Lew v. Lew
| Decision Date | 27 September 2019 |
| Docket Number | S-19-0036 |
| Citation | 449 P.3d 683 |
| Parties | Carline Adelle LEW, Appellant (Plaintiff), v. Frank W. LEW, Appellee (Defendant). |
| Court | Wyoming Supreme Court |
Representing Appellant: Michael Stulken, Stulken Law, PC, Gillette, Wyoming.
Representing Appellee: Elizabeth Greenwood and Inga L. Parsons, of Counsel, Greenwood Law, LLC, Pinedale, Wyoming.
Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
[¶1] In accordance with the Lews' 2007 divorce decree, Frank W. Lew (Father) agreed to establish college accounts in the amount of $50,000 for each of the parties' two children. Carline Adelle Lew (Mother) managed one account and Father managed the other. Mother brings this appeal to challenge an order requiring her to reimburse funds she removed from the account she managed. She argues that the district court abused its discretion in awarding damages in the amount of $50,000 without receiving evidence on the matter, and it erred in awarding post-judgment interest beginning in September 2007. She also argues Father is not a real party in interest. We conclude that the district court did not abuse its discretion when it ordered Mother to reimburse the account, and Mother waived the argument regarding the real party in interest. We reverse and remand on the award of post-judgment interest.
[¶2] We rephrase the issues:
[¶3] The parties divorced in 2007. Pursuant to their stipulated divorce decree, Father was to contribute $50,000 for college accounts for each of the parties' two children. The accounts were established in September 2007. The parties agreed that each parent would be the trustee of one account. Father was to manage SL's $50,000 account and Mother to manage JL's $50,000 account.
[¶4] Mother began withdrawing funds from JL's account leaving a zero balance as of June 30, 2010. The district court issued two orders addressing this problem—one in June 2011 and the other in December 2017. In June 2011, the district court entered a temporary order requiring Mother to reimburse the "education accounts to the level they should have been prior to any withdrawals ... and in accordance with the amounts reflected in the similar accounts maintained by" Father. Mother did not appeal the order, and she did not reimburse any funds to JL's account.
[¶5] In February 2017, Father filed a motion for order to show cause why Mother should not be held in contempt for failure to comply with the 2011 order. The district court did not hold an evidentiary hearing. Instead, the court ordered the parties to submit briefs on the "issue of judgment interest with regard to the monies owed" by Mother. In December 2017, the district court entered its second order on the issue, a "Judgment on Order to Show Cause." The court found Mother in contempt and required her to reimburse JL's account by paying Father $132,138.74 ($50,000 plus 10% interest calculated from September 2007). The court then ordered Father to "retain reimbursement for those amounts he has expended on J.L.'s education" and put any "remaining amounts" into an "education trust fund to be administered solely" by Father. The court qualified its decision:
The court's finding that the judgment was entered pursuant to Wyo. Stat. Ann. § 20-2-310(c) (child support enforcement) was the basis for assessment of post-judgment interest at a 10% rate from 2007. See Wyo. Stat. Ann. §§ 1-16-102(a) and 20-2-310(c). Mother appeals.
[¶6] In December 2017, the district court found Mother in contempt and ordered her to pay $50,000 plus interest (we address the interest infra at ¶¶ 15–21). Mother contends that this award was erroneous because the court never required Father to prove damages.
[¶7] Civil contempt requires proof of three elements: "1) an effective court order that required certain conduct by the alleged contemnor; 2) the contemnor had knowledge of the order; and 3) the alleged contemnor disobeyed the order." Greer v. Greer , 2017 WY 35, ¶ 29, 391 P.3d 1127, 1134 (Wyo. 2017) (quoting Shindell v. Shindell , 2014 WY 51, ¶ 10, 322 P.3d 1270, 1274 (Wyo. 2014) ). "Once those elements are proven, the burden shifts to the person charged with contempt to show he or she was unable to comply—i.e., that the failure to comply was not willful." Greer , ¶ 29, 391 P.3d at 1134. A court may "award damages as a form of compensatory contempt to redress contumacious acts if it has the evidence to establish the amount of damage." Id. ¶ 29, 391 P.3d at 1135 ; Walker v. Walker , 2013 WY 132, ¶ 39, 311 P.3d 170, 178 (Wyo. 2013).
