Judy L. CHARNEY, Plaintiff-Respondent, v. Dennis M. CHARNEY, Defendant-Appellant.
No. 42165-2014.
Supreme Court of Idaho, Boise, June 2015 Term.
June 23, 2015.
356 P.3d 355
James A. Bevis, Bevis, Thiry & Schindele P.A., Boise, argued for respondent.
EISMANN, Justice.
This is an appeal out of Ada County from the award of attorney fees in a contempt proceeding which was dismissed without prejudice at the request of the party who initiated the proceeding. We affirm the award of attorney fees and award attorney fees on appeal.
I.
Factual Background.
On March 21, 2012, Judy L. Charney (Judy) and Dennis M. Charney (Dennis) were divorced. On May 11, 2012, Dennis commеnced contempt proceedings against Judy alleging four counts of contempt for allegedly violating provisions of the property settlement agreement, which was incorporated into the judgment. On June 8, 2012, Dennis filed an amended motion to add a fifth count for contempt. Judy denied the allegations of contempt, and the matter was set for an evidentiary hearing to commence on April 11, 2013.
On March 28, 2013, Dennis filed a motion to dismiss the contempt proceedings, which was hеard on April 9, 2013. The magistrate court asked Judy‘s attorney whether there was any objection to the motion, and he stated that there was not, but it should be dismissed with prejudice. The court stated that the dismissal would be without prejudice unless the parties agreed that it was with prejudice. Dennis‘s attorney stated that he did not anticipate the contempt proceedings being refiled, but did not have the authority to agree to a dismissal with prejudice. The court then stated that the dismissal would be without prejudice. The court entered an order dismissing the contempt proceedings the following day.
On April 17, 2013, Judy filed a motion seeking an award of attorney fees and costs. She sought an award of attorney fees pursuant to
Dennis appealed to the district court, challenging the award of attorney fees. After briefing and argument, the district court on April 14, 2014, entered a decision on appeal affirming the magistrate court‘s award of attorney fees. On May 27, 2014, Dennis appealed that affirmance to this Court.
While still before the district court Judy had requested an award of attorney fees on appeal, to which Dennis objected. After argument, the district court entered an order awarding Judy attorney fees on appeal in the sum of $9,297.50.
On June 25, 2014, Dennis filed a motion for reconsideration. That motion was heard on September 3, 2014, by the Hon. Gerald F. Schroeder, Senior District Judge. On September 4, 2014, the district court entered an order denying the motion for reconsideration.
II.
Did the District Court Err in Affirming the Magistrate Court‘s Award of Attorney Fees Pursuant to Idaho Code section 7-610 ?
The magistrate court awarded Judy attorney fees pursuant to
In any contempt proceeding, the court may award the prevailing party costs and reasonable attorney fees under
Idaho Code § 7-610 , regardless of whether the court imposes a civil sanction, a criminal sanction, or no sanction. The procedure for awarding such costs and fees shall be as provided inRule 54(e) of the Idaho Rules of Civil Procedure , except that the determination of the prevailing party shаll be based upon who prevailed in the contempt proceeding rather than in the civil action as a whole.
In making a determination of whether a trial court abused its discretion, this Court considers: (1) whether the trial court correctly perceived the issue as one of discretion; (2) whether the trial court acted within the boundaries of this discretion and consistent with the legal standards applicable to the specific choices available to it; and (3) whether the trial court reached its decision by an exercise of reason. Rockefeller v. Grabow, 139 Idaho 538, 545, 82 P.3d 450, 457 (2003). Dennis argues that the district court erred in holding that the magistrate court did not abuse its discretion in making an award of attorney fees for several reasons.
