In re Marriage of Clark & Daniels

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NOT DESIGNATED FOR PUBLICATION

No. 116,450

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of

ASHLEY (MIKIJANIS) CLARK,
Appellant,

and

BRANT DANIELS,
Appellee.


MEMORANDUM OPINION

Appeal from Jefferson District Court; GARY L. NAFZIGER, judge. Opinion filed April 21, 2017.
Affirmed in part and vacated in part.

Katherine C. Clevenger, of Kreamer, Kincaid, Taylor Lipsman, Parks & Arney, LC, of Overland
Park, and Allison G. Kort, of The Kort Law Firm, LLC, of Westwood, for appellant.

Adam M. Hall, of Collister & Kampschroeder, of Lawrence, for appellee.

Before ARNOLD-BURGER, C.J., BUSER and POWELL, JJ.

POWELL, J.: Ashley (Mikijanis) Clark appeals the district court's contempt finding
against her as well as its imposition of a 48-hour jail sentence. The contempt proceedings
arose from a dispute between Clark and Brant Daniels regarding Daniels' parenting time
on their daughter's birthday. The Parenting Plan dictated that Daniels spend the child's
birthday with him in 2016, yet Clark only permitted Daniels to spend time with their
daughter from 3 p.m. that day to 8:15 a.m. the following morning. After an evidentiary
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hearing, the district court concluded Clark had intentionally withheld parenting time from
Daniels on their daughter's birthday, found Clark in contempt, and sanctioned her with
attorney fees and 48 hours in the county jail. Clark now appeals, claiming the district
court erred in finding her in contempt and that the district court violated her due process
rights by imposing a jail sanction without advance notice. While we agree with Clark that
her due process rights were violated because the district court failed to provide advance
notice that a jail term was a possible sanction for contempt and, therefore, vacate the jail
sentence, we affirm the district court in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

Daniels and Clark, who divorced in February 2012, are the parents to daughter
M.D., born May 7, 2010. M.D. and the couple's other child primarily reside with Clark,
with Daniels having parenting time as provided by the Parenting Plan every other
weekend (Friday to Monday morning) and every Wednesday overnight. The Parenting
Plan also sets forth how birthdays and holidays will be spent. Pursuant to the Parenting
Plan, parenting time on M.D.'s birthday was to be divided as follows:

"H14. Child's Birthday—The child shall spend the child's birthday with parent B in even-
numbered years and with parent A in odd-numbered years. The parents shall arrange for
the child to have time with the other parent on their birthday, if feasible, or the weekend
before or after."

The Parenting Plan designates Clark as parent A and Daniels as parent B. The Parenting
Plan does not establish the pickup and drop off times that are to occur on each child's
birthday.

According to the Parenting Plan, Daniels was to have parenting time with M.D. on
her birthday in 2016—a Saturday—but a dispute between Clark and Daniels arose as to
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how the parenting time between the parties would be divided. Daniels believed M.D.
should spend the day with him, and Clark believed Daniels should have parenting time
from 5:30 p.m. on M.D.'s birthday until 8:15 a.m. the following day.

Between March 1 and March 7, 2016, Clark and Daniels exchanged a number of
emails concerning Daniels' parenting time for M.D.'s birthday. Clark maintained that
because the majority of the other holidays in the Parenting Plan began at 5:30 p.m., and
because the time for the parents' birthdays in the Parenting Plan began at 5:30 p.m. and
lasted until the following morning, parenting time on M.D.'s birthday should also begin at
5:30 p.m. Clark also told Daniels that M.D. had a dance recital on the day of her birthday,
although apparently there was no such recital. Daniels informed Clark that he had a
birthday party planned for M.D. on her birthday. The parties did not resolve the dispute.

In the week before M.D.'s birthday, counsel became involved. Clark offered to
"compromise" with Daniels and let his parenting time on M.D.'s birthday begin at 3 p.m.
instead of 5:30 p.m. Daniels accepted this compromise under protest and expressly
reserved the right to petition the court for relief. Daniels was forced to cancel his planned
birthday party for M.D. because his parenting time would not begin until after the party
was scheduled to begin. Daniels exercised his parenting time with M.D. on her birthday
from 3 p.m. until 8:15 a.m. the following morning, and he exercised his normal parenting
time with M.D. on the weekends before and after her birthday.

