                          STATE OF MICHIGAN

                           COURT OF APPEALS



GREGORY D. HANLEY,                                                  UNPUBLISHED
                                                                    October 26, 2017
               Plaintiff-Appellee,

v                                                                   No. 334400
                                                                    Oakland Circuit Court
                                                                    Family Division
PAMELA ANN SEYMOUR, formerly known as                               LC No. 2010-777620-DM
PAMELA HANLEY,

               Defendant-Appellant.


Before: BORRELLO, P.J., and MURPHY and RONAYNE KRAUSE, JJ.

PER CURIAM.

        Defendant appeals as of right the order finding her in criminal contempt for violation of a
protective order and the judgment of divorce. The trial court sentenced defendant to 93 days in
the county jail for contempt, imposed a fine of $7,500 pursuant to MCL 600.1715, and ordered
defendant to pay $15,000 in attorney fees to plaintiff and to also reimburse plaintiff $2,625 for
costs incurred. We affirm.

        “A trial court's findings in a contempt proceeding are reviewed for clear error and must
be affirmed on appeal if there is competent evidence to support them.” In re Contempt of Henry,
282 Mich App 656, 668; 765 NW2d 44 (2009). We are not permitted to weigh the evidence or
assess the credibility of the witnesses in determining whether there was competent evidence to
support the findings. Id. at 668-669. Clear error exists when the appellate court is left with the
firm and definite conviction that a mistake was made. Id. at 669. The ultimate decision to issue
a contempt order rests in the sound discretion of the trial court, which we review for an abuse of
discretion. Id. at 671. “If the trial court's decision results in an outcome within the range of
principled outcomes, it has not abused its discretion.” Id.

        Contempt of court encompasses willful acts, omissions, or statements that tend to impair
the authority or impede the functioning of a court. In re Contempt of Dudzinski, 257 Mich App
96, 108; 667 NW2d 68 (2003); In re Contempt of Robertson, 209 Mich App 433, 436; 531
NW2d 763 (1995). “Courts have inherent independent authority, as well as statutory authority,
to punish a person for contempt.” Robertson, 209 Mich App at 436. Pursuant to MCL
600.1701(g), a court is authorized to hold a party in contempt of court “for disobeying any lawful
order, decree, or process of the court.” “A party must obey an order entered by a court with

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proper jurisdiction, even if the order is clearly incorrect, or the party must face the risk of being
held in contempt and possibly being ordered to comply with the order at a later date.” Kirby v
Mich High Sch Athletic Ass’n, 459 Mich 23, 40; 585 NW2d 290 (1998). The main purpose of a
court’s contempt authority is to sustain the power and preserve the effectiveness of the court.
Dudzinski, 257 Mich App at 108. Punishment for contempt is proper when necessary to restore
order in the courtroom or to ensure respect for the judicial process. Id. at 108-109.

         Defendant’s actions constituted criminal contempt of court, as opposed to civil contempt.
See In re Contempt of Rochlin, 186 Mich App 639, 644-648; 465 NW2d 388 (1990) (criminal
contempt concerns punishment for a completed act of disobedience, so as to vindicate the
authority of the court, whereas civil contempt regards a coercive effort by a court to force a
noncompliant party to do an act that was commanded by the court). “When any contempt is
committed other than in the immediate view and presence of the court, the court may punish it . .
. after proof of the facts charged has been made by affidavit or other method and opportunity has
been given to defend.” MCL 600.1711(2); see also MCR 3.606(A). “[P]unishment for contempt
may be a fine of not more than $7,500.00, or imprisonment which, except in those cases where
the commitment is for the omission to perform an act or duty which is still within the power of
the person to perform, shall not exceed 93 days, or both, in the discretion of the court.” MCL
600.1715(1). “A party charged with criminal contempt is presumed innocent, enjoys the right
against self-incrimination, and the contempt must be proven beyond a reasonable doubt.” Porter
v Porter, 285 Mich App 450, 456; 776 NW2d 377 (2009).