First, Dennis argues that the magistrate court did not act consistent with the applicable legal standards because, as a matter of law, Judy cannot be the prevаiling party where the contempt proceedings were dismissed without prejudice. This Court has not directly addressed whether a defendant can be a prevailing party in an action dismissed without prejudice, but that was certainly the basis of this Court‘s decision in Parkside Schools, Inc. v. Bronco Elite Arts & Athletics, LLC, 145 Idaho 176, 177 P.3d 390 (2008). Parkside Schools was leasing two building spaces from Bronco Elite under separate leases. Id. at 177, 177 P.3d at 391. Parkside Schools had an option to extend the term for one of the leases, but failed to timely exercise that option. Id. In February 2005, Bronco Elite gave notiсe that both leases would expire on July 1, 2005, and it leased the spaces to another tenant begin-ning
Parkside Schools filed a lawsuit and sought a temporary restraining order and preliminary injunction to retain possession of the leased space. Id. After an evidentiary hearing, the district court denied the requested relief because Parkside Schools had no basis for injunctive relief. Id.
Parkside Schools asked Bronco Elite to stipulate to a dismissal of the action with each party to bear its own court costs and attorney fees, but Bronco Elite refusеd, stating that it was considering seeking an award of attorney fees. Id. Six days later, Parkside Schools filed a motion to dismiss the case without prejudice and requested that each party bear its own court costs and attorney fees. Id. The motion did not include a request for oral argument, nor was it accompanied by a brief. Three days later, the district court dismissed the lawsuit without prejudice. Id. The dismissal order stated that each party would bear its own court costs and attorney fees. Id. Bronco Elite then appealed. Id.
This Court vacated the order of dismissal and remanded the case. Id. at 179, 177 P.3d at 393. This Court did not hold that the district court erred in dismissing the case without prejudice. Rather, we found that it erred in doing so without giving Bronco Elite an opportunity to request an award of attorney fees. We stated: “It is clear that Parkside failed to comply with applicable provisions of
A trial court has discretion to determine whether there is a prevailing party. Bream v. Benscoter, 139 Idaho 364, 368, 79 P.3d 723, 727 (2003). A court can determine that a party is a prevailing party even when the proceedings аgainst the party are dismissed without prejudice. That dismissal terminates the proceedings against that party.
Second, Dennis contends that the magistrate court had misperceived the law when it stated, “Mr. Charney could not bring these motions again because all of them involve allegations of criminal contempt that took place more than a year ago. So, the statute of limitation [sic] would prevent him from refiling them, if nothing else.” Dennis argues that the contempt proсeedings were seeking civil contempt sanctions and there is no statute of limitations for civil contempt, citing State v. Schorzman, 129 Idaho 313, 924 P.2d 214 (1996).
The allegations of contempt were based upon alleged violations of the parties’ property settlement agreement, which was merged into the divorce decree. For simplicity, we will refer to the allegations as being violations of the property settlement agreement.
Count One of the motion for contempt alleged that Judy had violated the property settlement agreement by failing to pay a landscaping debt that was her obligation. According to Dennis, the property settlement agreement required Judy “to pay all bills in her name.” This specific debt was apparently not explicitly listed as one she was obligated to pay. The creditor‘s invoice dated November 25, 2011, had Judy‘s name on it, and the amount of the debt was $1,472. Dennis stated that both parties were aware of the debt when they entered into thе property settlement agreement. Judy contended that the landscaping company had performed landscaping for them for years and her name was on the bill because she was the one who initially contacted the company years earlier. She stated that the majority of the unpaid balance of the bill was for trees that Dennis had ordered during the marriage, over her objection, in order to block the view of their neighbor‘s house. She said that he had made payments on the bill until the summer of 2011, and that prior to the parties entering into the property settlement agreement, her attorney sent his attorney a letter dated January 13, 2012, which stated, “Finally, I
Whether Dennis or Judy was to pay the bill was never resolved, nor was it resolved as to whether paying bills in one‘s name meant either bills incurred by that party or whatever bills the creditоr chose to list as owing by that party. For the purposes of this appeal, we need not decide whether an order that each party pay the bills in that party‘s name, where the specific bills are not identified or that term is not specifically defined, is definite enough to be punishable as criminal contempt if it is determined to have been violated. Int‘l Longshoremen‘s Ass‘n, Local 1291 v. Philadelphia Marine Trade Ass‘n, 389 U.S. 64, 76, 88 S.Ct. 201, 208, 19 L.Ed.2d 236, 245 (1967) (contempt cannot be based upon the violation of a decree that was not specific enough to inform those who were to obey what the court intended to require and what it intended to forbid).