On May 20, 2016, Daniels filed a verified motion for an order to appear and show
cause re contempt, alleging that Clark violated the Child's Birthday provision of the
Parenting Plan. Following the presentation of evidence at the show cause hearing on July
22, 2016, the district court made the following relevant findings:

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"Based upon the evidence and testimony—and as I stated earlier in the case, I'm
familiar with the progress of this case, and I'm familiar with the prior difficulties we've
had with [Clark] . . . complying with the orders of the Court.

"In prior matters, she—when the Court specifically ordered that the children
were to remain in the school district in Jefferson County, Kansas—McLouth, as I
recall—she removed them from that school district, enrolled them in another school
district without this Court's permission. That matter, I thought, was resolved.

"Now we're back in court arguing over the definition of the word 'day,' which
resulted in [Daniels] not being able to have a day with his child. It resulted in the birthday
party for the child being aborted.

"The Court finds that Ashley [Clark] has deliberately and intentionally thwarted
and refused to comply with the child custody agreement, which provided that the father
on this particular date was to have the day of the child's birthday for visitation.

"The Court finds—you know, the problem I have is I can only do a few things up
here. I can issue orders, and then if people don't comply with them, all I've got left is to
send them to jail. We've talked about this before in prior hearings.

"The Court finds that the mother, Ashley [Clark], is in contempt of the Court's
order, which provided that Father was to have the child's birthday on that day, visitation
day on that day, that it upset the plans of the child, upset the plans of the father. This was
directly attributable to Ashley [Clark's] actions."

The district court also ordered Clark to pay Daniels' attorney fees in the amount of
$752.50 and further ordered Clark to serve a 48-hour jail term in the Jefferson County,
Kansas, jail to begin approximately 2 weeks after the date of the hearing.

Clark timely appeals.

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DID THE DISTRICT COURT ERR IN FINDING CLARK IN CONTEMPT
AND IMPOSING A JAIL SANCTION?

Clark argues two points on appeal. First, she claims the district court erred when it
held her in contempt of court. Second, Clark argues the district court abused its discretion
by imposing a 48-hour jail sanction because she was not given advance notice of the
possibility of jail time if found in contempt, a violation of her due process rights. We will
address each argument in turn.

"We apply a dual standard of review to any appeal from a finding of contempt of
court. We review de novo the trial court's determination that the alleged conduct
constitutes contempt, while we review the impositions of sanctions for abuse of
discretion." In re Marriage of Shelhamer, 50 Kan. App. 2d 152, 154, 323 P.3d 184
(2014). A district court abuses its discretion if no reasonable person would take the view
adopted by the trial court, if the decision is based on an error of law, or if the decision is
based on an error of fact. Wiles v. American Family Life Assurance Co., 302 Kan. 66, 74,
350 P.3d 1071 (2015).

1. Was Clark's withholding of parenting time contemptuous?

Generally, contempt of court is defined as "disobedience to, disregard of,
interference with, or disrespect of the court, by acts in opposition to its authority and the
administration of justice, hindering, impeding, embarrassing, or obstructing the court in
the discharge of its duties." 17 Am. Jur. 2d, Contempt § 2, p. 469. "Courts exercise
contempt powers in order to maintain decorum in all court proceedings, punish those who
show disrespect for the court or its orders, and enforce its judgments." In re J.T.R., 47
Kan. App. 2d 91, 94, 271 P.3d 1262 (2012).

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"Whether a particular act or omission is contemptuous depends upon the nature of
the act or omission as well as all surrounding circumstances, including the intent and
good faith of the party charged with contempt." In re Marriage of Brotherton, 30 Kan.
App. 2d 1298, 1302, 59 P.3d 1025 (2002). "[A] party 'should not be punished for
contempt for disobeying a decree, if the decree is capable of construction consistent with
innocence.'" Alpha Med. Clinic v. Anderson, 280 Kan. 903, 927, 128 P.3d 364 (2006)
(quoting Ensch v. Ensch, 157 Kan. 107, Syl. ¶ 3, 138 P.2d 491 [1943]).

