Heimer v. Heimer

• Decision Date: 30 August 2021
• Docket Number: S-21-0033
• Parties: KATHRYN ANN HEIMER, Appellant (Plaintiff), v. MASON WILLIAM HEIMER, Appellee (Defendant).
• Court: Wyoming Supreme Court

2021 WY 97

KATHRYN ANN HEIMER, Appellant (Plaintiff), v. MASON WILLIAM HEIMER, Appellee (Defendant).

No. S-21-0033

Supreme Court of Wyoming

August 30, 2021

Appeal from the District Court of Laramie County The Honorable Steven K. Sharpe, Judge

Representing Appellant:

D Stephen Melchior, Melchior Law Firm, P.C., Cheyenne, Wyoming.

Representing Appellee:

Mason William Heimer, pro se.

Guardian ad Litem:

No appearance.

Before FOX, C.J., and DAVIS ^[*] , KAUTZ, BOOMGAARDEN, and GRAY, JJ.

FOX CHIEF JUSTICE.

[¶1] Kathryn (Mother) and Mason (Father) Heimer divorced in 2018. Mother filed a string of post-divorce motions in the district court, and this appeal concerns her latest two. At the hearing on Mother's fifth motion for order to show cause why Father should not be held in contempt, the district court refused to consider 180 pages of communications attached to Mother's reply brief, granted her motion in part, denied it in part, and awarded her $100 in attorney fees. Approximately five weeks later, Mother filed her sixth motion for order to show cause, raising again the issue of Father's allegedly harassing communications since their divorce. At that hearing, the district court limited Mother to evidence of Father's communications since the previous hearing. Based on the admissible documents, the district court found Father in contempt of court and awarded Mother attorney fees. Mother appealed the district court's denials of her fifth motion, the $100 attorney fee calculation, and the ruling at the hearing on the sixth motion restricting the evidence she could present. We affirm in part, reverse in part, and remand.

ISSUES

[¶2] Mother raises seven issues, which we condense and reorganize:

1. Was Mother denied due process when the district court refused to consider the attachments to Mother's reply brief at the hearing on her fifth motion?

2. Was Mother barred from relitigating Father's allegedly harassing communications that occurred prior to her fifth motion?

3. Did the district court err when it found Father was not in contempt for failing to timely pay his share of the children's medical bills?

4. Did the district court abuse its discretion by awarding Mother, without analysis, $100 for attorney fees related to Mother's fifth motion?

FACTS

[¶3] Mason William Heimer and Kathryn Ann Heimer were divorced in 2018 and have joint legal custody of their two minor children. Mother has primary physical custody. Mother has returned to court several times to enforce the divorce decree and related orders. She appeals the orders on her two latest motions.

[¶4] Mother's fifth motion to show cause requested Father be held in contempt for three reasons. Mother alleged Father disobeyed the divorce decree because he paid child support by direct wire transfer to Mother's bank account instead of through the State Disbursement Unit, thereby causing Mother to incur $10 per transfer in bank fees, which had accumulated to $210. She alleged Father untimely reimbursed her for his share of the children's medical expenses, and when he did so, he paid by direct wire transfer, thereby causing her to incur more bank fees. She alleged Father used the Talking Parents website^[1] to "harass [Mother] by falsely making and implying mean and nasty and derogatory and deprecatory statements to [Mother] and by injuring, maltreating and vilifying [Mother]." Her motion did not identify any specific communications she found harassing. Finally, she requested attorney fees.

[¶5] Father denied the allegations. On her harassment claim Father stated that Mother "failed to produce a single statement or scintilla of evidence regarding what communication allegedly violates the Order." Mother replied she had "significantly more than [a] 'single statement or scintilla of evidence'" of harassment, and she attached 180 pages of exhibits, 148 pages of which contained all of the parties' communications via the Talking Parents website over two years.

[¶6] On June 25, 2020, the district court held a thirty-minute hearing on the fifth motion. The district court issued an oral ruling finding Father in contempt for his failure to follow the clear language of the divorce decree that required him to pay child support through the State Disbursement Unit. The court ordered Father to pay Mother $210 for her bank fees and $100 for her attorney fees related to that claim. The district court did not find Father in contempt on the medical expenses issue, but reminded Father he needed to timely pay his share of the expenses in a manner that did not require Mother to incur bank fees.

