L.G. v. I.R. ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,219
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
J.R., Minor Child by and Through Natural Guardian L.G.,
Petitioner,
and
L.G.,
Appellant,
v.
I.R.,
Appellee.
MEMORANDUM OPINION
Appeal from Seward District Court; LINDA P. GILMORE, judge. Opinion filed June 25, 2021.
Sentence vacated.
Razmi M. Tahirkheli, of Tahirkheli & Premer-Chavez Law Office, L.L.C., of Kansas City, for
appellant.
No appearance by appellee.
Before MALONE, P.J., ATCHESON, J., and BURGESS, S.J.
PER CURIAM: L.G. has appealed an order of the Seward County District Court
finding her in indirect civil contempt for violating a parenting plan applicable to her
daughter J.R. Although the record on appeal is less than entirely clear, the district court
appears to have imposed punitive sanctions of the sort appropriate for indirect criminal
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contempt rather than coercive sanctions that mark civil contempt. We, therefore, vacate
the sanctions against L.G. in the district court's contempt order.
The State brought this action against I.R., J.R.'s father, on behalf of L.G. and the
child to require that he financially support his daughter. I.R. acknowledged his paternity,
and the district court entered support and parenting orders. L.G. retained primary physical
custody of J.R. subject to designated parenting time for I.R.
L.G. and I.R. have since moved from Seward County to the Kansas City
metropolitan area, where they live separately. After visiting I.R. in February 2019, J.R.,
who was then about three years old, ostensibly told L.G. that her father had touched her
inappropriately. L.G. took J.R. to an area hospital, and hospital personnel reported the
matter to a local law enforcement agency. During the investigation, J.R. would not or
could not attribute untoward conduct to her father. So the investigation was closed
without any further action.
Nonetheless, beginning in March 2019, L.G. refused to allow I.R. to have any time
with J.R. in violation of the district court's parenting order. L.G. and J.R. also moved, and
L.G. did not give I.R. their new address, another violation of the parenting order.
I.R. then consulted with a lawyer who prepared and filed a motion for civil
contempt of court against L.G. in Seward County for violating the parenting order.
Roughly simultaneously, L.G. sought and obtained a temporary protection from abuse
order in Johnson County District Court against I.R. on behalf of J.R. As is common, L.G.
got the temporary order without notice to I.R. or a court hearing. The record on appeal
indicates L.G. was served with the contempt of court motion and an order to appear in
Seward County District Court about a week later. The Johnson County District Court
later extended the temporary protection from abuse order through September 12, 2019.
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The Seward County District Court held a hearing on I.R.'s contempt motion in
June 2019. The district court found L.G. in contempt based on her failure to allow I.R.
parenting time with J.R. before the Johnson County District Court issued the temporary
PFA order and for failing to provide her new address to I.R. unless the PFA order
permitted her to keep the address confidential. The district court concluded the PFA order
excused L.G. from giving I.R. parenting time with J.R. after it was issued. The district
court then continued the contempt proceeding to late August for "sentencing."
At the August hearing, the district court ordered L.G. to pay I.R. $500 in attorney
fees for pursuing the contempt motion. The district court further ordered L.G. to serve 15
days in jail if she did not inform I.R. of her home address within 7 days or produce a PFA
order that included a confidentiality provision covering the address. L.G.'s lawyer told the
district court the temporary PFA order contained such a clause. But the district court was
unable to immediately confirm that representation, although the temporary PFA had been
filed in this case and was part of the record.
L.G. has appealed and duly filed a brief. I.R. has not filed an opposing brief.
L.G. challenges the sanctions the district court imposed on her after finding her in
civil contempt as outlined in I.R.'s motion. We do not perceive disputed issues of material
fact bearing on the narrow question of the propriety of the sanctions. An appellate court
would customarily review an issue presented on undisputed facts as a matter of law
without deference to the district court's determination. See Estate of Belden v. Brown
County, 46 Kan. App. 2d 247, 258-59, 261 P.3d 943 (2011). In civil contempt
proceedings, however, an appellate court reviews an affirmative finding of contempt
without deference to the district court but examines the remedy for abuse of judicial
discretion. In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002); In re Marriage of
Shelhamer, 50 Kan. App. 2d 152, 154-55, 323 P.3d 184 (2014). A district court exceeds
that discretion if it rules in a way no reasonable judicial officer would under the
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circumstances, if it ignores controlling facts or relies on unproven factual representations,
or if it acts outside the legal framework appropriate to the issue. See Biglow v. Eidenberg,
308 Kan. 873, 893, 424 P.3d 515 (2018); Northern Natural Gas Co. v. ONEOK Field
Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013). Without attempting to resolve
the tension between those standards of appellate review, we apply an abuse of discretion
standard because L.G. challenges the "remedy" or sanctions the district court imposed on
her and the standard is the more favorable one for I.R.
