Bullock v. Bullock , 336 P.3d 136 ( 2014 )

IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 131OCTOBER TERM, A.D. 2014
October 23, 2014
TED A. BULLOCK,
Appellant
(Plaintiff),
v.
TERESA M. BULLOCK,
Appellee
(Defendant).
S-14-0033, S-14-0069
TED A. BULLOCK,
Appellant
(Plaintiff),
v.
TERESA M. BULLOCK,
Appellee
(Defendant).
Appeal from the District Court of Park County
The Honorable Steven R. Cranfill, Judge
Representing Appellant:
Mary Elizabeth Galvan, Galvan & Fritzen, Laramie, WY.
Representing Appellee:
Thomas Patrick Keegan, Keegan & Winslow, Cody, WY.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.
[¶1] Ted Bullock (Father) and Teresa Bullock (Mother) were divorced in February
2013. In mid-summer 2013, Mother filed a contempt motion alleging Father had violated
the divorce decree by failing to obtain health insurance coverage for the parties’ daughter,
failing to exercise summer visitation with the parties’ son, and interfering with Mother’s
use of outbuildings associated with the residence in which she and the children were
entitled to reside under the decree. The district court entered orders: (1) holding Father
in contempt for failing to provide insurance and/or proof of insurance for the parties’
daughter; (2) sanctioning Father for failing to exercise summer visitation with the parties’
son; (3) ordering that Mother would have use of the outbuildings in dispute; and (4)
requiring Father to pay Mother’s attorney fees associated with the contempt motion.
Father appeals the order relating to the health insurance and visitation and the order
requiring that he pay Mother’s attorney fees. We affirm in part and reverse in part.
ISSUES
[¶2] Father separately appealed the contempt and attorney fees orders, and those filings
have been consolidated on appeal. With respect to Father’s appeal of the contempt order,
Father presents four issues. The first two issues relate to the health insurance findings,
and the last two issues relate to the visitation findings. Father states those four issues as
follows:
A. Whether the district court committed a clear and grave
abuse of discretion, committed a serious procedural
error, or violated a principle of law in holding [Father]
in contempt of court for failing to comply with the
medical support provisions of the divorce decree in the
absence of a clear and unambiguous order requiring
him to file proof of insurance or addressing the
sufficiency of medical insurance.
B. Whether the district court abused its discretion by
modifying the medical support provisions of the
Decree of Divorce in the absence of a proper pleading
for modification by conditioning the sufficiency of the
insurance provided by [Father] on [Mother’s]
approval.
C. Whether the district court had subject matter
jurisdiction to impose a monetary sanction against
[Father] for failing to exercise visitation with an adult
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child to enforce an agreement which was outside the
scope of the Decree of Divorce.
D. Whether the district court committed a grave
procedural error and abused its discretion by
penalizing [Father] in the form of a money judgment in
favor of [Mother] in the absence of procedural due
process in a criminal contempt proceeding.
[¶3] In his appeal of the attorney fees order, Father presents a single issue and states
that issue as follows:
Whether the district court’s award of attorney’s fees and costs
to the [Mother] in a contempt action should be vacated if the
district court erred, as a matter of law, in finding [Father] in
contempt of court for violating the medical support provisions
of the Decree of Divorce.
FACTS
[¶4] Father and Mother were married on April 13, 2006. At the time of their marriage,
Mother had two children, CCB, born in 1994, and KEB, born in 1996. CCB is severely
disabled and requires full time care, and KEB has suffered a traumatic brain injury that
interferes with her ability to learn and will likely prevent her from obtaining a high
school diploma. Father adopted the children in 2007.
[¶5] On February 23, 2012, Father filed a complaint for divorce, and on February 19,
2013, the district court entered a divorce decree. The divorce decree incorporated the
parties’ stipulated Property Settlement, Child Custody and Child Support Agreement
(Agreement). Pursuant to the Agreement, Mother was awarded primary physical custody
of the children. Father agreed to pay lifetime support for CCB and support for KEB until
she graduates from high school or reaches the age of twenty-one, whichever occurs first.
The parties agreed that when KEB reaches the age of twenty-one, they would have KEB
evaluated to determine whether lifetime support would be necessary. The Agreement
further specified that Father would provide health insurance for KEB:
[Father] will arrange for health insurance for KEB.
CCB is currently receiving Medicaid. Each party will be
responsible for one-half of all medical, dental, counseling,
optical and/or orthodontic bills for the children not covered
by medical insurance. Each party will also be responsible for
one half of all travel expenses associated with the children’s
health care.
