Hiller v. Hiller

SALTER, Justice

#28294-aff in pt, rev in pt & rem-MES APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT MOODY COUNTY, SOUTH DAKOTA THE HONORABLE VINCENT A. FOLEY Retired Judge STACY F. KOOISTRA
SHARLA B. SVENNES of
Myers Billion, LLP
Sioux Falls, South Dakota Attorneys for plaintiff
and appellee. KENNETH M. TSCHETTER of
Tschetter & Adams Law Office, P.C.
Sioux Falls, South Dakota Attorneys for defendant
and appellant. SALTER, Justice [¶1.] After finding James Hiller in contempt for violating the provisions of a visitation order, the circuit court ordered James to pay attorney fees incurred by his former spouse, Jennifer Hiller. In an ensuing proceeding to change custody, the court ordered James to pay additional attorney fees to Jennifer along with expert witness fees. James appeals both orders. We affirm in part, reverse in part, and remand.

Facts and Procedural History

[¶2.] James and Jennifer were divorced in 2013 following a court trial. One area of evidence developed during the trial concerned Jennifer's relationship with Wayne Lloyd, a family friend who was also a registered sex offender because of his 1994 conviction for raping a 15-year-old girl. The court's original custody determination granted the parties joint legal and physical custody of their two minor children, S.H. and T.H. However, the court required the presence of another adult whenever Lloyd was around the children. [¶3.] At some point after the divorce, Jennifer began dating Lloyd, and in November of 2013, she filed a motion to lift the supervision requirement. At the hearing, James testified that S.H. was uncomfortable being around Lloyd. The court found Lloyd posed a risk to S.H. because she was similar in age to Lloyd's rape victim and could be susceptible to manipulation. The court refused to lift the [¶15.] The circuit court denied Jennifer's motion to modify custody. Instead, it implemented an immersion plan under which S.H. would live with Jennifer for six weeks without Lloyd present and without visitation with James. The court further ordered that after the immersion period, S.H. would have the autonomy to choose with which parent to live. In the court's frank assessment, "Unless and until [S.H.] accepts Mr. Lloyd, she will likely spend most of her nights at [James's] residence." [¶16.] Jennifer subsequently moved for an award of attorney fees related to the motion to change custody. She also sought an order requiring James to pay Dr. Hartmann's expert witness fees incurred in connection with the July hearing. James resisted, arguing, among other things, that he was unable to pay because his net worth consisted largely of illiquid assets, leaving him with a poor cash position. [¶17.] The court granted both of Jennifer's requests. It ordered James to pay Jennifer $11,493.48 in attorney fees pursuant to SDCL 15-17-38 and also held James solely responsible for Dr. Hartmann's expert witness fees of $4,364.54. [¶18.] James appeals and raises the following issues for review:

1. Whether the circuit court clearly erred in finding James in contempt.
2. Whether the circuit court abused its discretion in awarding attorney fees incurred in the contempt action.
3. Whether the circuit court abused its discretion in awarding Jennifer attorney fees and in ordering that James pay Dr. Hartmann's expert witness fees related to Jennifer's motion to change custody.

This Court decided an earlier appeal involving the parties, relating principally to the circuit court's equitable division of property. Hiller v. Hiller, 2015 S.D. 58, 866 N.W.2d 536.

The court lifted the restriction as to T.H., concluding Lloyd was not a danger to him. --------

Standard of Review

[¶19.] Matters of judicial discretion, such as an award of attorney fees or the court's remedy for contempt, are reviewed for an abuse of discretion. Brosnan v. Brosnan, 2013 S.D. 81, ¶ 12, 840 N.W.2d 240, 246 (attorney fees); Sazama v. State ex rel. Muilenberg, 2007 S.D. 17, ¶ 9, 729 N.W.2d 335, 340 (contempt). An abuse of discretion "is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary and unreasonable." Thurman v. CUNA Mut. Ins. Soc'y, 2013 S.D. 63, ¶ 11, 836 N.W.2d 611, 616. Findings of fact are reviewed for clear error and will only be overturned "when we are definitely and firmly convinced a mistake has been made." Lakota Cmty. Homes, Inc. v. Randall, 2004 S.D. 16, ¶ 9, 675 N.W.2d 437, 440.

Analysis and Decision

1. Whether the circuit court clearly erred in finding James in contempt. [¶20.] A court's common law contempt power includes two distinct varieties—civil contempt and criminal contempt. Sazama, 2007 S.D. 17, ¶ 23, 729 N.W.2d at 344. The civil contempt power is designed "to force a party 'to comply with orders and decrees issued by a court in a civil action[.]'" Id. (quoting Wold Family Farms, Inc. v. Heartland Organic Foods, Inc., 2003 S.D. 45, ¶ 14, 661 N.W.2d 719, 723). For this reason, civil contempt is coercive in nature. "[I]t seeks to compel 'the person to act in accordance with the court's order,' rather than to punish for past conduct." Id. (quoting Wold Family Farms, 2003 S.D. 45, ¶ 14, 661 N.W.2d at 723). "The required elements for a finding of civil contempt are[:] (1) the existence of an order; (2) knowledge of the order; (3) ability to comply with the order; and (4) willful evidence." Id. From our review, James has not established the existence of clear error.