[¶7] Mother's attorney discussed the harassing nature of Father's communications and suggested the court would find Father in contempt if it read through her exhibits. The court stated it had looked very carefully at Mother's motion to find specific allegations of Father's misconduct in violation of the supplemental divorce decree, and found only "some very broad language that '. . . Defendant is abusing the Talking Parents[] website by making mean and nasty, derogatory statements'" to Mother. The court characterized Mother's exhibits as "record dumping" and said, "I guess you're asking me to review and pull out of there the allegations which I believe violate the court's Supplemental Order. I'm not willing to do that." The district court explained, "[T]hat type of practice is inappropriate where attorneys attach e-mails to their pleadings which then I guess they want to become evidence in the case. I think that practice has to stop. There are rules which the attorneys are well aware of that apply to the filing of pleadings." The district court refused to consider Mother's attachments and denied her motion with respect to harassment. The court also addressed Father:

[J]ust a glance at those e-mails shows that your communications with Miss Heimer are completely inappropriate. And I would tell you, sir, that you are dancing way too close to the fire with this court by those exchanges and those comments.

If this matter is brought back before the court, if those types of exchanges occur going forward and I see derogatory e-mails that are directed to Miss Heimer, I will hold you in contempt for those. So that conduct has to stop, and it has to stop immediately.

[¶8] Mother's attorney then stated he believed they were having an "offer of proof hearing" and asked what rule he had violated by attaching lengthy exhibits to the pleading. The court responded:

It was not set today for an offer of proof of any kind. This is a hearing on the motion for an order to show cause. So it is determined by the Rules of Evidence and the Rules of Civil Procedure that apply to all such hearings.

So I don't know where you got the idea that it was just an offer of proof hearing. It's not. If you need two hours for a hearing in the future for testimony to be received and for foundation to be established so that evidence can be properly admitted under the Rules of Evidence which requires a foundation, authenticity, all of the things that go into offering e-mails, I'll certainly give you whatever time you think that you need. But I'm not going to take and look at e-mail attachments which are not evidence without them being introduced in a proper way in a proper evidentiary hearing.

Mother's counsel did not request a continuance, or ask to call Mother to testify about the exhibits. The district court denied the motion with respect to the inappropriate comments.

[¶9] Five weeks later, Mother requested a three-hour evidentiary hearing on her fifth motion. On the same day, she filed a motion to reconsider the $100 fee award, citing the fee shifting provision in the divorce decree, along with an "offer of proof" showing she had incurred $12, 266.01 in legal fees in connection with that motion.

[¶10] A few days later, Mother filed a new motion to show cause why Father should not be held in contempt. She alleged Father continued to harass her by making "mean and nasty and derogatory and deprecatory statements" via the Talking Parents website, and that he had further harassed her and invaded her privacy by sending a box of live hermit crabs to her home as a surprise birthday gift for one of the children. Mother also requested legal fees and costs related to her sixth motion. The district court issued an order requiring Father to appear for a hearing and an order setting an evidentiary hearing for the same date and time.

[¶11] At the hearing, Mother's counsel stated he believed they were present for an evidentiary hearing on Mother's fifth motion harassment claim. The district court explained that Mother's counsel had misunderstood; the court did not intend to revisit communications between the parties prior to the fifth motion or to reconsider its ruling. Mother's counsel accepted the ruling and presented only evidence of Father's conduct since the last hearing.

[¶12] Mother testified about Father's specific statements on the Talking Parents website and her attorney moved to admit her exhibit containing the entire span of communications on Talking Parents. The court admitted the communications that had taken place since the last hearing as substantive evidence and admitted the earlier communications for the limited purpose of establishing context and the effect on Mother.

[¶13] Mother testified about arriving home from a weekend away to find a smelly box of "half-dead" hermit crabs that had been sitting in the June sun. After hearing Father's testimony, the district court found Father knowingly harassed Mother: "Certainly you wouldn't send a monkey or a tarantula or worse yet a cat to somebody without talking to them about that and getting their okay."

[¶14] The district court found one of Father's statements "You're a...