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[¶6] Regarding visitation, the Agreement entitled Father to weekend and holiday
visitation. Relevant to this appeal, the Agreement provided as follows concerning
summer visitation:
Both parties may opt to have the children for two consecutive
weeks during the summer visitation in order to accommodate
longer trips. The parties will discuss this possibility and
make such arrangements before May 31 of every year.
[¶7] The Agreement also addressed Mother’s living accommodations. During the
marriage the parties did not acquire real property and had lived in a home on ranch
property owned by Father’s family. The Agreement provided that Mother and the
parties’ children would continue to reside in the marital home until both children
graduated from high school.
[¶8] On July 8, 2013, Mother filed a motion for order to show cause why Father should
not be held in contempt of court for violating the Agreement. Through that motion,
Mother alleged that Father violated the Agreement by: 1) interfering with her use of the
marital home and associated outbuildings; 2) failing to exercise his visitation rights with
the children and most particularly CCB; and 3) failing to procure health insurance for
KEB. On July 19, 2013, the district court issued a show cause order requiring Father to
appear at a hearing on October 1, 2013 and show cause why he should not be held in
contempt.
[¶9] On October 1 and October 28, 2013, the court held evidentiary hearings on
Mother’s contempt motion. At the conclusion of the hearing, the court orally ruled that
the Agreement permitted Mother to use the outbuildings associated with the marital
home, including the barn and shop. With respect to the health insurance coverage for
KEB, the court ruled that the documents that Father submitted during the hearing did not
qualify as health insurance and that Father was therefore in contempt. The court further
ruled that Father could purge the contempt by submitting evidence of acceptable health
insurance coverage by January 1st. Last, the court ruled that Father must reimburse
Mother for day care costs she incurred during periods in which Father was supposed to
have summer visitation with CCB.
[¶10] On October 31, 2013, Father filed a motion for new trial pursuant to W.R.C.P. 59.
Attached to the motion was a copy of the health insurance policy that Father had obtained
for KEB, with an effective date of July 18, 2013.
[¶11] On November 21, 2013, the court issued its Order on Motion for Contempt. The
written order provided, in part:
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The Court, having heard the evidence of the parties and
having considered their exhibits, hereby finds and orders as
follows:
....
4. The Court, having reviewed the insurance information,
finds that there is not sufficient proof of a health insurance
policy in place for KEB. [Father] shall be held in contempt of
court for failing to provide insurance for KEB and/or proof of
insurance, but may purge himself of contempt by presenting
an acceptable health insurance policy to [Mother] and her
attorney by January 1, 2014.
....
6. [Father and Mother] entered into an agreement for
summer visitation with regard to CCB and the Court finds
that [Father] failed to follow through on the visitation,
resulting in daycare costs that were paid by [Mother]. The
following daycare costs are hereby awarded to [Mother]:
$164.50, $124.25, $122.50 and $200.00. [Mother] is hereby
awarded a judgment against [Father] in the amount of
$611.25.
....
8. [Mother’s] attorney may submit an Affidavit of
Attorney’s Fees pursuant to Rule 54 of the Wyoming Rules of
Civil Procedure.
[¶12] On December 11, 2013, Mother filed her application for an award of attorney fees.
On December 17, 2013, Father filed a notice of appeal from the Order on Motion for
Contempt. On December 23, 2013, Father filed a Notice of Supplemental Filing Proof of
Insurance. This filing had attached to it a summary of health insurance benefits showing
that KEB was a named beneficiary on the health insurance coverage Father’s new wife
had through her employer.
[¶13] On January 14, 2014, the court held a hearing on Mother’s attorney fees motion.
On January 21, 2014, the court issued a decision letter addressing the fees application and
awarding the requested fees, and on February 5, 2014, the court issued an Order
Awarding Attorney’s Fees. On February 10, 2014, Father filed a Notice of Compliance
with Orders, notifying the court that Father had paid to Mother all amounts ordered by
the court. On February 18, 2014, Father filed a notice of appeal from the Order
Awarding Attorney's Fees. On April 16, 2014, this Court issued an Order Consolidating
Appeals.
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STANDARD OF REVIEW
[¶14] We review a district court’s exercise of its contempt powers as follows:
This Court does not interfere with an order holding a
party in civil contempt of court in a domestic relations case
“absent a serious procedural error, a violation of a principle of
law, or a clear and grave abuse of discretion.” Roberts v.
Locke, 2013 WY 73, ¶ 14, 304 P.3d 116, 120 (Wyo.2013).
