#28294-aff in pt, rev in pt & rem-MES
2018 S.D. 74


                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                        ****


JENNIFER L. HILLER,                            Plaintiff and Appellee,

      v.

JAMES D. HILLER,                               Defendant and Appellant.


                                        ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE THIRD JUDICIAL CIRCUIT
                     MOODY COUNTY, SOUTH DAKOTA
                                        ****

                    THE HONORABLE VINCENT A. FOLEY
                             Retired Judge

                                        ****


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.

                                        ****


                                               CONSIDERED ON BRIEFS
                                               ON AUGUST 27, 2018
                                               OPINION FILED 10/24/18
#28294

SALTER, Justice

[¶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.

                            Facts and Procedural History

[¶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




1.      This Court decided an earlier appeal involving the parties, relating
        principally to the circuit court’s equitable division of property. Hiller v.
        Hiller, 2015 S.D. 58, 866 N.W.2d 536.

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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




2.      The court lifted the restriction as to T.H., concluding Lloyd was not a danger
        to him.
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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.


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[¶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,


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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.




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[¶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:

              1.    Whether the circuit court clearly erred in finding James in
                    contempt.

              2.    Whether the circuit court abused its discretion in awarding
                    attorney fees incurred in the contempt action.

              3.    Whether the circuit court abused its discretion in awarding
                    Jennifer attorney fees and in ordering that James pay Dr.
                    Hartmann’s expert witness fees related to Jennifer’s motion to
                    change custody.




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                                Standard of Review

[¶19.]       Matters of judicial discretion, such as an award of attorney fees or the

court’s remedy for contempt, are reviewed for an abuse of discretion. Brosnan v.

Brosnan, 2013 S.D. 81, ¶ 12, 840 N.W.2d 240, 246 (attorney fees); Sazama v. State

ex rel. Muilenberg, 2007 S.D. 17, ¶ 9, 729 N.W.2d 335, 340 (contempt). An abuse of

discretion “is a fundamental error of judgment, a choice outside the range of

permissible choices, a decision, which, on full consideration, is arbitrary and

unreasonable.” Thurman v. CUNA Mut. Ins. Soc’y, 2013 S.D. 63, ¶ 11, 836 N.W.2d

611, 616. Findings of fact are reviewed for clear error and will only be overturned

“when we are definitely and firmly convinced a mistake has been made.” Lakota

Cmty. Homes, Inc. v. Randall, 2004 S.D. 16, ¶ 9, 675 N.W.2d 437, 440.

                               Analysis and Decision

             1. Whether the circuit court clearly erred in finding James in contempt.

[¶20.]       A court’s common law contempt power includes two distinct varieties—

civil contempt and criminal contempt. Sazama, 2007 S.D. 17, ¶ 23, 729 N.W.2d

at 344. The civil contempt power is designed “to force a party ‘to comply with orders

and decrees issued by a court in a civil action[.]’” Id. (quoting Wold Family Farms,

Inc. v. Heartland Organic Foods, Inc., 2003 S.D. 45, ¶ 14, 661 N.W.2d 719, 723).

For this reason, civil contempt is coercive in nature. “[I]t seeks to compel ‘the

person to act in accordance with the court’s order,’ rather than to punish for past

conduct.” Id. (quoting Wold Family Farms, 2003 S.D. 45, ¶ 14, 661 N.W.2d at 723).

“The required elements for a finding of civil contempt are[:] (1) the existence of an

order; (2) knowledge of the order; (3) ability to comply with the order; and (4) willful


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or contumacious disobedience of the order.” Keller v. Keller, 2003 S.D. 36, ¶ 9,

660 N.W.2d 619, 622 (quoting Harksen v. Peska, 2001 S.D. 75, ¶ 12, 630 N.W.2d 98,

101).

[¶21.]       Here, James challenges the circuit court’s determination that he had

the ability to comply with the visitation order, arguing that S.H. was a strong-willed

teenager who unilaterally refused to attend visitation. Though James testified that

he was unable to physically force S.H. to attend visits when Lloyd was present, the

circuit court’s focus was less upon the actual act of transporting S.H. to her mother’s

home and more upon the parental effort necessary to prepare S.H. for the transition

plan James had already developed with Jennifer. In this regard, the circuit court

accepted Dr. Hartmann’s view that the brinkmanship associated with getting S.H.

to go to the visits may have been obviated had James effectively communicated the

plan to S.H., stressed his assent, and warned of consequences should she disobey.

