Hiller v. Hiller
| Decision Date | 24 October 2018 |
| Docket Number | 28294 |
| Citation | 919 N.W.2d 548 |
| Parties | Jennifer L. HILLER, Plaintiff and Appellee, v. James D. HILLER, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
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.
[¶ 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.
[¶ 2.] James and Jennifer were divorced in 2013 following a court trial.1 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 supervision requirement as to S.H. and also denied James’s oral motion to modify the custody order to prohibit Lloyd from being present when S.H. stayed overnight with Jennifer.2
[¶ 4.] In March of 2015, Jennifer announced her plan to move in with Lloyd. S.H., who was then 15 years old, refused to attend visitation with her mother, and both parties sought court intervention. The circuit court ordered the parents to participate in a custody evaluation with Shanna Moke. The court also ordered an interim visitation schedule that allowed Jennifer two evenings per week with S.H. but required that Lloyd not be present. S.H. attended these visits with Jennifer. The court further ordered Jennifer and S.H. to attend family counseling.
[¶ 5.] When Jennifer ultimately moved in with Lloyd in August of 2015, S.H. continued her refusal to attend visits, prompting James to seek to modify visitation. However, the parents entered into a visitation agreement based upon Moke’s recommendations. The circuit court entered an order in December of 2015 consistent with the parties’ agreement. The order established a two-week transition period during which Lloyd would not be present for visits between Jennifer and S.H., followed by visits at Jennifer’s home where Lloyd could be present. The order required James to transport S.H. to Jennifer’s residence and continued the supervision condition for contact between S.H. and Lloyd. Finally, the order required Jennifer and S.H. to attend counseling with Dr. Gretchen Hartmann and imposed an additional obligation upon James to "become involved in therapy upon Ms. Hartmann’s direction."
[¶ 6.] S.H. attended the initial scheduled visitations with Jennifer. However, during a visit on November 19, 2015, S.H. attempted to leave because Lloyd had arrived. S.H. refused to attend future visits.
[¶ 7.] On December 28, 2015, Jennifer filed a motion asking the circuit court to find James in contempt. She alleged that James willfully disregarded the visitation order by refusing to discipline S.H. for not attending visits, by failing to bring S.H. to visits, and by alienating S.H. Jennifer also claimed James had indicated he would refuse to follow the visitation order because he disagreed with the provision allowing Lloyd to be present.
[¶ 8.] At a hearing on January 7, 2016, Dr. Hartmann testified that her counseling sessions with James, Jennifer, and S.H. led her to conclude James was alienating S.H. from Jennifer. Although James said he wanted S.H. to have a relationship with Jennifer, Dr. Hartmann noted he refused to impose any consequences on S.H. if she refused to visit Jennifer. Dr. Hartmann opined that James’s failure to assure these consequences resulted in parental alienation and subverted Jennifer’s authority. In Dr. Hartmann’s view, this type of parental alienation would severely damage the parent-child relationship. She further expressed her belief that the problem was not about Lloyd, but rather "the conflict and the disagreement between the parents." The circuit court did not rule on Jennifer’s contempt motion. Instead, it emphasized to James the need to comply with the December 2015 order regardless of S.H.’s view of Lloyd.
[¶ 9.] During a second hearing in February, Dr. Hartmann testified that James was still not attempting to enforce consequences for S.H.’s conduct. She opined that parental alienation was still present and that court-ordered family reunification therapy would not work until James started to facilitate visitation. James testified that he encouraged S.H. to see Jennifer but that he would not force her to go because she was afraid of Lloyd.
[¶10.] At the conclusion of the hearing, the circuit court found James in contempt. The court found that James was "a passive/aggressive liar in these proceedings[.]" In that regard, the court observed that James was "just happy to ... say [S.H.] should do something" but then not enforce the directive. The court considered James’s testimony "incredibly deceitful." It further assessed Dr. Hartmann’s testimony as "incredibly credible" and determined Jennifer’s testimony was "biased, yet credible."
[¶ 11.] The court entered written findings of fact consistent with its oral findings. The court found that James knew of the December 2015 order, that he had the ability to comply with it, and that he disregarded its provisions when "he failed to enforce the [c]ourt’s Order for the ordered January visitation." As a consequence, the court ordered James to prepare and deliver to the court a quitclaim deed for an undivided 1/64th interest in a parcel of his farmland. The court also directed James to pay Jennifer $4,082 in reasonable attorney fees incurred by "her having to bring this action."
[¶ 12.] James later asked the court to reconsider the sanction requiring him to execute and deliver a quitclaim deed for a portion of his farm property. However, James did not ask the court to reconsider its finding of contempt for failing to comply with the court’s order. In fact, he candidly stated, "With the benefit of hindsight, [James’s] non-compliance with the [c]ourt’s parenting time order should be somewhat mitigated, although certainly not excused." Jennifer did not object to the court removing the quitclaim deed provision.
[¶ 13.] In an amended judgment of contempt, the circuit court removed the requirement that James deliver a quitclaim deed. The amended order left intact the requirement that James pay Jennifer’s attorney fees incurred in bringing the contempt action and provided that James could "purge" himself of contempt by paying the attorney fees. However, there was no provision that allowed James a means to avoid paying the attorney fees by complying with the visitation order. In fact, the amended order did not include any provision to compel compliance with the underlying order. Nor did the court’s amended order cite statutory support for the award of fees.
[¶ 14.] At roughly the same time as the contempt proceedings, Jennifer filed a motion to change custody. The circuit court conducted an evidentiary hearing in July of 2016, at which Dr. Hartmann, Moke, and S.H.’s counselor testified. Moke and Dr. Hartmann presented conflicting expert opinions. Dr. Hartmann reiterated her opinions relating to what she described as ongoing parental alienation. Moke, however, disagreed and testified that she and Dr. Hartmann had erroneously focused on forcing S.H. to be around Lloyd. In Moke’s view, Lloyd should not be present for S.H.’s visits with Jennifer.
[¶ 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:
[¶ 19.] Matters of judicial discretion,...
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