Opinion by
In this post-dissolution of marriage proceeding, Dana L. Christiansen (mother) appeals the finding of conteropt and award of attorney fees in favor of Craig B. Webb (father). Becausе the evidence supports the trial court's finding that mother failed to communicate with father regarding their child's non-emergency medical condition before authorizing a diagnostic рrocedure on the child, we affirm the trial court's determination of "remedial contempt." However, because remedial sanctions can be awarded only with a purge clause, which the sanctions order here did not include, and because mother's one-time contemptuous act could not be purged, the attorney fees award is reversed.
I. Background
The court's 2007 order provided for shared decision-making on all major health decisions, including "joint decisions with regard to non-routine health issues." It also required the parties to notify and consult eаch other, if possible, for medical emergencies.
Father moved to hold mother in contempt, alleging, as pertinent here, that she violated the 2007 order when she "made a unilateral decision to have the child seen at the emer-geney room ... [and] she unilaterally require[d] a CAT sean" without contacting father in advance. Father requested remedial and рunitive sanctions, including attorney fees as a remedial sanction.
Mother responded that because the child's condition constituted a medical emergency, consultation with fаther before the CAT sean was unnecessary. She also argued that, nonetheless, she did call and confer with father twice, both before and after the CAT scan. Father asserted that mother had communicated only via text messages, which he had not received until after the CAT sean was completed. He also disputed that any emergency existed and asserted that mother's trip to the emergency room had been prompted by her desire to resolve uncertainty so she could take the child on vacation the next day.
The court found that thе child's condition "was not an emergency situation," that father "was not advised about the CAT sean until after it happened," and that mother's consultation with him was inadequate. The court held mоther in contempt and required her to pay father's attorney fees incurred in the contempt proceeding. However, the court "was unable to find punitive contempt."
II. The Record Supports the Finding of Contempt Mother first challenges the sufficiency of the evidence
A. Standard of Review and Law
"The decision whether to find a party in contempt is within the sound discretion of the trial court аnd will not be reversed on appeal absent an abuse of discretion." In re Marriage of Davis,
B. Analysis
Mother testified that in her opinion as a physician, a CAT sean was appropriate to diagnose the child's symptoms and that the emergency room physicians had agreed. She also testified that she had been referred by an urgent carе facility to the emergency room. She presented phone records purporting to show her two calls to father.
However, the evidence was conflicting whether the child's сondition constituted an emergency and whether the timing, method, and content of mother's contact with father were adequate. Because the record supports the court's findings оf no emergency and inadequate contact, we will not disturb the trial court's resolution of the conflicts. See In re Marriage of Herrera,
Accordingly, we conclude that the court did not err in holding mother in contempt for violаting the 2007 order.
III. Lack of a Purge Clause Precludes an Attorney Fees Award
Mother next raises questions of interpreting the "attorney's fees" clause in C.R.CP. 107(d)(2) and applying that interpretation to the facts, which, as concern her inability to purge the contempt, are undisputed.
A. Standard of Review and Law
Traditional principles of statutory construction inform the interpretation of court rules. Leаffer v. Zarlengo,
As presently drawn, "Rule 107 distinguishes between two types of contempt, direct and indirect, and two types of sanctions, punitive and remedial." In re Estate of Elliott,
We first conclude that attorney fees can be awarded only as a component of remedial sanctions. See In re Marriage of Nussbeck,
Cases predating the 1995 amendments to Rule 107 that hold otherwise are inapposite. See, e.g., In re Stone,
Rule 107(d)(2), "Remedial Sanctions," now provides, "Costs and reasonable attorney's fees in connection with the contempt proceeding may be аssessed in the discretion of the court." Because the phrase "the contempt proceeding" could mean either any contempt proceeding or only a contempt proceeding involving remedial sanctions, it is
Here, two such principles support our conclusion. First, use of "the" to modify "contempt proceeding" indicates a reference to a specific type of contempt proceeding, not a general reference to any contempt proceeding. See Brooks v. Zabka,
We next conclude that a remedial sanction must include a purgе clause. Such a sanction is "imposed to force compliance with a lawful order or to compel performance of an act within the person's power or present ability to perform." C.R.C.P. 107(a)(5). Thus, "[when the court imposes a remedial contempt sanction, it must do so 'in writing or on the record describing the means by which the person may purge the cоntempt. " Cyr,
Therefore, we further conclude that where the contemnor commits a one-time violation, incapable of being purged, attorney fees may not be assessed аs a remedial sancetion. The structure of Rule 107(d)(2) supports this conclusion: the attorney fees sentence is preceded by the requirement that the court enter an order "desсribing the means by which the person may purge the contempt and the sanctions that will be in effect until the contempt is purged." Cyr,
B. Analysis
Here, no remedial sanction was imposed, nor could one have been. The CAT sean contempt constituted a one-time violation of the 2007 order committed over a year before father even raised the issue with the court. By that time, mother could not undo what she had done. Hence, the attorney fees award must be reversed.
IV. Conclusion
The order is affirmed as to the finding of contempt and the attorney fees award is reversed.
Notes
. The division in Cyr,
. We decline to address whether the absence of a purge clause also invalidates the court's finding of contempt because mother did not raise this argument.