Frantz v. Frantz

• Decision Date: 15 March 2016
• Docket Number: No. ED 102647,ED 102647
• Citation: 488 S.W.3d 167
• Parties: Danelle M. Frantz, n/k/a Danelle M. Shipp, Appellant, v. David B. Frantz, Respondent.
• Court: Missouri Court of Appeals

488 S.W.3d 167

Danelle M. Frantz, n/k/a Danelle M. Shipp, Appellant,

v.David B. Frantz, Respondent.

No. ED 102647

Missouri Court of Appeals, Eastern District, DIVISION THREE .

Filed: March 15, 2016

Motion for Rehearing and/or Transfer to Supreme Court Denied April 26, 2016

Application for Transfer Denied May 24, 2016

For Appellant: Jonathan D. Marks, Four CityPlace Drive, Ste. 497, Creve Coeur, MO 63141.

For Respondent: Kathleen E. Shaul, 7710 Carondelet, Ste. 401, Clayton, MO 63105.

OPINION

James M. Dowd, Judge

Danelle M. Shipp (“Mother”) appeals the trial court's judgment that modified the final decree of divorce (“Final Decree”) between her and her former husband, David B. Frantz (“Father”), and found her in contempt for interfering with Father's exercise of his visitation rights with their minor son, C.F. (“Child”). In her several points on appeal, Mother claims that the trial court erred (1) by finding her in contempt and ordering her to reimburse Father for certain of his litigation travel expenses, attorney's fees, and losses on airfare (Points I, II, and VII ); (2) by awarding Father joint legal and physical custody of Child (Points III and IV ); (3) by allowing Father's parents to exercise his physical custody rights in his absence (Point V ); (4) by ordering that Mother pay 35% of Child's transportation expenses for his visits with Father (Point VI ); and (5) by failing to make certain changes to the visitation provisions of the Final Decree as requested in her counter-motion to modify (Point VIII ).

We summarily deny Mother's Points IV, V, VI, and VIII. On these claims, we find that an opinion reciting the detailed facts and restating the principles of law would have no precedential value. Pursuant to Rule 84.16(b), we have provided the parties with a memorandum, for their information only, setting forth the reasons for our rejection of those points on appeal.

However, Mother's remaining points on appeal require our consideration in this published opinion. We dismiss Mother's appeal of the trial court's contempt judgment because as an unexecuted judgment, it is interlocutory and unappealable. We affirm as to all remaining points.

Factual and Procedural Background

On June 15, 2009, the District Court of Collin County, Texas, entered the Final Decree dissolving the marriage of Mother and Father. The Final Decree appointed Mother “sole managing conservator” and Father “possessory conservator” of Child. Mother registered the Final Decree in the Circuit Court of St. Louis County, Missouri.

In early 2013, Father filed his motion seeking a family access order. Father alleged that Mother had interfered with his visitation rights under the Final Decree. He requested that the court assess against Mother his reasonable expenses incurred as a result, including his attorney's fees and litigation travel expenses. Father also filed a motion to modify the Final Decree in which he asked the court to award him joint legal and physical custody of Child. Father asserted that Mother's repeated violations of the decree constituted a substantial change in circumstances making it necessary to modify the decree to serve Child's best interests.

Subsequently, Father filed his proposed parenting plan requesting that Mother be ordered to pay half of the transportation expenses for Child's visits with Father. In addition, Father filed an application for a show cause order and a motion for judgment of contempt in which he alleged violations by Mother of his rights under the Final Decree and sought as relief his litigation travel costs, attorney's fees, and reimbursement for his losses on airfare resulting from Mother's conduct that Father alleged was contumacious.

The case proceeded to trial on these motions, and thereafter the trial court entered its judgment modifying the Final Decree and found Mother in contempt. The court ordered that Mother pay Father $3,300.00 for his losses on airfare resulting from her contumacious conduct, attorney's fees totaling $7,500.00, and litigation travel expenses of $2,728.73. This appeal follows.

Standard of Review

In a court-tried case, we affirm the judgment below if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. In the Matter of S.J.M., 453 S.W.3d 340, 342 (Mo.App.E.D. 2015) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976) ). We view the evidence in the light most favorable to the trial court's judgment, disregarding all contrary inferences and evidence. Id. at 342–43 (citing Woods ex rel. Woods v. Cory, 192 S.W.3d 450, 458 (Mo.App.S.D. 2006) ).