       During the parties’ divorce litigation, a stipulated protective order was entered in April
2011, which mutually prohibited the parties from disclosing personal or business financial
information revealed and shared during the discovery process; the information could only be
used for purposes of the litigation. A judgment of divorce was entered in January 2012, which
provided:

               IT IS FURTHER ORDERED that neither party will have any deliberate
       contacts with the other party’s clients, adversaries, and business associates, and in
       all events neither party will disparage the other in any communication with the
       other’s clients, adversaries and business associates.[1]

        Shortly after the divorce action was concluded, defendant filed a request for investigation
with the Attorney Grievance Commission as to plaintiff, who is an attorney, alleging numerous
unlawful, unethical, or improper financial dealings by plaintiff, and apparently utilizing some
information previously gleaned through discovery. The grievance was dismissed. Moving
forward to 2015, plaintiff’s current wife was sued by her former stepson, David Sachs, in a
collections action, and plaintiff represented her in that suit. There was evidence presented that
after initiation of the suit, defendant mailed an envelope to the attorney representing Sachs. The
envelope contained a letter wherein defendant again accused plaintiff of numerous unlawful,


1
  We note that the divorce judgment was a consent judgment, agreed to by the parties.
Defendant does not argue that the protective order or the pertinent provision in the judgment of
divorce is unlawful or unenforceable.


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unethical, or improper financial dealings. Defendant also set forth many disparaging statements
about plaintiff’s current wife. The envelope additionally included a second document comprised
of 2011 emails, post entry of the protective order, sent by plaintiff’s current wife to plaintiff’s
office manager concerning a wire transfer of money. There was also evidence that defendant had
communicated the disparaging information to Sachs’s attorney in an initial phone call. Sachs’s
attorney testified to these matters in the contempt hearing, and a handwriting expert opined that
defendant was the author of the letter sent to the attorney. Plaintiff testified in the contempt
hearing that all of defendant’s claims and accusations were false and defamatory. Defendant did
not testify at the contempt hearing, invoking her Fifth Amendment privilege against self-
incrimination. It is defendant’s communications and correspondence to Sachs’s attorney that
formed the basis for the contempt action at issue. The trial court ruled that the communications
and correspondence violated the 2011 protective order and the above-quoted provision in the
judgment of divorce.

        On appeal, defendant makes a somewhat unusual sufficiency argument. She first
maintains that she had never previously been held in contempt for violating, nor had she
previously violated, the protective order and judgment of divorce. This argument is irrelevant to
the question whether there was sufficient evidence to support the contempt ruling that is the
subject of this appeal. The argument virtually constitutes an implicit concession that, on the
particular occasion involving the communications to Sachs’s attorney, defendant did violate the
protective order and divorce judgment. Defendant next argues that most of the disparaging
information communicated to Sachs’s attorney pertained to plaintiff’s current wife and not
plaintiff. However, she acknowledges that some of the information did concern plaintiff, which
is certainly accurate, and there is no dispute that this information was extremely disparaging of
plaintiff. Accordingly, this argument fails. Finally, with respect to defendant’s sufficiency
argument, she claims that there was no evidence that she was aware of the fact that plaintiff was
representing his current wife when defendant contacted Sachs’s attorney, which evidentiary
failure is critical because the divorce judgment prohibited deliberate contacts with the other
party’s adversaries and defendant had no knowledge that Sachs’s attorney was an adversary.
The evidence clearly showed that defendant was aware of the litigation against plaintiff’s current
wife and that she knew that Sachs’s attorney represented Sachs in suing plaintiff’s wife. Given
that defendant sent Sachs’s attorney damaging and disparaging information regarding both
plaintiff and plaintiff’s current wife, one could reasonably infer that defendant knew that plaintiff
was involved in the lawsuit as counsel for his wife. Furthermore, given that Sachs’s attorney
was litigating a claim against plaintiff’s current wife, the attorney could still reasonably be
characterized as an adversary of plaintiff because of the marital relationship, even if plaintiff had
not actually been representing his wife. In sum, there was sufficient evidence to support the
contempt ruling and the underlying finding that defendant willfully disobeyed lawful court
orders.

