Silver v. Silver ( 2022 )

89
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted November 9, affirmed December 7, 2022
Ross Saxon SILVER,
Petitioner-Respondent,
v.
Emily Claire SILVER,
Respondent-Appellant.
Deschutes County Circuit Court
20CN04597; A176669
Alicia N. Sykora, Judge.
Richard D. Cohen argued the cause and filed the briefs
for appellant.
Michael H. McGean argued the cause for respondent.
Also on the brief were Francis Hansen & Martin LLP and
Sarah E. Harlos.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
Affirmed.
90 Silver v. Silver
TOOKEY, P. J.
Mother appeals from a judgment of remedial con-
tempt finding that she knowingly and voluntarily failed
to comply with a temporary parenting-time order requir-
ing her to keep “Timex Family Connect Watches”—“smart
watches”—charged, turned on, and available to the parties’
children so that the children could communicate with father
between the hours of 6:00 and 7:00 p.m. on the days when
the children were in her care. Mother does not dispute the
finding of contempt but contends that the sanction imposed
by the trial court was, in fact, punitive rather than reme-
dial, and that the judgment of contempt should therefore
be reversed, because the procedures for punitive contempt
set out in ORS 33.055 were not followed. We reject mother’s
contentions and affirm.
The underlying procedural facts are undisputed. In
a motion for an order to show cause, father asked the court
to order mother to comply with its temporary parenting time
order and impose a monetary remedial sanction requiring
mother to pay father’s attorney fees and costs incurred in
seeking to enforce the temporary parenting time order.
Mother responded with a motion to dismiss, contending that
there was no contempt and that the contempt proceeding
had been improperly initiated. At a hearing on the motion,
mother asserted that the requested sanction was punitive
and that the court therefore should dismiss father’s motion
for lack of “jurisdiction.”
The trial court determined that mother was in con-
tempt for failure to keep the smart watches charged. The
court entered a judgment of remedial contempt and imposed
a sanction of attorney fees and costs, the amount of attorney
fees to be determined pursuant to ORCP 68.
On appeal, mother does not challenge the trial
court’s finding of contempt but assigns error to the trial
court’s denial of her motion to dismiss for lack of jurisdic-
tion. She contends in her argument on her first assignment
of error that what distinguishes remedial and punitive con-
tempt is the form of sanction:
“A remedial sanction is one that takes effect to counter con-
tempt behavior that occurs from the date of the contempt
Nonprecedential Memo Op: 323 Or App 89 (2022) 91
order forward. Punitive fines, or sanctions, are plainly for
past misconduct or contempt, and remedial fines and sanc-
tions are for continuing contempt.”
Mother argues that, because the sanction of an award of
attorney fees sought by father is a “punishment” for past
behavior, the sanction is necessarily punitive, which gives
rise to procedural requirements that were not adhered to
here. See ORS 33.065(2) (limiting who may initiate a pro-
ceeding for punitive contempt to a city attorney, a district
attorney, or the attorney general). Thus, mother asserts, the
trial court lacked “jurisdiction” of the proceeding.
Mother is incorrect; attorney fees are statutorily
authorized as a sanction for remedial contempt. ORS 33.015(4)
defines a remedial sanction:
“ ‘Remedial sanction’ means a sanction imposed to termi-
nate a continuing contempt of court or to compensate for
injury, damage or costs resulting from a past or continuing
contempt of court.”
Additionally, ORS 33.105(1)(e) provides that a remedial
sanction includes:
“Payment of all or part of any attorney fees incurred by a
party as the result of a contempt of court.”
ORS 33.105(1)(e) explicitly authorizes an award of attorney
fees as a sanction for remedial contempt. See OEA v. Oregon
Taxpayers United, 227 Or App 37, 54, 204 P3d 855 (2009)
(holding that ORS 33.105(1)(e) expressly authorizes attorney
fees as a sanction for remedial contempt); St. Sauver and
St. Sauver, 196 Or App 175, 189, 100 P3d 1076 (2004) (ORS
33.105(1)(e) entitles the prevailing party in a contempt pro-
ceeding in a dissolution action to recover attorney fees).
Mother argues that, if and to the extent that such a
sanction is statutorily authorized, it is punitive, because it is
unconditional and does not allow the contemnor to remedi-
ate through current and future behavior, and, further, that
it cannot be sustained in the absence of constitutional due
process protections such as those required in the context of
a punitive contempt. Mother has not preserved or developed
her constitutional argument so as to allow us to address
it.
92 Silver v. Silver
In her second assignment, mother contends that the
motion for an order to show cause was “deficient in form,”
in that it did not comply with ORS 33.055(5)(a)1 or Uniform
Trial Court Rule 19.020,2 because it did not inform mother
of the amount of the attorney fee that was being requested
as a sanction. We have reviewed the record and conclude
that mother’s argument is not preserved. We reject mother’s
suggestion that we exercise our discretion to consider it as
plain error.
Affirmed.
1
ORS 33.055(5)(a) provides:
“The court may issue an order directing the defendant to appear. Except
as otherwise provided in paragraph (b) of this subsection, the defendant shall
be personally served with the order to appear in the manner provided in
ORCP 7 and 9.”
2
UTCR 19.020(1)(b) requires that the initiating instrument state the “max-
imum sanction(s) that the party seeks,” whether the party seeks a sanction of
confinement, and whether the party considers the sanction remedial or punitive.