The court also assessed James’s credibility, referring to him as a “passive/aggressive

liar.” In the court’s view, James was duplicitous and had the ability to comply with

the stipulated visitation order.

[¶22.]       Although James disagrees with the disposition of the facts by the

circuit court, our standard of review reflects both the primacy of the court’s fact-

finding role and our inclination to reverse only those findings that are clearly

erroneous. See McCollam v. Cahill, 2009 S.D. 34, ¶ 6, 766 N.W.2d 171, 174. In this

regard, “[t]he credibility of the witnesses, the weight to be accorded their testimony,

and the weight of the evidence must be determined by the circuit court and we give

due regard to the circuit court’s opportunity to observe the witnesses and the


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evidence.” Id. From our review, James has not established the existence of clear

error.

             2. Whether the circuit court abused its discretion in awarding attorney
                fees incurred in the contempt action.

[¶23.]       Before we address the substance of James’s argument, it is helpful to

contrast criminal contempt from civil contempt. Unlike civil contempt, criminal

contempt arises from conduct or acts committed in the court’s presence “that serve

to ‘subvert, embarrass, or prevent the administration of justice.’” Sazama,

2007 S.D. 17, ¶ 24, 729 N.W.2d at 344 (quoting Wold Family Farms, 2003 S.D. 45,

¶ 14, 661 N.W.2d at 723). Following a determination of criminal contempt, a court

may impose “sanctions that serve to punish the contemnor for a past transgression

against the authority or dignity of the court.” Id. (emphasis added). Both types of

contempt can evoke stern responses from a circuit court, but because of the

overarching premium upon compliance, a court’s determination of civil contempt

must also include an opportunity for a recalcitrant contemnor to purge himself of

his contempt by obeying the underlying order. Id. ¶ 27, 729 N.W.2d at 345.

[¶24.]       Here, the circuit court’s contempt order, neither in its original nor

amended forms, directly connects the payment of attorney fees to compliance with

the underlying visitation order. James was required to pay the attorney fees

without regard to his prospective compliance. Though the court indicated in its

amended contempt order that James could “purge” himself of his contempt by

paying Jennifer’s attorney fees, there is no direct coercive means to assure

compliance with the December 2015 visitation order. For this reason, the court’s

order seems more punitive than coercive.

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[¶25.]       Even so, we need not determine the precise nature of the court’s

contempt order or whether the common law of contempt authorized the attorney

fees award. Here, James and Jennifer acknowledge the circuit court possessed

statutory authority—unconnected to contempt principles—to award Jennifer

attorney fees in this custody proceeding, though they differ on which of two statutes

applies and the requisite corresponding analysis.

[¶26.]       One source of authority for an attorney fees award is SDCL 15-17-38,

which generally authorizes attorney fees in all cases of custody and visitation. An

attorney fees award under this statute requires a circuit court to undertake our

well-settled and detailed two-step analysis, which assesses the reasonableness and

necessity of an award. Streier v. Pike, 2016 S.D. 71, ¶ 25, 886 N.W.2d 573, 581. In

James’s view, an award of attorney fees under SDCL 15-17-38 is not sustainable

here because the court failed to perform the second step of the analysis—a

determination of the necessity of the attorney fees.

[¶27.]       For her part, Jennifer contends SDCL 25-4A-5 supports the court’s

award because it specifically authorizes sanctions, including attorney fees, when a

court finds a party has “willfully violated or willfully failed to comply with any

provision of a custody or visitation decree[.]” In her view, the circuit court was not

required to engage in a standard, multi-factored assessment relating to the

necessity of an award because it awarded attorney fees as a specific sanction to

punish James for his willful noncompliance with a visitation order. We agree.