See also Munoz v. Munoz, 2002 WY 4, ¶ 6, 39 P.3d 390, 392
(Wyo.2002); Olsen v. Olsen, 2013 WY 115, ¶ 33, 310 P.3d
888, 896 (Wyo.2013). In reviewing the exercise of a district
court’s broad discretion under its contempt powers, we must
determine whether the court reasonably could have concluded
as it did. Roberts, ¶ 14, 304 P.3d at 120, citing Stephens v.
Lavitt, 2010 WY 129, ¶ 18, 239 P.3d 634, 639 (Wyo.2010).
Shindell v. Shindell, 2014 WY 51, ¶ 7, 322 P.3d 1270, 1273 (Wyo. 2014); see also
McAdam v. McAdam, 2014 WY 123, ¶ 9, ___ P.3d ___ (Wyo. 2014).
[¶15] A district court’s enforcement of a divorce decree raises a question of law, which
we review de novo. Walker v. Walker, 2013 WY 132, ¶ 36, 311 P.3d 170, 177-78 (Wyo.
2013). Finally, we review an award of attorney fees as follows:
The question of whether there is legal authority to award
attorney fees is one of law, which we review de novo. See,
Thorkildsen v. Belden, 2011 WY 26, ¶ 8, 247 P.3d 60, 62
(Wyo.2011); Ultra Resources, Inc. v. Hartman, 2010 WY 36,
¶ 149, 226 P.3d 889, 935 (Wyo.2010); Breitenstine v.
Breitenstine, 2006 WY 48, ¶ 12, 132 P.3d 189, 193
(Wyo.2006). The final attorney fee award is, however,
reviewed for abuse of discretion. Mueller v. Zimmer, 2007
WY 195, ¶ 11, 173 P.3d 361, 364 (Wyo.2007).
Evans v. Moyer, 2012 WY 111, ¶ 37, 282 P.3d 1203, 1214 (Wyo. 2012).
DISCUSSION
[¶16] In its Order on Motion for Contempt, the district court ordered Father to allow
Mother use of outbuildings associated with the marital home, to reimburse Mother for
day care expenses incurred when Father did not exercise summer visitation with CCB,
and to submit proof of health insurance for KEB. By separate order, the court ordered
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Father to pay Mother’s attorney fees and costs associated with her contempt motion.
Father did not appeal the contempt order as it pertains to Mother’s use of the
outbuildings, but he does challenge the portions of the contempt order relating to his
visitation with CCB and his obligation to obtain health insurance for KEB. We will first
address Father’s challenges to the contempt findings and then turn to his challenge to the
attorney fees award.1
A. Contempt Findings
[¶17] A civil contempt order must be supported by clear and convincing evidence.
McAdam, ¶ 14, ___ P.3d ___; Shindell, ¶ 10, 322 P.3d at 1274. Clear and convincing
evidence is “evidence that would persuade a finder of fact that the truth of the contention
is highly probable.” Id. The elements of civil contempt are: “1) an effective court order
that required certain conduct by the alleged contemnor; 2) the contemnor had knowledge
of the order; and 3) the alleged contemnor disobeyed the order.” Id. Once these elements
are proven, the burden shifts to the person charged with contempt to show he or she was
unable to comply. Id.
1. Visitation Contempt and Award of Day Care Costs
[¶18] In its Order on Motion for Contempt, the district court found Father in contempt
for failing to exercise visitation with CCB as required by the parties’ Agreement.2 Based
on that finding, the court ordered Father to reimburse Mother for the day care costs she
incurred during the period Father was supposed to be exercising visitation. We find no
support for this ruling in the record.
[¶19] The parties’ Agreement allows Father the opportunity to exercise visitation with
the parties’ children. It does not mandate that visitation. In regard to summer visitation,
the Agreement allows the parties to “opt to have the children for two consecutive weeks
1
Mother argues that Father’s appeal of the contempt order is moot because Father has already paid all
amounts ordered by the district court as a result of the contempt findings and in doing so has purged
himself of the contempt. We disagree. First, it is not clear from the district court’s ruling that payment of
the amounts ordered operated to purge the entire contempt. The Order on Motion for Contempt provided
that Father could purge his contempt on the insurance violation by providing proof of insurance, but it
contained no similar provision on the other violations. Second, the contempt violations are based on
findings that may affect the parties going forward. For these reasons, a dispute remains on which this
Court’s decision will have an impact and the matter is not moot. See KO v. LDH (In re MEO), 2006 WY
87, ¶ 27, 138 P.3d 1145, 1153-54 (Wyo. 2006) (to remain a justiciable controversy, there must be “a
sufficient prospect that the decision will have an impact on the parties.”).