Counts Two through Four of the motion for contempt involved the allegation that Judy violated the property settlement agreement that prohibited her from impairing Dennis‘s credit and required that if she did so she must take all reasonable and necessary steps to undo the damage. In June 1995, both parties signed an application for a credit card. Only Judy used the credit card during their marriage, and both parties averred that by the time of the divorce they had forgotten that Dennis was also obligated on the credit card. Judy continued using the credit card after the divorce. Dennis contracted to purchase a house that was to close in May 2012, and the unpaid balance of the credit card was reported on his credit report. The mortgage broker who was assisting Dennis told him that to obtain financing he neеded to close the account. On May 3, 2012, Dennis closed the account, and on the same date Judy paid the outstanding balance of $400 in full. The mortgage broker also stated that Judy needed to submit a letter stating that the payments on the credit card1 were made by her, not by Dennis. On May 4, 2012, Judy provided the requested letter.
Assuming that the provision of the property settlement agreement that prohibited Judy from impairing Dennis‘s credit rating was specific enough to inform Judy that her alleged cоnduct was prohibited, only a criminal contempt sanction could be imposed if she were found in contempt. “If the contempt involves doing what the court ordered the contemnor not to do, then under Idaho law the court can only impose a criminal contempt sanction—a determinate fine and/or a determinate jail sentence.” Camp v. East Fork Ditch Co., Ltd., 137 Idaho 850, 864-65, 55 P.3d 304, 318-19 (2002). Assuming that the provision of the property settlement agreement that required Judy to take any and all reasonable steps to reinstate Dennis‘s credit rating was specific enough to require the actions that she was asked to take, all of those actions were completed before Dennis filed his motion for contempt. The account was closed, the balance paid, and the requested letter provided. “A civil contempt sanction may be imposed [w]hen the contempt consists in the omission to perform an act which is yet in the power of the person to perform.” State Dept. of Health and Welfare v. Slane, 155 Idaho 274, 278, 311 P.3d 286, 290 (2013) (quoting
Count Five of the motion for contempt involved a Costco membership card. Judy had a Costco membership before the parties were married. The membership must be renewed annually, and in 2004 it was renewed under the name “Judy Charney, Law Office of Dennis Charney.” Judy usеd the card during the marriage, and she averred that to her knowledge it was never used by the law office. In March 2013, Judy had the annual dividend voucher issued in her name and used it to renew the membership for another year. Dennis alleged that Judy
The United States Supreme Court has held that “[t]he power to punish for contempt must have some limit in time.” Gompers v. United States, 233 U.S. 604, 612, 34 S.Ct. 693, 696, 58 L.Ed. 1115, 1120-21 (1914). Accord Pendergast v. United States, 317 U.S. 412, 418, 63 S.Ct. 268, 270-71, 87 L.Ed. 368, 372-73 (1943) (“Certainly the power to punish contempts in the ‘presence’ of the court, like the power to punish contempts for wilful violations of the court‘s decrees ‘must have some limit in time.‘“). In Gompers and Pendergast, both of which arose in federal court, the Supreme Court held applicable to criminal contempt a federal statute of limitations that applied to any person “prоsecuted, tried, or punished for any offense, not capital.” Gompers, 233 U.S. at 611, 34 S.Ct. at 695-96, 58 L.Ed. at 1120; Pendergast, 317 U.S. at 417, 63 S.Ct. at 270, 87 L.Ed. at 372. In Bloom v. State of Ill., 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), an appeal from a criminal contempt sanction imposed by a state court, the Supreme Court stated that “a defendant in criminal contempt proceedings is ... entitled to the protection of the statute of limitations,” id. at 205 n. 7, 88 S.Ct. at 1484 n. 7, 20 L.Ed.2d at 530-31 n. 7, but the Court did not address how that would apply if the state did not have a statute of limitations applicable to criminal contempt proceedings.
