its discretion in imposing a
particular sanction(s). See

id.

For example, if an unconditional (criminal) sanction is ultimately imposed, there must be
a finding of willful contempt “proved beyond a reasonable doubt” when the alleged contempt is
“[d]isobedience of any lawful judgment, order or process of the court.” I.R.C.P. 75(j)(2); Camp,

137 Idaho 860

–61,

55 P.3d 314

–15; I.C. § 7-601(5); see In re Weick,

142 Idaho at 281

127 P.3d at 184

. Notably, the party bringing the contempt charge must prove that the contemnor willfully
failed to comply with the court order, but the charging party is not required to disprove the
contemnor’s potential affirmative defense of a then-existing inability to comply with the court
order.

Id. at 282

127 P.3d at 185

; see I.R.C.P. 75(h)(1)(A).
Furthermore, if a criminal sanction is to be imposed, “the court cannot exclude evidence
in mitigation” from the defendant. Cooke v. United States,

267 U.S. 517

, 538 (1925); see
I.R.C.P. 75(b)(2)(B), (l)(2). Regarding such evidence, a trial court may take into consideration
“[1] the extent of the willful and deliberate defiance of the court’s order, [2] the seriousness of
the consequences of the contumacious behavior, [3] the necessity of effectively terminating the
defendant’s defiance as required by the public interest, and [4] the importance of deterring such
acts in the future.” United Mine Workers of Am., 330 U.S. at 303.
On the other hand, if a conditional (civil) sanction is ultimately to be imposed on the
same grounds for contempt under section 7-601(5), there must be a finding of willful contempt
by a preponderance of the evidence, and a finding “that the contemnor has the present ability to
comply with the order violated, or with that portion of it required by the sanction.” I.R.C.P.
75(j)(1) (emphasis added). Unlike a criminal sanction, a trial court can “impose a civil contempt
sanction only if the contemnor [has] the present ability to comply with the order violated.” Camp,

137 Idaho at 865