Metzger v. Metzger

958 N.W.2d 715, 2021 S.D. 23

• Court: South Dakota Supreme Court
• Decided: April 14, 2021
• Docket: 29221
• Status: Published

Opinion

#29221-r-PJD 2021 S.D. 23

IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA

**** JUSTIN D. METZGER, Plaintiff and Appellant,

v.

HOPE M. METZGER, Defendant.

****

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA

THE HONORABLE SCOTT P. MYREN Judge

THOMAS L. SANNES of Delaney, Nielsen & Sannes, P.C. Webster, South Dakota Attorneys for plaintiff and appellant.

HOPE M. METZGER Aberdeen, South Dakota Defendant.

CONSIDERED ON BRIEFS NOVEMBER 16, 2020 OPINION FILED 04/14/21 #29221

DEVANEY, Justice

[¶1.] Justin Metzger filed a motion for order to show cause why Hope

Metzger was not in contempt of the circuit court’s judgment and decree of divorce.

The circuit court found that Hope was not in contempt of court because she was not

personally served with the judgment. We reverse.

Factual and Procedural Background

[¶2.] In April 2018, Justin filed a divorce action against Hope. The divorce

trial was held in January 2019. During trial, the parties informed the circuit court

that they had reached a settlement agreement. With regard to child custody,

Justin’s attorney informed the court that the parties agreed to “share joint legal

custody of the parties’ minor child [C.M.].” His attorney also advised “[t]hat Hope

shall have primary physical custody subject to Justin’s reasonable and liberal

visitation rights in accordance with the South Dakota Parenting Guidelines with a

minimum modification that during the summer he will have ten weeks of

visitation.” The circuit court then questioned both parties about the agreement:

THE COURT: So the agreement is very extensive, but the attorneys took the time to outline it quite clearly. I believe I understand it, but I like to make sure that the parties do, also. Justin, you were able to hear the explanation of the agreement provided by the attorneys?

JUSTIN: Yes.

THE COURT: Is that the understanding that you have of what the agreement is?

JUSTIN: Yes, I do.

THE COURT: You’re willing to be bound by that agreement by court order?

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THE COURT: And, Hope, you were able to hear the agreement as outlined by the attorneys?

HOPE: Yes.

THE COURT: You understand the terms of the agreement?

THE COURT: Is that the agreement as you understood it?

THE COURT: You’re willing to be bound by that agreement by court order?

Following this exchange, the court then approved the agreement and orally ordered

that the agreement was effective immediately, emphasizing that signing the

agreement would simply “formalize” it and put it into writing.

[¶3.] On January 31, 2019, the parties signed a written property and

marital settlement agreement that conformed with the oral agreement. The circuit

court incorporated this agreement into its judgment and decree of divorce entered

on February 21, and Justin served the notice of entry of the judgment on Hope’s

attorney on February 25.

[¶4.] In May 2019, Justin picked up C.M. to begin his ten-week summer

visitation. In June, the parties mutually agreed that C.M. would spend a weekend

with Hope because C.M. missed her siblings. Hope and Justin set a time and place

where Hope would return C.M. to Justin to finish out the summer visitation;

however, contrary to their agreement, Hope refused to return C.M.

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[¶5.] After being denied further visitation, Justin filed a motion for an order

requiring Hope to show cause why she should not be held in contempt for refusing

to comply with the visitation provisions incorporated in the judgment and decree of

divorce. Justin served the motion on Hope personally after Hope’s attorney

indicated he would not represent her at the show cause proceeding.

[¶6.] The court held a hearing on the motion in August 2019. At the

hearing, Hope testified that her attorney never provided her with any

documentation throughout the case. She further claimed that she did not read any

part of the agreement she signed and that her attorney did not inform her about its

contents. Hope acknowledged that at the January 2019 hearing, she told the court

she understood the agreement and assented to be bound by it. The circuit court

nevertheless found that Hope was not in contempt of the judgment and decree of

divorce because she was not personally served with the judgment. The court ruled

that service on Hope’s attorney was insufficient to prove she had knowledge of the

judgment. Additionally, the court ruled that Hope could not be held in contempt of

the signed agreement between the parties because it was not an order of the court.

[¶7.] Justin filed a motion for reconsideration, providing the court with

additional legal authority relating to service of process. A hearing was held on the

motion in October 2019. At the hearing, Justin advised that the remedy he was

seeking was makeup time for the visitation he lost with C.M. the previous summer.

He also requested that the circuit court create a calendar detailing visitation for

every week, weekend, and holiday until C.M. reaches the age of majority. Justin

added that he did not want Hope to be fined or go to jail, and although he initially

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requested attorney fees in his contempt motion, he advised the court at the hearing

on his motion to reconsider that he was no longer requesting such fees. When the

circuit court asked Hope whether an order outlining the days and times that

visitation should be exchanged would be a good idea, she replied, “Yes, it would, but

this is the thing, I agreed to the ten weeks, but I was supposed to have [C.M.] every

other weekend.” (Emphasis added.)

