Debbie H. Silverwolf v. Kathryn E. Colton

2020 ME 94
CourtSupreme Judicial Court of Maine
DecidedJune 30, 2020
StatusPublished
Cited by1 cases

This text of 2020 ME 94 (Debbie H. Silverwolf v. Kathryn E. Colton) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Debbie H. Silverwolf v. Kathryn E. Colton, 2020 ME 94 (Me. 2020).

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2020 ME 94 Docket: Yor-19-412 Submitted On Briefs: May 4, 2020 Decided: June 30, 2020

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

DEBBIE H. SILVERWOLF

v.

KATHRYN E. COLTON et al.

HUMPHREY, J.

[¶1] Kathryn E. Colton appeals from judgment of the District Court

finding her in contempt and imposing a five-day jail sentence (Biddeford,

Sutton, J.) and ordering her incarceration (Foster, J.) in an action for recovery of

personal property. See 14 M.R.S. § 7071 (2020); M.R. Civ. P. 66(d). We vacate

the judgment in part.

I. BACKGROUND

[¶2] Colton breeds Samoyed dogs. Debbie H. Silverwolf was formerly a

tenant on Colton’s property. In February 2019, Colton transferred possession

of a certain Samoyed dog, named Kismet’s Green Mountain Flurrie (Flurrie), to

Christa Davis, another Samoyed breeder who lives in New Hampshire. In

March 2019, Silverwolf brought an action against Colton for recovery of 2

personal property, 14 M.R.S. § 7071, alleging that she is Flurrie’s lawful owner

and seeking the dog’s return.1

[¶3] After a hearing on April 5, 2019, the court (Tice, J.) entered judgment

in favor of Silverwolf and ordered Colton to return the dog. The court’s order

required Colton to bring Flurrie to Silverwolf at a neutral location on April 13,

2019. Colton did not appeal that judgment, but failed to return Flurrie.

Silverwolf then filed a motion for contempt. See 14 M.R.S. § 7071(7); M.R.

App. P. 66(d). Colton was served with a writ of possession and a contempt

subpoena in July 2019.

[¶4] On August 9, 2019, another judge (Sutton, J.) held a hearing on the

contempt motion at which both Silverwolf and Colton were present. After

hearing from both parties, the court found by clear and convincing evidence

that Colton had not returned Flurrie, in violation of the April 5, 2019, order, and

that she had the present ability to do so even though the dog was in Davis’s

possession. The court granted the contempt motion and from the bench

ordered Colton to serve five days in jail “consistent with an order that I will

write today,” but stayed execution of the sentence until August 23, 2019, when

1Although Richard Colton is a party to the underlying action, Silverwolf’s motion for contempt named only Kathryn Colton. Therefore, only Kathryn Colton was held in contempt and Richard Colton is not involved in this appeal. 3

the parties were to return to court to give Colton “an opportunity to show cause

. . . as to why [she] cannot or will not or can’t cooperate with Christa Davis for

the return of the dog.” The court then concluded by saying that Colton had a

“sufficient relationship with Ms. Davis” that she would “be able to collaborate

with [her]” to return the dog, and if Colton did not, the court stated, “you’ll have

the opportunity to show cause and if you don’t show cause, you’ll go to jail.”

That same day, the court issued its written order, which included the five-day

sentence and stay, and also provided that

[Colton] may purge herself of her contempt and avoid incarceration if she returns the [dog] . . . and if [Colton] cooperates fully with [Silverwolf] in any hearing set in New Hampshire on August 15, 2019 involving Christa Davis regarding return of the dog.

The written order made no mention of a show cause proceeding.2

[¶5] On August 23, 2019, a third judge (Foster, J.) found that Colton had

not returned Flurrie to Silverwolf and summarily issued an order of

incarceration pursuant to the contempt order.3 No “show cause” proceeding

was held.

2 Unlike the court’s verbal recitation that Colton would have the opportunity to “show cause” as to why she was unable to cooperate with Christa Davis for the dog’s return, the written order required Colton to cooperate with Silverwolf in a New Hampshire case dealing with the return of the dog—and to return the dog—to purge herself of the contempt. 3 The jail sentence was stayed pending appeal. 4

[¶6] Colton timely appealed from the court’s judgments finding her in

contempt and ordering her incarceration.4 M.R. App. P. 2B(c).

II. DISCUSSION

A. The Contempt Finding

[¶7] Colton argues that the court erred as a matter of law in finding her

in contempt and that the court’s factual findings are not supported by the

evidence.

[¶8] We review a finding of contempt for an abuse of discretion and the

underlying factual findings for clear error. Town of Kittery v. Dineen, 2017 ME

53, ¶ 17, 157 A.3d 788. A party seeking a contempt order “must establish by

clear and convincing evidence that the alleged contemnor failed or refused to

comply with a court order and presently has the ability to comply with that

order.” McMahon v. McMahon, 2019 ME 11, ¶ 9, 200 A.3d 789 (quotation marks

omitted). Even where a person subject to a court order is incapable of full

compliance, he or she “must comply to the fullest extent possible, regardless of

4Late in the appellate process, we received an order of the trial court, dated June 11, 2020, purporting to grant Silverwolf’s post-judgment motion for further findings, presumably pursuant to M.R. Civ. P. 52(b). The additional findings are not necessary to our consideration of this appeal. Further, although we need not decide whether the court’s order is valid, we observe that the post-judgment motion was filed approximately seven months after entry of the latest judgment subject to this appeal. M.R. Civ. P. 52(b); M.R. App. P. 2B(c)(2), 3(c)(2). 5

whether such efforts result in compliance in whole or in part.” Efstathiou v.

Efstathiou, 2009 ME 107, ¶ 13, 982 A.2d 339 (quotation marks omitted).

[¶9] There is no dispute that Colton failed to comply with the April 5,

2019, order requiring her to return Flurrie. On August 9, 2019, based on

sufficient competent evidence in the record, the court found that Colton and

Davis have been friends for more than twenty years, speak regularly on the

telephone, and visit each other in person. The court further found that Colton

made no effort to retrieve the dog from Davis, and rejected as not credible

Colton’s testimony that she was incapable of getting the dog from her friend.

The court concluded that Colton had the present ability to comply with the

order even though the dog was in Davis’s possession.

[¶10] It is well settled that “credibility determinations are left to the

sound judgment of the trier of fact.” Dyer v. Superintendent of Ins., 2013 ME 61,

¶ 12, 69 A.3d 416. The court’s weighing of the facts and competing testimony

was not outside the bounds of reasonableness, and we conclude that the court

did not err in finding Colton’s testimony incredible and did not abuse its

discretion in finding that Colton had the ability to comply with the April 5 order.

See Green Tree Servicing, LLC v. Cope, 2017 ME 68, ¶ 12, 158 A.3d 931

(articulating the abuse of discretion standard). 6

B. Due Process

[¶11] Colton next argues that the court abused its discretion by issuing

a written judgment that differed from its verbal pronouncement, and violated

her right to due process by ordering her to be incarcerated without an

opportunity to “show cause” as to whether she cooperated with Davis

regarding the return of Flurrie.

[¶12] We review questions of law, including due process challenges,

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Debbie H. Silverwolf v. Kathryn E. Colton
2020 ME 94 (Supreme Judicial Court of Maine, 2020)

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