[¶8] We will reverse "a lower court's ruling on an application for civil contempt" only upon a finding of "a serious procedural error, a violation of a principle of law, or a clear and grave abuse of discretion." Greer , ¶ 30, 391 P.3d at 1135 ; see also Womack v. Swan , 2018 WY 27, ¶ 29, 413 P.3d 127, 138 (Wyo. 2018) ; Roberts v. Locke , 2013 WY 73, ¶ 14, 304 P.3d 116, 120 (Wyo. 2013). We review a district court's factual findings with deference and will overturn them only upon a finding that they are clearly erroneous. Walters v. Walters , 2011 WY 41, ¶ 18, 249 P.3d 214, 227 (Wyo. 2011). "Factual findings are clearly erroneous when, although they have evidentiary support, we are left with the definite and firm conviction upon review of the entire evidence that the district court made a mistake." Id. A district court's conclusions of law are reviewed de novo. Id.
[¶9] Mother argues that the district court abused its discretion in finding damages in the amount of $50,000 when no evidentiary hearing was held requiring Father to prove damages. The record presented for our review consists only of portions of the record designated by the parties and Father's amended statement of evidence, which the district court accepted as the official statement in accordance with W.R.A.P. 3.03.1
[¶10] In a civil contempt matter, "a court may enter orders to compensate an aggrieved party for damage caused by a contemnor's refusal to comply with a court order." Meckem v. Carter , 2014 WY 52, ¶ 25, 323 P.3d 637, 645 (Wyo. 2014). "However, a compensatory civil contempt award must be based upon evidence of actual loss; otherwise, it will be considered speculative and arbitrary." Id. (citing Walters , ¶¶ 24–25, 249 P.3d at 229 ).
[¶11] Courts have examined compensatory civil contempt sanctions in divorce cases and have affirmed those awards when they are supported by the record. For example, in Mills v. Mills , the court upheld a civil contempt award to the husband resulting from the wife's violation of the parties' property settlement agreement when she improperly claimed one of the children as a dependent on her tax return. Mills v. Mills , 70 Va.App. 362, 827 S.E.2d 391, 398 (2019). The appellate court concluded that the lower court's $1,066 damage award to compensate the husband for inability to claim the child on his taxes was appropriate. Id. at 399. Likewise, in Bessolo v. Rosario , 966 N.E.2d 725, 732 (Ind. Ct. App. 2012), the appellate court affirmed a $2,500 compensatory damage award to Father where Mother was held in contempt for failing to dismiss a protective order which resulted in Father's spending $2,500 to have his record expunged.
[¶12] However, when the award is not supported by the record, it cannot stand. We considered a damages award for civil contempt in Walters , ¶¶ 24–25, 249 P.3d at 229–30. There, Mrs. Walters was found in civil contempt for her failure to comply with the terms of the parties' divorce decree. Id. ¶¶ 19–22, 249 P.3d at 227–29. One of her transgressions was that she had not returned the contents of the parties' safe to Mr. Walters, including Mr. Walters's coin collection and personal documents, as she was ordered. Id. ¶ 22, 249 P.3d at 228–29. The district court assessed damages in the amount of $10,000, "noting that it was ‘not calculated with great precision because the very nature of the acts ... are such as to make it impossible to calculate something resembling damages.’ " Id. ¶ 24, 249 P.3d at 229. The district court later explained that "[t]here really wasn't any formula" used to calculate the damages and declined the invitation by Mrs. Walters's counsel to hold a hearing on the value of the coins and personal documents that had not been returned to Mr. Walters. Id. Mrs. Walters appealed, arguing that the $10,000 damage award was speculative and arbitrary. We agreed and reversed the award. Id. ¶¶ 24–25, 249 P.3d at 229–30. Similarly, in Doyle v. Doyle , the trial court ordered Father to return the gold jewelry and a gold nugget to Mother and, if they were not returned, to pay Mother $1,000 per item. Doyle v. Doyle , 815 P.2d 366, 371–72 (Alaska 1991). Father appealed, and the Alaska Supreme Court held that where there was no "correlation between the aggrieved party's actual damages ... and the amount assessed as damages" the trial court abused its discretion by awarding civil contempt damages. Id. at 372.
[¶13] Here, the Rule 3.03 statement provides the following facts:
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