2
The district court’s order did not explicitly state that the court was holding Father in contempt for
failing to exercise his visitation with CCB. The finding that Father violated the Agreement, and the
associated award of costs, were, however, in the contempt order, and we will therefore treat the court’s
ruling as if it were a contempt holding.
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during the summer visitation in order to accommodate longer trips.” If the parties choose
to exercise this option, they must “make such arrangements before May 31 of every
year.” Mother testified that she and Father discussed the two-week visitation option and
scheduled a two-week period during the 2013 summer that Father would have the
extended visitation with CCB. Even assuming, however, that the parties agreed upon and
scheduled the extended visitation, the Agreement does not make that visitation mandatory
or require Father to pay cancellation costs if his plans to exercise his visitation rights
were to change. 3
[¶20] The record does not contain clear and convincing evidence that Father violated an
order requiring visitation with CCB. We therefore reverse that portion of the court’s
Order on Motion for Contempt that found Father in violation of the Agreement for failing
to exercise visitation with CCB and vacate the award of day care costs associated with
that finding.
2. Health Insurance Contempt Finding
[¶21] The district court ruled that the evidence Father submitted during the show cause
hearing was not sufficient to prove that he had obtained the health insurance for KEB
required by the parties’ Agreement. The court therefore held Father in contempt for
failing to provide insurance for KEB and/or proof of insurance. We again find that the
record does not support the court’s contempt finding.
[¶22] Before turning to the proof of insurance question, we will first address Father’s
contention that the district court impermissibly modified the divorce decree by requiring
Father to submit insurance that is satisfactory to Mother. In particular, Father points to
the contempt order’s language that allows Father to purge himself of the contempt related
to the health insurance requirement “by presenting an acceptable health insurance policy
to the Defendant and her attorney by January 1, 2014.” Father contends that this
language imposes a requirement that Mother must approve the health insurance policy,
that such a requirement is not contained in the parties’ Agreement, and that the court
therefore modified the decree without a proper modification motion having been filed.
[¶23] We disagree that the district court’s order operated to modify the divorce decree.
Though the order is not as clear as it might have been, we believe that the court’s
reference to an “acceptable health insurance policy” was not a reference to the terms of
the policy or the insurer. During the show cause hearing, Mother had expressed concerns
that the information submitted by Father showed not an insurance policy but rather
membership in a healthcare discount club. The court itself was likewise troubled by
3
We note that the Agreement requires that any modification of the Agreement must be in writing and
executed with the same formality as the Agreement. The parties did not testify to any such modification,
and the record contains no such writing.
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prescription cards that seemed to disavow that they were insurance related. Reading the
court’s order in this context, we interpret the court’s language as a reference to the proof
of insurance rather than as a reference to the terms of the policy or the insurer. The court
thus did not modify the health insurance provision by requiring Mother’s approval of the
policy.
[¶24] We turn then to whether the record supports the district court’s contempt finding
with respect to Father’s obligation to provide health insurance for KEB. The clear and
convincing evidence standard for a contempt holding required a showing that it was
highly probable that Father had not obtained the required health insurance for KEB by the
time of the show cause hearing in October 2013.
[¶25] Father testified that while he did not have the insurance in place when Mother
filed her contempt motion on July 8, 2013, he had obtained the insurance by the end of
July 2013. One of the exhibits received into evidence during the show cause hearing was
Defendant’s Exhibit B, which included three documents. The first document was a
Secured Care Short Term Medical Insurance Application, underwritten by Companion
Life Insurance Company, listing Father as the primary insured and KEB as a dependent
child on the application. That application was dated July 17, 2013. The second
document in Exhibit B was a letter from Secured Care to KEB thanking her for
purchasing the “Secured + Insurance Plan.” The last document in Exhibit B was a
Schedule of Benefits, which identified Father as the insured and KEB as a covered
dependent. The Schedule of Benefits provided a policy effective date of July 18, 2013,
and contained a chart showing coverage and benefit amounts under the policy.
[¶26] The Schedule of Benefits included in Exhibit B was an excerpt from the health
insurance policy that was ultimately submitted to the court along with Father’s new trial
motion. We are at a loss to understand why Father did not submit a copy of the entire
health insurance policy during the show cause hearing, and it certainly left the court in
the unenviable position of deciphering those documents that were submitted.