In Idaho, the crime of contempt is a misdemeanor,
Finally, Dennis argues that there was no final judgment, apparently meaning that there was no decision on the merits. In the Parkside Schools case, there was also no decision on the merits. We still remanded the case so that the defendant could request an award of attorney fees. Although
ogy,
The magistrate court did not abuse its discretion in awarding attorney fees to Judy pursuant to
III.
Did the District Court Err in Failing to Address the Magistrate Court‘s Alternative Basis for an Award of Attorney Fees?
The magistrate court awarded Judy attorney fees in the sum of $8,867.50 on two grounds—
IV.
Did the District Court Err in Awarding Judy Attorney Fees on Appeal?
Dennis contends that the district court erred in awarding Judy attorney fees on the appeal to it because she did not comply with
In the section of her brief on appeal titled “RESPONDENT‘S REQUEST FOR ATTORNEYS FEES ON APPEAL,” Judy requested an award of attorney fees under several statutes, but she did not request an award of attorney fees pursuant to
After the district court issued its decision on appeal, Judy filed a memorandum and affidavit for attorney fees, in which she again cited
Mr. Bevis is correct in that 7-610 was cited in the brief. It was cited in the conclusion. Very conclusory. There was absolutely no authority in which it was discussed in the attorney‘s fees section. It did not have any—really even any argument to it. Therе was a seven-page section of their attorney‘s fees briefing, and not one time was it mentioned. It wasn‘t supported in any way. It was cited—it was mentioned a lot of times in the context of what the trial court did.
But that‘s not the issue here today.
(Emphasis added.)
On an appeal from the district court sitting as an intermediate appellate court, this Court will not consider issues that were not raised before the district court. State v. Sheahan, 139 Idaho 267, 77 P.3d 956 (2003); Cooper v. Bd. of Prof‘l Discipline of the State Bd. of Med., 134 Idaho 449, 4 P.3d 561 (2000); Stonecipher v. Stonecipher, 131 Idaho 731, 963 P.2d 1168 (1998). The only objection raised in the district court was that Judy did
Assuming that Dennis also asserted that the request “was not supported in any way,” Judy‘s brief on appeal to the district court stated: “Since this appeal is from an award of attorneys fees and there was no abuse of discretion, attorneys fees should now be awarded on appeal for the same reasons granted below, I.C., § 7-610.... Merely second guessing the trial сourt is not a proper ground for appeal.” That statement certainly includes a citation to authority (
V.
Did the District Court Err in Denying Dennis‘s Motion for Reconsideration?
After District Judge McLaughlin made an award of attorney fees оn appeal to the district court, Dennis filed a motion for reconsideration. Senior District Judge Gerald Schroeder was assigned to hear that motion. After hearing argument on the motion for reconsideration, Judge Schroeder stated that he declined to reconsider the order made by Judge McLaughlin. Dennis argues that Judge Schroeder abused his discretion in failing to reconsider the order.
The appeal to the district court was pursuant to
VI.
Is Either Party Entitled to an Award of Attorney Fees on Appeal?
Both parties request an award of attorney fees on appeal pursuant to
VII.
Conclusion.
We affirm the decision of the district court and we award respondent costs and attorney fees on appeal.
Justices J. JONES, W. JONES, and Justices Pro Tem WALTERS and KIDWELL concur.
Notes
A judgment shall state the relief to which a party is entitled on one or more claims for relief in the action.... A judgment is final if either it has been certified as final pursuant to subsection (b)(1) of this rule or judgment has been entered on all claims for relief, except costs and fees, asserted by or against all parties in the action.
A “claim for relief” in an action is set forth in a pleading.