The essence of Clark's argument is that there is insufficient evidence to support the
district court's contempt finding. We are unpersuaded and see no useful purpose in
detailing the evidence on this point other than to say there was ample evidence to support
the district court's judgment. See Goetz v. Goetz, 181 Kan. 128, 135, 309 P.2d 655
(1957).

In brief, the Parenting Plan provided that Daniels was to "spend the child's
birthday" with his daughter. Under protest, Daniels was only able to spend from 3 p.m. to
8:15 a.m. the next day with his daughter on her birthday. Black's Law Dictionary defines
"day" as "[a]ny 24-hour period." Black's Law Dictionary 479 (10th ed. 2014).
Additionally, under the common meaning of the word "day," it is not possible to read a
construction consistent with Clark's innocence, especially taking into account the
surrounding circumstances. It is difficult to imagine a rational interpretation of the word
"day" as being only 9 hours of the calendar date in question—particularly when
considering the age of the child (this was her 6th birthday)—yet Daniels received only a
limited number of awake hours with his daughter on her birthday. Not only did M.D.'s
birthday party have to be cancelled, it also appears that Clark has unclean hands because
she fabricated a dance recital on M.D.'s birthday. Finally, the district court noted in its
findings that Clark had a record of not complying with the court's orders. In light of all
the surrounding circumstances, it appears Clark wanted to claim time on M.D.'s birthday
for herself, even though it was Daniels' year to spend it with M.D. Because the district
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court found that Clark deliberately and intentionally refused to comply with the Parenting
Plan, the district court correctly determined that Clark's actions were contemptuous.

2. Were the sanctions imposed by the district court an abuse of discretion?

Having determined that Clark's actions were contemptuous, we must next
determine the appropriateness of the sanctions imposed by the district court. Classifying
Clark's contempt guides us in evaluating the sanctions.

K.S.A. 20-1202 defines two classes of contempt: "[C]ontempts committed during
the sitting of the court or of a judge at chambers, in its or his presence, are direct
contempts. All others are indirect contempts." Because Clark's conduct occurred outside
the presence of the judge, her contempt is indirect.

"Contempt cases are further delineated as either criminal or civil by the character
of the sanction imposed." In re Marriage of Shelhamer, 50 Kan. App. 2d at 155. "'Civil
contempt is the failure to do something ordered by the court for the benefit or advantage
of another party to the proceeding.'" State v. Jenkins, 263 Kan. 351, 358, 950 P.2d 1338
(1997) (quoting Krogen v. Collins, 21 Kan.App.2d 723, 726, 907 P.2d 909 [1995]). "Any
civil contempt penalty is intended to be coercive, and relief can be achieved only by
compliance with the order." In re J.T.R., 47 Kan. App. 2d at 95. In fact, the party in
contempt can be confined until compliance with the court's order is obtained. Jenkins,
263 Kan. at 358. However, in a civil contempt case, the court "must furnish the
contemnor the 'keys to the jailhouse door' and allow her to purge her contempt at any
time by complying with the order in question." In re Marriage of Shelhamer, 50 Kan.
App. 2d at 155.

"'Criminal contempt, by contrast, is "conduct directed against the dignity and
authority of a court or a judge acting judicially, with punitive judgment to be imposed in
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vindication; its essence is that the conduct obstructs or tends to obstruct the
administration of justice." [Citation omitted.]'" Jenkins, 263 Kan. at 358 (quoting Krogen,
21 Kan. App. 2d at 726).

"Depending on circumstances, an act may support a finding of both criminal and civil
contempt. . . .
"Contempts may be neither wholly civil nor altogether criminal, but may partake
of the characteristics of both.
. . . .
"Where the primary purpose for a proceeding is to preserve the court's authority
and to punish for disobedience, contempt is generally considered criminal; contempt is
considered civil where the purpose of the proceeding is to coerce obedience to a court
order, or if the relief afforded by a contempt sanction is designed to compensate a
complainant for losses." 17 C.J.S., Contempt § 8 (1999).

