Original Proceeding Petition for Writ of Review From the District Court of Laramie County The Honorable Thomas T.C. Campbell, Judge
The opinion of the court was delivered by: Kite, Chief Justice.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.
[¶1] This Court granted the State of Wyoming, Department of Family Services' (DFS) petition for a writ of review of the district court's ruling that due process requires the state to provide an indigent party with counsel in a civil contempt proceeding for non-payment of child support when incarceration is one of the possible penalties. We conclude that appointment of counsel is not required because Wyoming has sufficient substitute procedural safeguards to protect indigent obligors against the possibility of wrongful incarceration. Consequently, we reverse.
[¶2] DFS presents the following issues for our review:
I. Does the Due Process Clause of the United States Constitution, as interpreted by the United States Supreme Court in Turner v. Rogers, ___ U.S. ____, 131 S. Ct. 2507 (2011), give indigent litigants the right to appointment of counsel in child support civil contempt proceedings where incarceration is a possibility?
II. If indigent litigants have a due process right to appointment of counsel in child support civil contempt proceedings, is the State of Wyoming Department of Family Services required to pay for the litigant's attorney's fees?
Respondents Tanya S. Currier (Mother) and Ronnie Hauck (Father) did not file briefs.
[¶3] In 2008, the district court entered a default judgment and order establishing Father's paternity of a child and ordering him to pay $228.00 per month in child support, which was the presumptive amount under the child support guidelines. On June 10, 2011, DFS filed a petition for an order to show cause as to why Father should not be held in contempt of court for failing to pay child support. The petition alleged he owed $9,681.25 in child support and attorney fees and costs, which included $7,996.25 to Mother and $1,685.00 to DFS. One of the possible sanctions for contempt included in the petition was "a jail sentence."
[¶4] The district court held a hearing on September 12, 2011.*fn1 Father appeared at the hearing without counsel and the district court advised him that he was entitled to appointed counsel at the state's expense if he was indigent. Father completed an affidavit for appointed counsel and the district court appointed a public defender to represent him. DFS filed an objection to the district court's order appointing counsel and the district court vacated the order with respect to the appointment of the public defender, presumably because public defenders do not handle these types of civil cases.
[¶5] After that, however, the district court entered an order denying DFS's objection to appointment of counsel and appointing counsel. The district court ruled that under the United States Supreme Court cases, Turner v. Rogers, ___ U.S. ___, 131 S.Ct. 2507, 180 L.Ed.2d 452 (2011) and Mathews v. Eldredge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), "due process does require court-appointed counsel when the State of Wyoming, through legal counsel, brings a child support enforcement proceeding against an indigent defendant." It then ordered ...