Contempt of court can be either direct or indirect and either civil or criminal. In re
J.T.R., 47 Kan. App. 2d 91, 96, 271 P.3d 1262 (2012). Direct contempt entails
contumacious or disrespectful conduct in the court's presence. Indirect contempt occurs
outside the court's presence and typically involves the willful refusal to obey a court
order, a form of contumacy. Here, we are looking at indirect rather than direct contempt.
The division between civil contempt and criminal contempt turns on the remedy.
Civil contempt aims to compel a delinquent party to comply with a court order in the
future. Upon a finding of civil contempt, a court may jail a recalcitrant party for an
indefinite period until he or she agrees to comply with the order. The court may instead
choose to impose a periodic fine—daily or weekly, for example—or some other coercive
sanction until the party complies. Criminal contempt, however, punishes a party for a past
violation of an order with a fixed fine or jail sentence as a penalty. Criminal contempt
then vindicates a court for a party's past violation of an order rather than seeking the
party's future compliance with the order. See In re Marriage of Shelhamer, 50 Kan. App.
2d at 155-56 (discussing direct and indirect contempt and civil and criminal remedies); In
re J.T.R., 47 Kan. App. 2d at 95-96.
There are also procedural differences between civil contempt and criminal
contempt. Civil contempt must be proved by clear and convincing evidence. 17 C.J.S.
Contempt § 141; 17 Am. Jur. 2d Contempt § 180. Criminal contempt, however, invokes
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greater protections available to all defendants facing criminal prosecution: proof beyond
a reasonable doubt; a presumption of innocence; the right to counsel; the right against
self-incrimination; and presumably the right to jury trial if the punishment will exceed six
months in jail. In re J.T.R., 47 Kan. App. 2d at 99-100; 17 C.J.S. Contempt §§ 142, 145;
17 Am. Jur. 2d Contempt § 180.
With those principles in mind, we examine L.G.'s appellate challenge to the
sanctions the district court imposed on her for the alleged civil contempt. First, we
consider the 15-day jail sentence. Although the appellate record is ambiguous, we
presume the penalty was never carried out because the temporary PFA order clearly
allowed L.G. to keep her residential address confidential—the condition the district court
found would void the jail penalty. In that respect, the district court misunderstood (or did
not fully understand the relevant facts) in fashioning the penalty. The misunderstanding,
thus, fostered an abuse of discretion.
Moreover, a fixed jail sentence, such as the 15-day term imposed on L.G., entails a
penalty for criminal contempt. But L.G. was not accused of or found guilty of criminal
contempt. To the extent L.G. could have been liable for civil contempt at all (something
we question but assume to be true based on how the issues have been framed on appeal),
the appropriate sanction would have been an indeterminate incarceration with release
conditioned on L.G.'s promise to abide by the parenting order in the future. So the district
court stepped outside the settled legal framework for civil contempt when it imposed a
fixed jail sentence on L.G. That would also amount to an abuse of discretion in this
circumstance.
We, therefore, vacate the 15-day jail sentence, assuming it neither has been
withdrawn nor has otherwise become moot.
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The district court's order that L.G. pay I.R. $500 in attorney fees was not a
conditional sanction but appears to have been imposed as a penalty on L.G. for her
violation of the parenting order in March 2019. As such, the fee award was an
impermissible punishment for a past violation of the district court's parenting order rather
than a coercive sanction to induce future compliance. Its imposition, then, amounted to an
abuse of discretion. We vacate the district court's order that L.G. pay I.R. $500 in
attorney fees. We do not consider whether other legal grounds might permit a district
court to award attorney fees to a party prevailing on a motion for indirect civil contempt
in some circumstances.
On appeal, L.G. also argues the district court's contempt finding should be set
aside because she unilaterally denied I.R. parenting time to protect J.R. She seems to
advance an argument for a legal defense of necessity or greater-good in a contempt
proceeding. See City of Wichita v. Tilson, 253 Kan. 285, 288-91, 855 P.2d 911 (1993)
(discussing contours of necessity defense and indicating Kansas has not considered or
recognized such a defense); see also State v. Roeder, 300 Kan. 901, 919, 336 P.3d 831(2014) (Upon rejecting necessity as a possible defense on the facts of that criminal
prosecution, the court states: "As in Tilson, we decline to definitively state whether
the necessity defense has any life in this state under other circumstances."). Here, as we
have explained, L.G. premised her violation of the parenting order on her uncorroborated
representation that J.R. said I.R. had acted inappropriately. L.G., however, neither cites
any authority for such a defense nor explains why, as a matter of law, we should
recognize one. We decline to consider the point. See State v. Gonzalez, 307 Kan. 575,
592, 412 P.3d 968 (2018).
The remedies or sanctions the district court imposed on L.G. for indirect civil
contempt are vacated.
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