Submitted June 2, 2017
County Circuit Court 15CN01221; Ronald D. Grensky, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Rond Chananudech, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant. Kevin D.
Gardner fled the supplemental brief pro se.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Lauren P. Robertson, Assistant Attorney General,
fled the brief for respondent.
Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.
Or.App. 226] PER CURIAM.
appeals a judgment of contempt that ordered him to pay
delinquent child support and placed him on probation for a
determinate period of one year. He argues that the trial
court failed to follow the procedure required by
ORS 33.055 (2015) to impose remedial
sanctions for contempt, and that the court erred by imposing
punitive contempt sanctions in a remedial contempt
In relevant part, ORS 33.055 (2015) provides:
"(1) Except as otherwise provided in ORS 161.685,
proceedings to impose remedial sanctions
for contempt shall be conducted as provided in this section.
"(3) A motion to initiate a proceeding under this
section shall be filed in the proceeding to which the
contempt is related, if there is a related
(Emphasis added.) Here, defendant's child-support
obligations were imposed in Case No. 07-0806-D3, but the
state initiated the contempt proceeding under a new case
number. Defendant objected to that process, but the court
noted that "statewide they're not brought in the
same proceeding, it's a brand new filing
state concedes that its motion "was not filed in
compliance" with ORS 33.055(3) (2015) because it was not
[287 Or.App. 227] filed in "the proceeding to which the
contempt is related." We agree and accept the
also contends that the court plainly erred by imposing a
punitive contempt sanction (a determinate term of probation)
in a remedial contempt proceeding. See State v.
Austin.276 Or.App. 648, 650-51, 369 P.3d 100 (2016)
(noting that a determinative term of probation is punitive,
not remedial); cf. ORS 33.105(1)(d) (authorizing
probation as a remedial sanction for contempt). The state
concedes that the court plainly erred by imposing a punitive
sanction because the court lacked the authority to do so.
See Altenhofenand Vanden-Busch, 271
Or.App. 57, 62, 349 P.3d 655, rev den,358 Or. 449
(2015) (trial court committed plain error by imposing
punitive sanction in a remedial contempt proceeding);
Miller and Miller,204 Or.App. 82, 84-85, 129 P.3d
211 (2006) (same). For reasons similar to those expressed in
Altenhofen, we conclude that it is appropriate to
exercise our discretion to ...