Here, Clark's contempt can be characterized as both indirect civil and criminal
contempt. The district court's award of Daniels' attorney fees appears to be an attempt to
compensate Daniels for the financial losses he suffered in bringing the action. However,
the 48-hour jail sanction is clearly punishment for Clark's ongoing refusal to comply with
the district court's Parenting Plan order. The district court found Clark had "deliberately
and intentionally thwarted and refused to comply with the child custody agreement,
which provided that the father on this particular date was to have the day of the child's
birthday for visitation." The criminal nature of the district court's jail sanction is
buttressed by the fact that Clark could not engage in any act of compliance to avoid the
jail sanction. M.D.'s birthday has come and gone, and Daniels will never be able to get
that day back with his daughter regardless of how compliant Clark is with the district
court's orders in the future.

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a. The 48-hour jail sanction

Clark principally argues that the 48-hour jail sanction was an abuse of the district
court's discretion because she was not given advance notice that jail time was a
possibility if she was found in contempt and the sanction violates her due process rights.
We agree.

Any sanction imposed in a contempt proceeding must be both procedurally and
substantively proper. "The procedure for holding a party in indirect contempt . . . is set
forth by statute and must be strictly construed against the movant." Cyr v. Cyr, 249 Kan.
94, Syl. ¶ 5, 815 P.2d 97 (1991). The petitioner must file a motion, accompanied by an
affidavit setting forth the facts constituting the alleged violation, requesting an order to
appear and show cause why the contemnor should not be held in contempt. K.S.A. 2016
Supp. 20-1204a(a). The order to appear and show cause must state the time and place of
the hearing and must be served, along with a copy of the affidavit, on the alleged
contemnor by the sheriff. K.S.A. 2016 Supp. 20-1204a(b).

Moreover, "if the court simply wants to punish a contemnor, then the due process
rights that attend any criminal charge should apply. These rights include:

• notice of charge and possible penalty;
• court-appointed counsel if indigent;
• right to trial;
• privilege against self-incrimination;
• right to confront witnesses and to compel testimony." In re J.T.R., 47 Kan. App.
2d at 101.

Here, while Daniels properly submitted a motion and affidavit and the district
court issued the proper order which was served on Clark, we see nothing in the record to
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show that Clark was given advance notice that her possible penalty for contempt could
include jail time. Therefore, the district court violated Clark's due process rights by
imposing a jail sanction without proper prior notice.

b. The attorney fees sanction

Finally, we briefly address the attorney fees sanction. We note that nowhere in
Clark's brief—except in a heading—does she argue that the district court's attorney fees
sanction is improper. It is well established that an issue not briefed by the appellant is
deemed waived or abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885,
889, 259 P.3d 676 (2011). The same is also true with points only incidentally raised and
not argued. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d
287 (2013). While Clark does raise the issue and make arguments in her reply brief, "[a]
reply brief is an inappropriate vehicle for raising additional issues." City of Wichita v.
McDonald's Corp., 266 Kan. 708, 724, 971 P.2d 1189 (1999). Accordingly, we must
deem the issue waived.

However, even if Clark had properly raised the issue of the attorney fees sanction,
we see no abuse of discretion. First, an award of attorney fees is proper in a contempt
proceeding as compensation to the prevailing party. In re Marriage of Brotherton, 30
Kan. App. 2d at 1303; see also 17 Am. Jur. 2d, Contempt § 209, p. 674 ("Reasonable
attorney's fees are generally allowed to the prevailing plaintiff in a civil contempt
proceeding, within the discretion of the trial court."). Second, even if Clark had not been
found in contempt, the district court still has the power in family law cases to award
attorney fees "as justice and equity require." K.S.A. 2016 Supp. 23-2715.

Accordingly, we vacate the district court's 48-hour jail sanction but affirm all other
aspects of the district court's contempt order.

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Affirmed in part and vacated in part.