[¶8.] At the end of the hearing, the circuit court found that Hope did not

comply with the order. However, the court ruled that Hope could not be found in

contempt because she was not given proper notice of the order. The court reasoned

that a party can only be found in contempt of court if the opponent establishes that

the party was personally served with, or had actual notice of, the order. The court

rejected Justin’s suggestion that the current rules of civil procedure allowing

electronic service on a party’s attorney changed these requirements. It then denied

Justin’s motion for reconsideration.

[¶9.] Justin appeals, arguing that the circuit court erred in finding that

Hope was not in contempt based upon the court’s determination that she did not

have actual notice of the order at issue. Hope, a pro se litigant, did not file an

appellate brief.

Analysis and Decision

1. Whether the issue raised on appeal is moot.

[¶10.] After Justin filed his notice of appeal of the court’s order denying his

contempt motion, Justin filed a motion to modify child support, visitation, and

custody. As a result of the motion, Justin obtained primary custody of C.M. Given

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that this change in custody essentially subsumes the remedy Justin was seeking on

the earlier contempt motion, this raises the issue whether this appeal is now moot. 1

[¶11.] “This Court renders opinions pertaining to actual controversies

affecting people’s rights.” Skjonsberg v. Menard, Inc., 2019 S.D. 6, ¶ 12, 922 N.W.2d

784, 787 (quoting Larson v. Krebs, 2017 S.D. 39, ¶ 13, 898 N.W.2d 10, 15). “[A]n

appeal will be dismissed as moot where, before the appellate decision, there has

been a change of circumstances or the occurrence of an event by which the actual

controversy ceases and it becomes impossible for the appellate court to grant

effectual relief.” Krebs, 2017 S.D. 39, ¶ 13, 898 N.W.2d at 15-16 (alteration in

original) (quoting Sullivan v. Sullivan, 2009 S.D. 27, ¶ 11, 764 N.W.2d 895, 899).

[¶12.] Although the relief Justin requested from the circuit court has now

effectively been granted, because of the contentious nature of the relationship

between these parties, a finding of contempt, in and of itself, may impact the court’s

resolution of likely future disputes between them. 2 Additionally, a party may be

entitled to attorney fees in a contempt action where the opposing party failed to

comply with the terms of a visitation order. See Hiller v. Hiller, 2018 S.D. 74, ¶ 30,

919 N.W.2d 548, 556-57. Even though such a request was initially made but later

1. Although neither party has raised this issue, it is one that the Court can raise and address sua sponte. See Zimmerman v. Bohr, 72 S.D. 78, 80, 30 N.W.2d 4, 4 (1947) (“[T]he continued existence of a controversy, pending the appeal, is essential to appellate jurisdiction.”); see also Wegner v. Siemers, 2018 S.D. 76, ¶ 4, 920 N.W.2d 54, 55 (“If a question of appellate jurisdiction exists, we are required to take notice of the question regardless of a party’s failure to raise it.”).

2. Justin’s counsel advised the circuit court at the hearing on the motion to reconsider that he “could file a motion for contempt every other weekend.” -5- #29221

withdrawn by Justin, the court maintains the discretion to determine the

appropriate sanction for a violation of its order. This could include any sanction the

court deems “appropriate to the facts and circumstances of the case.” See SDCL 25-

4A-5. For these reasons, we conclude this appeal is not moot.

2. Whether the circuit court clearly erred when it found that Hope was not in contempt of the order at issue.

[¶13.] “A court’s common law contempt power includes two distinct

varieties—civil contempt and criminal contempt.” Hiller, 2018 S.D. 74, ¶ 20, 919

N.W.2d at 554 (citation omitted). “[C]ivil contempt is coercive in nature.” Id. “The

purpose of the civil contempt power is to force a party to comply with orders and

decrees issued by a court in a civil action . . . .” Taylor v. Taylor, 2019 S.D. 27, ¶ 39,

928 N.W.2d 458, 470-71 (internal quotation marks omitted) (citation omitted). The

proceeding here was a civil contempt proceeding, requiring the following elements

to be established: “(1) the existence of an order; (2) knowledge of the order; (3)

ability to comply with the order; and (4) willful or contumacious disobedience of the

order.” Id. ¶ 39, 928 N.W.2d at 471 (citation omitted). “We review a trial court’s

findings as to contempt under a clearly erroneous standard.” Id. ¶ 15, 928 N.W.2d

at 465 (quoting Muenster v. Muenster, 2009 S.D. 23, ¶ 15, 764 N.W.2d 712, 717).

a. Existence of an order

[¶14.] The order at issue pertains to custody and visitation. The circuit court

orally approved the parties’ settlement agreement, and at a hearing on January 4,

2019, the court ordered them to comply with all the terms contained in the

agreement. The court then entered a written judgment and decree of divorce on

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February 22, 2019, which incorporated the terms and conditions of the agreement,

including the provision granting Justin ten weeks of summer visitation with the

minor child. Thus, the court correctly determined that the first element of contempt

was met.

b. Knowledge of the order

[¶15.] At the initial contempt hearing, the circuit court found the second

element requiring knowledge of the order was not met because Hope had not been

personally served with a copy of the judgment and decree of divorce. In so ruling,

the circuit court relied on this Court’s holding in Krueger v. Krueger, that:

Under the provisions of sections 330 and 562 Code of Civil Procedure, before appellant could be adjudged guilty of contempt of court in not obeying the mandates of such decree, it must be shown that a copy of such decree was personally served upon him before the commission of, or omission to do, those acts the commission or omission of which constitute the alleged contempt.

