I agree with the result of reversal reached by the majority opinion. I would reach that result, however, by treating the case as one in which the trial court pursued the remedy of criminal contempt, but failed to proceed in a manner that would afford it jurisdiction over a criminal contempt proceeding.
We must recognize that, for this case, the authority to proceed in contempt is set forth in § 14-6-242, W.S. 1977. This statute does provide a specific criminal penalty for failure to obey or perform any order. Other than the precise statutory recognition of an inherent power of the court, however, this case cannot be significantly distinguished from United Mine Workers of America,Local 1972 v. Decker Coal Company, 774 P.2d 1274 (Wyo. 1989), and the line of Wyoming cases cited therein. Those cases areConnors v. Connors, 769 P.2d 336 (Wyo. 1989); Tracy, Green Company v. Warner, 704 P.2d 1306 (Wyo. 1985); Anderson v.Anderson, 667 P.2d 660 (Wyo. 1983); Horn v. District Court,Ninth Judicial District, 647 P.2d 1368 (Wyo. 1982); and Garberv. United Mine Workers of America, 524 P.2d 578 (Wyo. 1974).
This contempt proceeding was initiated by a Motion for Order to Show Cause why *Page 1286 the parents should not be held in contempt for failure to abide by the terms of the Order of Final Disposition. The motion was captioned in the juvenile case, and an Order to Show Cause simply advising the parents that they should appear "to show cause if any you have, why you should not be held in contempt of Court," also captioned in the juvenile proceeding, then was entered. After the hearing was held, the court entered an order finding the parents in contempt, and the court then entered an Order on March 13, 1990 providing, in pertinent part, as follows:
"IT IS THEREFORE ORDERED that there shall be entered in this matter an Income Withholding Order for the amount of $500.00 per month; said payments shall be made by cash, certified check or money order to the Clerk of Court, First Judicial District, Cheyenne, Laramie County, Wyoming, on or before the first day of each month, beginning with the month of March, 1990; said payment is based on a take-home salary of $2,800.00, and shall be placed in an interest bearing account by the Clerk of Court, until further order of this court; this payment is a continuing fine, to be treated as such by the Clerk of the District Court, to be disbursed to the Laramie School District Nos. 1 and 2 on an equal basis; but not until the entry of a further order of this Court authorizing such disbursements; the fine of $500.00 per month shall continue until such time as [parents] decide to purge themselves;
"THE COURT finds that this is the least intrusive remedy versus other options available in contempt proceedings, such as a jail term or having the minor children removed from the home; * * *." (Emphasis added.)
This fine obviously is punishment for prior conduct.
In UMWA Local 1972, 774 P.2d at 1280, the court articulated the controlling factors on the issue of the nature of a contempt proceeding in this way:
"1. In what manner did the contempt happen, that is, did the contemnor refuse to do an affirmative act or did the contemnor do that which he was ordered not to do;
"2. what was the substance of the proceeding;
"3. what kind of punishment was imposed; and
"4. for what reasons did the court impose that kind of punishment."
While the order of the juvenile court, in this matter, might be perceived as encompassing both punitive and remedial punishment, there is no question that the fine was punitive. We noted, inUMWA, Local 1972, 774 P.2d at 1281, that:
"* * * Where both criminal and civil relief are imposed in the same proceeding, as here, we recognize that `the criminal feature of the [contempt] order is dominant and fixes its character for purposes of review. Connors, 769 P.2d at 345 (quoting Hicks, [v. Feiock], 485 U.S. [624] at [639 n. 10], 108 S.Ct. [1423] at 1433 n. 10, 99 L.Ed.2d [721] at 736 [(1988)].'"
The applicable rule in this instance is one of subject matter jurisdiction, and it also is articulated in UMWA, Local 1972, 774 P.2d at 1284, as follows:
"* * * In Garber, we reviewed and set aside for lack of jurisdiction a district court's contempt order and bench warrant issued against several subpoenaed witnesses who had failed to appear for a hearing on an employer's complaint for a temporary injunction against a union arising out of a labor dispute. * * * In the course of setting aside the contempt order, this court decided, contrary to the district court, the contempt was criminal, not civil, in nature. Garber, 524 P.2d at 579 n. 1, 580. We noted that the alleged contemnors would have been informed of the nature of the action through the caption of the cause had the contempt matter been filed as an independent action. In particular, we observed:
"`As was said in 1911 in Gompers v. Buck's Stove Range Co., [221 U.S. 418, 446, 31 S.Ct. 492, 500, 55 L.Ed. 797], the matter should show the court or the public as a party. This is more *Page 1287 than a mere matter of form, it advises the defendant that it is a charge and not a suit * * *. Proceedings in criminal contempts are independent criminal actions and should be conducted accordingly * * *.'
"Four years ago in Tracy we reversed a conviction of a constructive criminal contempt because the district court failed to follow W.R.Cr.P. 41(b) notice procedure in issuing the contempt citation. We said:
"`The failure of the court to file and have served such notice is comparable to the failure of the prosecutor to file an information or indictment. Without the notice the court never obtains jurisdiction to proceed. The court here lacked jurisdiction to cite appellant * * * with criminal contempt. Accordingly, we must declare the order of contempt null and void.' Tracy, 704 P.2d at 1308.
"Our analysis of W.R.Cr.P. 41(b) and these cases leads us to conclude the district court failed to follow the necessary procedure in issuing the contempt citations to the individual contemnors and the union contemnors. This was, as we have found, a criminal contempt proceeding and should have been conducted as an independent criminal action. It was not, and the district court, therefore, never obtained jurisdiction to proceed. We hold the contempt orders against the individuals and the unions null and void."
This language describes precisely the situation of the parents in this case. No effort was made to invoke Rule 41(b), W.R.Cr.P. Instead, the contempt citation proceeded simply as an aspect of the juvenile court proceeding. In that guise, it perhaps could be sustainable if the relief were limited to civil contempt, but that obviously is not the case in this instance. The fact that the majority chooses to so label the case does not change the fact. There is no possibility of distinguishing this situation from the contempt proceedings described in our earlier cases.
There is yet another reason that the order of the district court should be reversed in this case. The statutory authority to require the parents to "undergo and cooperate with an evaluation and family assessment through the Southeast Wyoming Mental Health Center" in an order of disposition in a juvenile proceeding is limited in this way:
"As a condition of permitting the child to live in the home, order the child or his parents with their consent into counseling, treatment or another program designed to rectify problems which contributed to the adjudication." Section 14-6-229(f)(vii), W.S. 1977 (Cum.Supp. 1990) (emphasis added).
In light of this statutory limitation, the legislature did not extend to the district court subject matter jurisdiction to enter the order it did against the parents. I cannot agree with the conclusion of the majority that the trial court was vested with subject matter jurisdiction to enter the order upon which the contempt proceeding was premised. Matter of Contempt OrderIssued Against Anderson, 765 P.2d 933 (Wyo. 1988). See Begleyv. Nall, 62 Wyo. 254, 166 P.2d 466 (1946).
I agree that the order of the District Court must be reversed, but I would follow the foregoing reasoning and precedent to arrive at that result.