Nonetheless, we cannot conclude, based on the record the court had before it at the show
cause hearing, that Father’s contempt had been proven with clear and convincing
evidence. The evidence instead showed that by the end of July 2013, over two months
before the show cause hearing, Father had obtained the required insurance. We therefore
reverse that portion of the district court’s Order on Motion for Contempt that held Father
in contempt for failing to provide insurance for KEB and/or proof of insurance.4
4
The record also contained a document that was entered into evidence as Defendant’s Exhibit D. This
document is a letter to KEB from Health Insurance Innovations and welcomes KEB as a member of the
“Extra Care Package.” This appears to be the “discount club” that caused some confusion. The letter
does include attached cards that state “THIS IS NOT INSURANCE.” While this is a confusing
document, and it would have been helpful to have testimony explaining the letter and its referenced
program, it does not by its terms negate the insurance documents that were submitted as Exhibit B.
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B. Attorney Fees Order
[¶27] Father argues that if this Court reverses the district court’s contempt findings, we
must also reverse the award of attorney fees because the district court tied that award to
its contempt findings. We disagree.
[¶28] The district court did indeed find that the fees award was appropriate because of
the contempt findings. The court also found, however, that fees should be awarded
pursuant to Wyo. Stat. Ann. § 20-2-111 because Mother was required to bring her
contempt motion as a means of enforcing the divorce decree. In its decision letter
addressing Mother’s application for attorney fees, the court explained, in part:
“The decision to award attorney’s fees rests within the
sound discretion of the district court when such fees are
authorized by statute.” Russell v. Russell, 948 P.2d 1351,
1355 (Wyo. 1997), citing Rocha v. Rocha, 925 P.2d 231, 234
(Wyo. 1996). Wyo. Stat. Ann. § 20-2-111 states that
[i]n every action brought for divorce, the court may
require either party to pay any sum necessary to enable the
other to carry on or defend the action and for support and
the support of the children of the parties during its
pendency. The court may decree costs against either party
and award execution for the costs, or it may direct costs to
be paid out of any property sequestered, in the power of
the court, or in the hands of a receiver. The court may
direct payment to either party for such purpose of any sum
due and owing from any person.
The Wyoming Supreme Court has said that the above
section allows a party to obtain attorney’s fees for the original
divorce action, as well as any attorney’s fees incurred in
enforcing the divorce decree. Burnett v. Steeley, 190 P.3d
132, 139, 2008 WY 94, ¶ 33 (Wyo. 2008).
This Court has discretion to award attorney’s fees
where it sees fit and when it is allowed by statute. The Court
finds that it is allowed under Wyo. Stat. Ann. § 20-2-111 to
grant attorney’s fees when a party must bring an action to
enforce a divorce decree. [Mother] had to do that and fees are
appropriate.
....
The Court finds [Father] has purged himself of the
contempt. However, this Court also finds [Mother] is entitled
to attorney’s fees for costs associated with the contempt of
court issue. [Mother’s Attorney] submitted an [Affidavit of
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Costs] on December 11, 2013 and an itemized billing sheet
showing the time spent on the Motion for Order Show Cause
in the amount of $3,288.00.
The Court finds [Father] is to pay [Mother] $3,288.00
for attorney’s fees incurred enforcing the Decree of Divorce
within sixty (60) days of the date this Decision Letter is filed.
[¶29] Although we have reversed the district court’s orders of contempt in relation to the
visitation and health insurance portions of the court’s Order on Motion for Contempt, we
find no abuse of discretion in the court’s award of attorney fees to Mother. Regardless of
whether there was the required clear and convincing evidence to support a contempt
holding, the record does show that Mother was forced to file her motion in order to
enforce the divorce decree and the parties’ Agreement. The record shows that although
the parties’ divorce was finalized by February 2013, Father had not obtained health
insurance for KEB by the time Mother filed her contempt motion in July 2013. Indeed, it
was not until after the show cause motion was filed that Father took steps to obtain the
insurance. Additionally, the contempt motion was required to enforce Mother’s right
under the Agreement to use outbuildings associated with the marital residence. Under
these circumstances, the district court did not abuse its discretion in ruling that Mother
was entitled to an award of attorney fees. See Burnett v. Steeley, 2008 WY 94, ¶ 33, 190
P.3d 132, 139 (Wyo. 2008) (“There is no question that [Wyo. Stat. Ann. § 20-2-111]
allows a party to obtain reimbursement of attorney’s fees incurred in original divorce
actions as well as proceedings to modify or enforce divorce decrees.”).
CONCLUSION
[¶30] We conclude that the district court erred in holding Father in contempt for failing
to exercise his visitation rights and in ordering Father to pay Mother’s related day care
expenses. We further conclude that the court erred in holding Father in contempt for
failing to obtain insurance and/or provide proof of that insurance. We also conclude,
however, that the court properly required Father to pay attorney fees Mother incurred
when she was required to seek court enforcement of the divorce decree. Affirmed in part
and reversed in part.
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