919 N.W.2d 548
S.D.2018Background
- James and Jennifer Hiller divorced in 2013 and shared custody of two children; the decree required another adult present when Wayne Lloyd (a registered sex offender) was around their daughter S.H.
- Jennifer later dated and moved in with Lloyd; disputes followed when S.H. refused visitation with Jennifer due to Lloyd’s presence.
- The court entered a December 2015 order (based on evaluator recommendations) with a transition plan: initial supervised visits without Lloyd, then visits at Jennifer’s home with Lloyd allowed; James was to transport S.H. and participate in therapy per the plan.
- Jennifer filed for contempt in late 2015/early 2016, alleging James failed to enforce visitation and alienated S.H.; the court found James in contempt based on credibility findings and expert testimony about parental alienation and ordered James to pay Jennifer $4,082 in attorney fees (as sanction).
- Jennifer separately moved to change custody; the court denied full custody but ordered a six-week “immersion” placement with Jennifer (without Lloyd) and then allowed S.H. to choose where to live; the court awarded Jennifer $11,493.48 in attorney fees under SDCL 15-17-38 and ordered James to pay Dr. Hartmann’s expert fees of $4,364.54.
- On appeal the Supreme Court affirmed the contempt finding and the $4,082 sanction under SDCL 25-4A-5, affirmed the $11,493.48 attorney-fee award under SDCL 15-17-38, but reversed the award of Dr. Hartmann’s expert fees because Jennifer was not the prevailing party on the custody change.
Issues
| Issue | Plaintiff's Argument (Jennifer) | Defendant's Argument (James) | Held |
|---|---|---|---|
| 1. Whether contempt finding was clearly erroneous | James willfully failed to enforce visitation and alienated S.H.; contempt finding justified | S.H. was an independent, strong-willed teen and James lacked ability to force visitation | Court: affirmed contempt—credibility findings and expert testimony support ability and willfulness |
| 2. Whether award of attorney fees for contempt was proper | Fees are proper sanction for willful violation under SDCL 25-4A-5 | Award improper because court did not do the SDCL 15-17-38 two-step analysis or consider James’s finances | Court: affirmed $4,082 fee as a permissible punitive sanction under SDCL 25-4A-5; inquiry into finances not required for that statute |
| 3. Whether attorney fees for custody change were appropriate | Fees necessary and reasonable under SDCL 15-17-38; James’s conduct increased litigation | Fees improper because court failed to adequately consider James’s liquidity/ability to pay | Court: affirmed $11,493.48 under 15-17-38 (court considered reasonableness and necessity); reversed order requiring James to pay Dr. Hartmann’s expert fees because Jennifer did not prevail |
Key Cases Cited
- Wold Family Farms, Inc. v. Heartland Organic Foods, Inc., 661 N.W.2d 719 (S.D. 2003) (distinguishes civil vs. criminal contempt; civil contempt is coercive)
- Sazama v. State ex rel. Muilenberg, 729 N.W.2d 335 (S.D. 2007) (discusses contempt types and purge requirement for civil contempt)
- Keller v. Keller, 660 N.W.2d 619 (S.D. 2003) (elements required for civil contempt)
- Streier v. Pike, 886 N.W.2d 573 (S.D. 2016) (two-step analysis for attorney fees under SDCL 15-17-38: reasonableness and necessity)
- McCollam v. Cahill, 766 N.W.2d 171 (S.D. 2009) (appellate deference to trial-court credibility and fact findings)
- Crisman v. Determan Chiropractic, Inc., 687 N.W.2d 507 (S.D. 2004) (definition of prevailing party for cost recovery)
- Toft v. Toft, 723 N.W.2d 546 (S.D. 2006) (record may suffice where it informs trial court’s basis for decision)