We note also that an appellant faces a heavy burden to overturn the trial court's decision relating to an award of child custody. Keel v. Keel, 439 S.W.3d 866, 875 (Mo.App.E.D. 2014) (citing Lindsey v. Lindsey, 336 S.W.3d 487, 494 (Mo.App.E.D. 2011) ), In reviewing a custody award, we presume the trial court considered all the evidence and made its award in the best interests of the child “because of the trial court's unique position for determining credibility, sincerity, character and other intangibles of witnesses that might not be completely revealed by the record.” Id. (citing Lalumondiere v. Lalumondiere, 293 S.W.3d 110, 116 (Mo.App.E.D. 2009) ). We make this presumption also because the trial court has “an affirmative duty to determine what is in the [child's] best interests.” Id. (citing Lindsey, 336 S.W.3d at 494 ). “We therefore accord a trial court's determination regarding child custody greater deference than in other cases.” Id. (citing Flathers v. Flathers, 948 S.W.2d 463, 471 (Mo.App.W.D. 1997) ).

We will not disturb a trial court's custody determination unless we are firmly convinced that the welfare of the child requires some other disposition. Id.

Points I, II, and VII

In Points I and II, Mother claims the trial court abused its discretion in finding her in contempt for interfering with Father's visitation rights, and erred in ordering that she reimburse Father for his litigation travel expenses, attorney's fees, and losses on airfare resulting from her interference with visitation. Because Father has not yet executed on the trial court's contempt judgment, it is interlocutory and unappealable. Thus, we dismiss Mother's appeal as to the propriety of the contempt finding and the related order that Mother reimburse Father for his losses on airfare. However, the trial court's orders that Mother reimburse Father for his attorney's fees and litigation travel expenses are independently appealable, and we find that the court did not err in ordering such relief. First, in ordering such reimbursement the court did not, as Mother argues in Point VII, go beyond the scope of the pleadings. And second, awarding Father attorney's fees and litigation travel expenses was entirely proper here because Father prevailed on the issue of modification and the court found that Mother acted contumaciously to interfere with Father's visitation rights.

The Contempt Judgment

Like other judgments, a civil contempt judgment is appealable only if it is final. See In re Marriage of Crow & Gilmore, 103 S.W.3d 778, 780 (Mo.banc 2003) ; see also section 512.020.5¹ . If a judgment of contempt is not final, we lack jurisdiction to review it and must dismiss any appeal disputing its propriety. Id. (citing City of St. Louis v. Hughes, 950 S.W.2d 850, 852 (Mo.banc 1997) ). For purposes of appeal, a civil contempt order is not final until “enforced.” Id. at 781 ; see also Bailey v. Amo n , 941 S.W.2d 657, 658 (Mo.App.E.D. 1997) (“An order finding a party in contempt is interlocutory in nature and not appealable until it has been enforced”). When enforcement occurs depends on the remedy. In re Marriage of Crow & Gilmore, 103 S.W.3d at 781. When the remedy is a fine, the contempt order is “enforced” when the party who moved for contempt executes on the fine. Id. (citing Union Hill Homes Ass'n, Inc. v. RET Development Corp., 83 S.W.3d 87, 92 (Mo.App.W.D. 2002) ). Here, Father has not executed on the fine levied against Mother to reimburse him for the losses on airfare he sustained resulting from Mother's interference with his visitation with Child. Thus, the contempt order has not been enforced and remains interlocutory and unappealable until Father executes on the fine.

Mother argues that because the remedy of a flat $3,300 fine does not coerce her to comply with the trial court's contempt order, it lacks an enforcement provision and is either enforced when entered—and thus is appealable—or is an irregular and void order that must be vacated. We disagree.

Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained. United States v. United Mine Workers of Am., 330 U.S. 258, 303–04, 67 S.Ct. 677, 91 L.Ed. 884 (1947) ; see also Odom v. Langston, 358 Mo. 241, 213 S.W.2d 948, 951–52 (1948) (“A proceeding for civil contempt has as its object remedial punishment by way of a coercive imprisonment, or by a compensatory fine, payable to the complainant,”) (emphasis added); K. Khan, Inc. v. Wortham, 983 S.W.2d 539, 541 (Mo.App.E.D. 1998) (“A court may levy a compensatory fine against the violator payable to the plaintiff.”). Because of the discretion normally accorded to a trial court in issuing and fashioning contempt orders (see International Motor Co., Inc. v. Boghosian Motor Co ., 870 S.W.2d 843, 847 (Mo.App.E.D. 1993) ), fines for civil contempt need not be limited to per diem fines that expire upon compliance with the order, but may be compensatory. In re Marriage of Hunt, 933 S.W.2d 437, 448–49 (Mo.App.S.D. 1996) (citing North Dakota ex rel. Young v. Clavin, 715 S.W.2d 25, 26 (Mo.App.W.D. 1986) ). And although compensatory fines for civil contempt must be related to the actual damages suffered by the injured party, Hun...