[¶28.]       The text of SDCL 25-4A-5 allows the sanction of attorney fees for the

express purpose of “punish[ing] the offender[.]” Therefore, a circuit court’s findings


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relating to necessity are sufficient so long as they adequately support the

determination that the offending “party has willfully violated or willfully failed to

comply with any provisions of a custody or visitation decree[.]” See id. Even though

this discrete statutory authority to sanction or punish a party is, strictly speaking,

unconnected to the law of contempt, the elements of civil contempt feature

overlapping factual considerations. Here, for instance, the circuit court’s contempt

finding that James willfully “failed to comply” with the court’s visitation order

necessarily satisfies SDCL 25-4A-5’s statutory requirement of willful violation or

noncompliance with the provisions of a visitation order.

[¶29.]       Nevertheless, James asserts the attorney fees award is infirm because

the circuit court “did not give any analysis or give the required consideration to the

financial information of each party.” However, given the specific purpose

underlying the statutory authority of SDCL 25-4A-5, an inquiry into a party’s

relative worth, income, or liquidity is not required or relevant to this analysis. This

approach is consistent with other cases in which we have upheld an award of

attorney fees as a sanction imposed pursuant to statutes or rules. See, e.g., Coloni

v. Coloni, 2017 S.D. 66, ¶ 10, 903 N.W.2d 745, 748 (affirming attorney fees award

pursuant to SDCL 15-6-37(a)(4)(A) where circuit court’s findings “sufficiently

justified the imposed sanctions”); Hobart v. Ferebee, 2009 S.D. 101, ¶ 28, 776

N.W.2d 67, 75 (affirming attorney fees award for frivolous or malicious filing under

SDCL 15-17-51 where circuit court’s findings detailed conduct of party who

persisted in advancing legal arguments that had been previously rejected).




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[¶30.]       Of course, an attorney fees award under SDCL 25-4A-5(2) must still be

reasonable. In addition to our precedent that requires this determination, the text

of SDCL 25-4A-5(2) limits an attorney fees award to “reasonable attorney’s fees

incurred as a result of the noncompliance[.]” In this case, the court was keenly

aware of the complex and contentious nature of this case. It considered the

“significant management of the communications[,]” the “deep history of the

dispute[,]” the necessity for an ongoing review of the relationship, the “litigious

nature of the parties” caused by James’s behavior, and the “unique circumstances of

this case on the legal issue of contempt.” The court concluded that $4,082 was not

excessive. From our review, the record supports the court’s decision to exercise its

discretion and sanction James $4,082 for his failure to comply with the terms of the

visitation order. See SDCL 25-4A-5.

             3. Whether the circuit court abused its discretion in awarding
                Jennifer’s attorney fees and in ordering that James pay Dr.
                Hartmann’s expert witness fees related to Jennifer’s motion to
                change custody.

[¶31.]       Attorney fees may only be awarded by agreement of the parties or

when specifically authorized by statute. Center of Life Church v. Nelson, 2018 S.D.

42, ¶ 34, 913 N.W.2d 105, 114. The parties agree that the circuit court had

authority to award attorney fees under SDCL 15-17-38 and that the court was

required to engage in the detailed two-step analysis before granting such an award.

The parties have divergent views, however, as to the efficacy of the circuit court’s

findings in this regard.

[¶32.]       It is well settled that the circuit court must examine both the

reasonableness and necessity of an award of attorney fees:

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             First, the court must determine what constitutes a reasonable
             attorney’s fee. This requires consideration of[:] (1) the amount
             and value of the property involved, (2) the intricacy and
             importance of the litigation, (3) the labor and time involved, (4)
             the skill required to draw the pleadings and try the case, (5) the
             discovery utilized, (6) whether there were complicated legal
             problems, (7) the time required for the trial, and (8) whether
             briefs were required. Second, it must determine the necessity
             for such fee. That is, what portion of that fee, if any, should be
             allowed as costs to be paid by the opposing party. This requires
             consideration of the parties’ relative worth, income, liquidity,
             and whether either party unreasonably increased the time spent
             on the case.

Streier, 2016 S.D. 71, ¶ 25, 886 N.W.2d at 581 (quoting Nickles v. Nickles, 2015 S.D.

40, ¶ 34, 865 N.W.2d 142, 154).