32 S.D. 470, 143 N.W. 368, 369 (1913) (citation omitted). The procedural rules in

effect in 1913 that this Court applied in Krueger pertained to the execution of civil

judgments and the service of notices, motions, or other filings in civil proceedings. 3

The current counterpart to section 562 is SDCL 15-6-5(b), which reads essentially

the same as it did in 1913. It states that the provisions of SDCL 15-6-5—which

relate to methods of service upon a party, including service on a party’s attorney

and service by mail—are not applicable “to service of a summons or other process or

3. The current counterpart to section 330 of the 1913 Code of Civil Procedure is SDCL 15-18-44, a statute addressing how officers who fail to perform their duties in enforcing writs or warrants of execution may be held in contempt. It is irrelevant to the contempt proceeding at issue here. -7- #29221

of any paper to bring a party into contempt.” Since Krueger, the Court has

interpreted this language in SDCL 15-6-5(b) to require personal service of an order

to show cause directing a party to show why the party should not be held in

contempt. See In re Gillespie, 397 N.W.2d 476, 477-78 (S.D. 1986); see also First

Nat’l Bank of Omaha v. Kolucek, 2008 S.D. 37, ¶ 8 n.3, 750 N.W.2d 472, 474 n.3.

However, this procedural rule does not speak to whether the person served with an

order to show cause must have been personally served with the underlying order

that the person has been alleged to have violated.

[¶16.] The circuit court did not cite, nor are we aware of, any current

procedural rule requiring a party to be personally served with a judgment, decree, or

other order of a court before the party can be held in contempt of such order. At the

later hearing on Justin’s motion to reconsider, the circuit court acknowledged that

personal service might not be the only way to satisfy the knowledge element.

Nevertheless, the circuit court maintained that Justin must prove Hope had “actual

notice of the order which was entered in order to be found in contempt.” (Emphasis

added.)

[¶17.] In this Court’s more recent decisions addressing what is required to

establish the knowledge element underlying a contempt finding, we have not

confined the requisite showing to proof of personal service of the judgment or order.

Rather, we have determined that personal service is unnecessary if “the accused

had actual knowledge of the contents of the judgment[.]” Thomerson v. Thomerson,

387 N.W.2d 509, 513 (S.D. 1986) (emphasis added) (citation omitted), abrogated on

other grounds by Sazama v. State ex rel. Muilenberg, 2007 S.D. 17, 729 N.W.2d 335.

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Here, instead of ascertaining whether Hope had actual knowledge of the contents of

the relevant order, the circuit court focused on whether she had been provided

notice of the order itself. This was an erroneous application of the law.

[¶18.] After a review of the record, it is clear that Hope had knowledge of the

contents of the relevant portions of the custody and visitation agreement

incorporated in the court’s written judgment and decree. First, it is undisputed that

Hope signed the parties’ written settlement agreement. “[O]ne who accepts a

written contract is conclusively presumed to know its contents . . . .” LPN Trust v.

Farrar Outdoor Advert., Inc., 1996 S.D. 97, ¶ 13, 552 N.W.2d 796, 799. Therefore,

Hope is presumed to know what was contained in the custody and visitation

provisions of this agreement. Second, when the parties reached a settlement,

counsel orally related its terms on the record at a hearing where both parties were

present. Relevant here, the terms related included the parties’ agreement as to

summer visitation. At this hearing, Hope acknowledged that she understood the

agreement and agreed to be bound by it, and the circuit court ordered both parties

to comply with its terms. In addition, it was apparent in Hope’s colloquy with the

circuit court at the contempt hearing that she knew Justin was entitled, by virtue of

the court’s order, to ten weeks of summer visitation. Therefore, the circuit court’s

finding that Hope did not have the requisite knowledge of the order at issue was

clearly erroneous.

c. Ability to comply and willful or contumacious disobedience

[¶19.] Because the circuit court found Justin had not established the second

element of contempt, the court did not make findings on the third and fourth

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elements, i.e., whether Hope had the ability to comply with the order and whether

she willfully or contumaciously disobeyed it. These elements must be considered by

the circuit court in the first instance on remand.

Conclusion

[¶20.] The circuit court clearly erred when it found that Hope did not have

knowledge of the contents of the judgment and decree of divorce. Therefore, we

reverse the court’s denial of Justin’s contempt motion and remand for further

proceedings consistent with this opinion.

[¶21.] JENSEN, Chief Justice, and KERN and SALTER, Justices, and

GILBERTSON, Retired Chief Justice, concur.

[¶22.] MYREN, Justice, not having been a member of the Court at the time

this action was submitted to the Court, did not participate.

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