2. Whether the circuit court abused its discretion in awarding attorney fees incurred in the contempt action. [¶23.] Before we address the substance of James's argument, it is helpful to contrast criminal contempt from civil contempt. Unlike civil contempt, criminal contempt arises from conduct or acts committed in the court's presence "that serve to 'subvert, embarrass, or prevent the administration of justice.'" Sazama, 2007 S.D. 17, ¶ 24, 729 N.W.2d at 344 (quoting Wold Family Farms, 2003 S.D. 45, ¶ 14, 661 N.W.2d at 723). Following a determination of criminal contempt, a court may impose "sanctions that serve to punish the contemnor for a past transgression against the authority or dignity of the court." Id. (emphasis added). Both types of contempt can evoke stern responses from a circuit court, but because of the overarching premium upon compliance, a court's determination of civil contempt must also include an opportunity for a recalcitrant contemnor to purge himself of his contempt by obeying the underlying order. Id. ¶ 27, 729 N.W.2d at 345. [¶24.] Here, the circuit court's contempt order, neither in its original nor amended forms, directly connects the payment of attorney fees to compliance with the underlying visitation order. James was required to pay the attorney fees without regard to his prospective compliance. Though the court indicated in its amended contempt order that James could "purge" himself of his contempt by paying Jennifer's attorney fees, there is no direct coercive means to assure compliance with the December 2015 visitation order. For this reason, the court's order seems more punitive than coercive. [¶30.] Of course, an attorney fees award under SDCL 25-4A-5(2) must still be reasonable. In addition to our precedent that requires this determination, the text of SDCL 25-4A-5(2) limits an attorney fees award to "reasonable attorney's fees incurred as a result of the noncompliance[.]" In this case, the court was keenly aware of the complex and contentious nature of this case. It considered the "significant management of the communications[,]" the "deep history of the dispute[,]" the necessity for an ongoing review of the relationship, the "litigious nature of the parties" caused by James's behavior, and the "unique circumstances of this case on the legal issue of contempt." The court concluded that $4,082 was not excessive. From our review, the record supports the court's decision to exercise its discretion and sanction James $4,082 for his failure to comply with the terms of the visitation order. See SDCL 25-4A-5.

3. Whether the circuit court abused its discretion in awarding Jennifer's attorney fees and in ordering that James pay Dr. Hartmann's expert witness fees related to Jennifer's motion to change custody. [¶31.] Attorney fees may only be awarded by agreement of the parties or when specifically authorized by statute. Center of Life Church v. Nelson, 2018 S.D. 42, ¶ 34, 913 N.W.2d 105, 114. The parties agree that the circuit court had authority to award attorney fees under SDCL 15-17-38 and that the court was required to engage in the detailed two-step analysis before granting such an award. The parties have divergent views, however, as to the efficacy of the circuit court's findings in this regard. [¶32.] It is well settled that the circuit court must examine both the reasonableness and necessity of an award of attorney fees:

First, the court must determine what constitutes a reasonable attorney's fee. This requires consideration of[:] (1) the amount and value of the property involved, (2) the intricacy and importance of the litigation, (3) the labor and time involved, (4) the skill required to draw the pleadings and try the case, (5) the discovery utilized, (6) whether there were complicated legal problems, (7) the time required for the trial, and (8) whether briefs were required. Second, it must determine the necessity for such fee. That is, what portion of that fee, if any, should be allowed as costs to be paid by the opposing party. This requires consideration of the parties' relative worth, income, liquidity, and whether either party unreasonably increased the time spent on the case.

Streier
, 2016 S.D. 71, ¶ 25, 886 N.W.2d at 581 (quoting Nickles v. Nickles, 2015 S.D. 40, ¶ 34, 865 N.W.2d 142, 154). [¶33.] In its analysis of the reasonableness of the award, the court emphasized that James increased the time, labor, and skill necessary to prepare for the custody hearing, that he "complicated the nature of the legal problems," and that he "unreasonably increased the time spent" on the case. See id. (listing factors). James, however, contends the court clearly erred when it determined that his actions resulted in parental alienation that unnecessarily complicated the case. He further claims the court incorrectly "blamed" James for the visitation problems between S.H. and Jennifer. [¶34.] From our review, the record sufficiently supports the circuit court's findings. Dr. Hartmann and Moke offered differing opinions regarding the existence of parental alienation, and the court simply chose to believe Dr. Hartmann's testimony that James's actions alienated S.H. and severely damaged Jennifer's relationship with S.H. The court was also able to observe James's demeanor and weigh his testimony before concluding that James's conduct gathering and procuring evidence or bringing the matter to trial. Such expenditures include costs of . . . court appointed experts[.]" (Emphasis added.) "The prevailing party is the party in whose favor the decision or verdict is or should be rendered and judgment entered." Crisman v. Determan Chiropractic, Inc., 2004 S.D. 103, ¶ 23, 687 N.W.2d 507, 513. We review a court's determination that a party prevailed for an abuse of discretion. Id. [¶37.] Here, Jennifer filed a motion for full custody of S.H. with the view that Lloyd would be present in the same home. Dr. Hartmann testified in support of Jennifer's motion, and Moke testified in opposition. Although the court discounted Moke's testimony and favored Dr. Hartmann's suggestion of an immersion plan, the court ultimately denied Jennifer's motion to change custody. Under the court's immersion plan and its order, neither Jennifer nor James truly prevailed as partisans. Indeed, the court's order directed that upon conclusion of the immersion period, S.H. would make her own visitation decisions. Because Jennifer did not prevail, she was not entitled to recover Dr. Hartmann's fees under SDCL 15-17-37, and we need not address James's claim that Dr. Hartmann did not testify in her capacity as a court-appointed expert.

4. Appellate Attorney Fees. [¶38.] James and Jennifer separately request an award of appellate attorney fees. We decline to award fees to either party. [¶39.] Affirmed in part, reversed in part, and remanded. [¶40.] GILBERTSON, Chief Justice, and ZINTER, KERN, and JENSEN, Justices, concur.