        Next, defendant argues that the trial court erred in imposing the maximum punishment
allowed by law, i.e., 93 days in jail, a $7,500 fine, and $15,000 in attorney fees, see MCL
600.1715(1); MCL 600.1721, considering that defendant had not previously violated the
protective order or judgment of divorce; the punishment was excessive. Defendant fails to
explain or set forth the legal predicate for her claim, such as cruel and unusual punishment or
disproportionality. Indeed, defendant provides no authority for the proposition that the
maximum punishment for contempt cannot be imposed for an initial act of contempt. Even

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assuming that defendant had never previously acted contemptuously, which plainly is not the
case, the contemptuous conduct for which she was punished was particularly egregious,
justifying the punishment imposed. “Imprisonment for criminal contempt is appropriate where a
defendant does something he was ordered not to do.” Dudzinski, 257 Mich App at 108.
Defendant also claims that the punishment was excessive because plaintiff did not suffer any
adverse consequences from defendant’s behavior. First, this argument ignores the defamatory
and damaging nature of defendant’s communications, let alone the fact that defendant’s
contemptuous conduct forced plaintiff to spend time and resources to address the conduct.
Regardless, as mentioned earlier, the main purpose of a court’s contempt authority is to sustain
the power and preserve the effectiveness of the court, along with ensuring respect for the judicial
process. Id. at 108-109. The punishment imposed in this case was thus appropriate even if
defendant did not suffer any adverse consequences. There was no error or abuse of discretion.

         Next, defendant contends that the award of $15,000 in attorney fees to plaintiff as a
sanction for the contempt constituted error, given that plaintiff had the burden of proof to
establish the existence and reasonableness of those fees and failed to do so. Defendant initially
and correctly acknowledges that a court is authorized to order the payment of attorney fees in a
contempt case so as to indemnify a party that has sustained a loss resulting from the
contemptuous conduct. See MCL 600.1721; MCR 3.206(C)(2)(b); Richards v Richards, 310
Mich App 683, 700-702; 874 NW2d 704 (2015); Taylor v Currie, 277 Mich App 85, 100; 743
NW2d 571 (2007). Plaintiff testified that his attorney in the contempt proceedings charged him a
$15,000 set or flat fee for the representation, and there was no evidence to the contrary. We
initially note that MCL 600.1721 authorizes the payment of attorney fees as punishment for
losses actually suffered. Taylor, 277 Mich App at 100. Moreover, at no time during the
contempt proceedings did defendant challenge the reasonableness of the $15,000 being requested
by plaintiff, nor did she request an evidentiary hearing on the matter. As this Court has stated,
“[o]bjection to the reasonableness of the amount of an award of attorney fees may not be raised
for the first time on appeal[,]” and “[a]ccordingly, this issue is not properly before us.” Jansen v
Jansen, 205 Mich App 169, 173; 517 NW2d 275 (1994). Reversal is unwarranted.

       Next, defendant argues that plaintiff had unclean hands, where he obtained the
contemptuous materials during mediation in the litigation between Sachs and plaintiff’s current
wife and then disclosed the materials in the contempt proceedings, thereby violating MCR
2.412(C). MCR 2.412(C) provides:

               Mediation communications are confidential. They are not subject to
       discovery, are not admissible in a proceeding, and may not be disclosed to anyone
       other than mediation participants except as provided in subrule (D).

       Simply put, defendant’s argument is a red herring. Plaintiff testified that the disparaging
communications received by Sachs’s attorney from defendant were not part of the mediation
proceedings. Rather, plaintiff was simply made aware of the communications at the conclusion
of the mediation in which he participated with Sachs’s attorney. And, Sachs’s attorney had
received the relevant telephone call and documents well before mediation was conducted; they
did not constitute mediation communications for purposes of MCR 2.412(C). Consequently,
there was no violation of MCR 2.412(C).


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         In her reply brief, defendant challenges the content of plaintiff’s appellate brief, asserting
that he includes information pertaining to other events that were not part of the record or not
relevant. Notably, defendant did not file a motion to strike plaintiff’s appellate brief premised on
its alleged nonconformity. See MCR 7.212(I). Additionally, the trial court had the authority to
take judicial notice of the entire record, which encompasses the divorce litigation and earlier
postjudgment matters. Snider v Dunn, 33 Mich App 619, 625; 190 NW2d 299 (1971).
Regardless, we have not relied on the objected to information in resolving this appeal.

     Affirmed. Having fully prevailed on appeal, plaintiff is awarded taxable costs under
MCR 7.219.


                                                               /s/ Stephen L. Borrello
                                                               /s/ William B. Murphy
                                                               /s/ Amy Ronayne Krause




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