[¶33.]       In its analysis of the reasonableness of the award, the court

emphasized that James increased the time, labor, and skill necessary to prepare for

the custody hearing, that he “complicated the nature of the legal problems,” and

that he “unreasonably increased the time spent” on the case. See id. (listing

factors). James, however, contends the court clearly erred when it determined that

his actions resulted in parental alienation that unnecessarily complicated the case.

He further claims the court incorrectly “blamed” James for the visitation problems

between S.H. and Jennifer.

[¶34.]       From our review, the record sufficiently supports the circuit court’s

findings. Dr. Hartmann and Moke offered differing opinions regarding the

existence of parental alienation, and the court simply chose to believe Dr.

Hartmann’s testimony that James’s actions alienated S.H. and severely damaged

Jennifer’s relationship with S.H. The court was also able to observe James’s

demeanor and weigh his testimony before concluding that James’s conduct


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necessitated an attorney fees award. It was within the province of the circuit court,

as the trier of fact, to accept one expert’s opinions over another’s and to judge the

credibility of the witnesses and the weight to be given to their testimony.

McCollam, 2009 S.D. 34, ¶ 6, 766 N.W.2d at 174.

[¶35.]       James also argues that the circuit court failed to adequately address

the second inquiry—the necessity of an award. He contends the circuit court

ignored evidence he claims indicated his inability to pay Jennifer’s attorney fees.

Although the circuit court did not enter detailed findings in this regard, the court

noted that the parties’ net worth, income, and liquidity were established by the

record. The broad and spare nature of this finding should be tempered with the fact

that the circuit court engaged in a discussion with James and his counsel on the

record about James’s financial situation. Under the circumstances, we cannot say

the circuit court failed to consider James’s net worth, income, and liquidity. See

Toft v. Toft, 2006 S.D. 91, ¶ 12, 723 N.W.2d 546, 550 (quoting Swanson &

Youngdale, Inc. v. Seagrave Corp., 561 F.2d 171, 173 (8th Cir. 1977) (noting that

specific findings are not required when “the record itself sufficiently informs the

court of the basis for the trial court’s decision on the material issue”)). In light of

this record, James has not established that the $11,493.48 attorney fees award was

an abuse of discretion.

[¶36.]       However, we conclude the circuit court abused its discretion when it

ordered James to pay Dr. Hartmann’s expert witness fees incurred in connection

with the July 8, 2016 hearing. Under SDCL 15-17-37, “[t]he prevailing party in a

civil action or special proceeding may recover expenditures necessarily incurred in


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gathering and procuring evidence or bringing the matter to trial. Such

expenditures include costs of . . . court appointed experts[.]” (Emphasis added.)

“The prevailing party is the party in whose favor the decision or verdict is or should

be rendered and judgment entered.” Crisman v. Determan Chiropractic, Inc.,

2004 S.D. 103, ¶ 23, 687 N.W.2d 507, 513. We review a court’s determination that a

party prevailed for an abuse of discretion. Id.

[¶37.]       Here, Jennifer filed a motion for full custody of S.H. with the view that

Lloyd would be present in the same home. Dr. Hartmann testified in support of

Jennifer’s motion, and Moke testified in opposition. Although the court discounted

Moke’s testimony and favored Dr. Hartmann’s suggestion of an immersion plan, the

court ultimately denied Jennifer’s motion to change custody. Under the court’s

immersion plan and its order, neither Jennifer nor James truly prevailed as

partisans. Indeed, the court’s order directed that upon conclusion of the immersion

period, S.H. would make her own visitation decisions. Because Jennifer did not

prevail, she was not entitled to recover Dr. Hartmann’s fees under SDCL 15-17-37,

and we need not address James’s claim that Dr. Hartmann did not testify in her

capacity as a court-appointed expert.

             4. Appellate Attorney Fees.

[¶38.]       James and Jennifer separately request an award of appellate attorney

fees. We decline to award fees to either party.

[¶39.]       Affirmed in part, reversed in part, and remanded.

[¶40.]       GILBERTSON, Chief Justice, and ZINTER, KERN, and JENSEN,

Justices, concur.


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