Metzger v. Metzger, #29221

• Court: Supreme Court of South Dakota
• Writing for the Court: DEVANEY, Justice
• Citation: 958 N.W.2d 715
• Parties: Justin D. METZGER, Plaintiff and Appellant, v. Hope M. METZGER, Defendant.
• Decision Date: 14 April 2021
• Docket Number: #29221

958 N.W.2d 715

Justin D. METZGER, Plaintiff and Appellant,
v.
Hope M. METZGER, Defendant.

#29221

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS NOVEMBER 16, 2020
OPINION FILED April 14, 2021

THOMAS L. SANNES of Delaney, Nielsen & Sannes, P.C., Webster, South Dakota, Attorneys for plaintiff and appellant.

HOPE M. METZGER, Aberdeen, South Dakota, Defendant.

DEVANEY, Justice

¶1.] Justin Metzger filed a motion for order to show cause why Hope Metzger was not in contempt of the circuit court's judgment and decree of divorce. The circuit court found that Hope was not in contempt of court because she was not personally served with the judgment. We reverse.

Factual and Procedural Background

[¶2.] In April 2018, Justin filed a divorce action against Hope. The divorce trial was held in January 2019. During trial, the parties informed the circuit court that they had reached a settlement agreement. With regard to child custody, Justin's attorney informed the court that the parties agreed to "share joint legal custody of the parties’ minor child [C.M.]." His attorney also advised "[t]hat Hope shall have primary physical custody subject to Justin's reasonable and liberal visitation rights in accordance with the South Dakota Parenting Guidelines with a minimum modification that during the summer he will have ten weeks of visitation." The circuit court then questioned both parties about the agreement:

THE COURT: So the agreement is very extensive, but the attorneys took the time to outline it quite clearly. I believe I understand it, but I like to make sure that the parties do, also. Justin, you were able to hear the explanation of the agreement provided by the attorneys?

JUSTIN: Yes.

THE COURT: Is that the understanding that you have of what the agreement is?

JUSTIN: Yes, I do.

THE COURT: You're willing to be bound by that agreement by court order?

JUSTIN: Yes.

THE COURT: And, Hope, you were able to hear the agreement as outlined by the attorneys?

HOPE: Yes.

THE COURT: You understand the terms of the agreement?

HOPE: Yes.

THE COURT: Is that the agreement as you understood it?

HOPE: Yes.

THE COURT: You're willing to be bound by that agreement by court order?

HOPE: Yes.

Following this exchange, the court then approved the agreement and orally ordered that the agreement was effective

[958 N.W.2d 717

immediately, emphasizing that signing the agreement would simply "formalize" it and put it into writing.

¶3.] On January 31, 2019, the parties signed a written property and marital settlement agreement that conformed with the oral agreement. The circuit court incorporated this agreement into its judgment and decree of divorce entered on February 21, and Justin served the notice of entry of the judgment on Hope's attorney on February 25.

[¶4.] In May 2019, Justin picked up C.M. to begin his ten-week summer visitation. In June, the parties mutually agreed that C.M. would spend a weekend with Hope because C.M. missed her siblings. Hope and Justin set a time and place where Hope would return C.M. to Justin to finish out the summer visitation; however, contrary to their agreement, Hope refused to return C.M.

[¶5.] After being denied further visitation, Justin filed a motion for an order requiring Hope to show cause why she should not be held in contempt for refusing to comply with the visitation provisions incorporated in the judgment and decree of divorce. Justin served the motion on Hope personally after Hope's attorney indicated he would not represent her at the show cause proceeding.

[¶6.] The court held a hearing on the motion in August 2019. At the hearing, Hope testified that her attorney never provided her with any documentation throughout the case. She further claimed that she did not read any part of the agreement she signed and that her attorney did not inform her about its contents. Hope acknowledged that at the January 2019 hearing, she told the court she understood the agreement and assented to be bound by it. The circuit court nevertheless found that Hope was not in contempt of the judgment and decree of divorce because she was not personally served with the judgment. The court ruled that service on Hope's attorney was insufficient to prove she had knowledge of the judgment. Additionally, the court ruled that Hope could not be held in contempt of the signed agreement between the parties because it was not an order of the court.

[¶7.] Justin filed a motion for reconsideration, providing the court with additional legal authority relating to service of process. A hearing was held on the motion in October 2019. At the hearing, Justin advised that the remedy he was seeking was makeup time for the visitation he lost with C.M. the previous summer. He also requested that the circuit court create a calendar detailing visitation for every week, weekend, and holiday until C.M. reaches the age of majority. Justin added that he did not want Hope to be fined or go to jail, and although he initially requested attorney fees in his contempt motion, he advised the court at the hearing on his motion to reconsider that he was no longer requesting such fees. When the circuit court asked Hope whether an order outlining the days and times that visitation should be exchanged would be a good idea, she replied, "Yes, it would, but this is the thing, I agreed to the ten weeks , but I was supposed to have [C.M.] every other weekend." (Emphasis added.)

[¶8.] At the end of the hearing, the circuit court found that Hope did not comply with the order. However, the court ruled that Hope could not be found in contempt because she was not given proper notice of the order. The court reasoned that a party can only be found in contempt of court if the opponent establishes that the party was personally served with, or had actual notice of, the order. The court rejected Justin's suggestion that the current rules of civil procedure allowing electronic service on a party's attorney

[958 N.W.2d 718

changed these requirements. It then denied Justin's motion for reconsideration.

¶9.] Justin appeals, arguing that the circuit court erred in finding that Hope was not in contempt based upon the court's determination that she did not have actual notice of the order at issue. Hope, a pro se litigant, did not file an appellate brief.

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