The trial court improperly held the plaintiff-mother in civil and criminal contempt, the Michigan Court of Appeals has ruled, reversing an order that she pay 100 percent of parental reunification costs.
The plaintiff in Shindorf v Shindorf (Docket No. 355083) had divorced the defendant-father, who abused her and their three children. The Allegan County Circuit Court awarded the defendant supervised parenting time. A mental health professional later recommended that the defendant and the children begin reunification efforts. The trial court subsequently found that the plaintiff was interfering with those reunification efforts in numerous ways, and held her in civil and criminal contempt. The trial court also ordered the plaintiff to pay a larger portion of the children’s counseling costs.
The plaintiff appealed. She argued the trial court abused its discretion by finding her in contempt and ordering that she pay 100 percent of the parental reunification costs.
The Court of Appeals agreed, reversing the trial court’s orders.
“The trial court should, minimally, have recognized that progress was being made and followed through on its promise to reduce mother’s share of the reunification therapy costs by a minimal amount,” the Court of Appeals said. “However, in light of the father’s egregiously unacceptable attitude that mother should just ‘suck it up,’ the trial court’s own contribution to the children’s additional traumas and the ensuing delay in reunification, and the trial court’s failure to afford mother reasonable due process, we order that mother’s share of the reunification costs should be reduced to 50% ….”
Judges Amy Ronayne Krause, Thomas C. Cameron and Michelle M. Rick were on the panel that issued the unpublished decision. Case background and procedural details are set forth in the panel’s 21-page opinion.
No Contemptuous Conduct
On appeal, the plaintiff argued the trial court abused its discretion by:
“We agree,” the Court of Appeals said.
Regarding proper notice, the Court of Appeals explained that the trial court sua sponte entered an order to show cause on April 22, 2020. “That order unequivocally stated that mother was ordered to show cause why she should not be held in criminal contempt only. The order was on a form, and in two separate places, the trial court placed a check next to ‘criminal’ and no check next to ‘civil.’”
Moreover, the trial court’s “admonishments” to the plaintiff throughout the proceedings “seemingly indicated that it wanted both to punish her for not complying with its orders and to compel her to comply with its orders,” the Court of Appeals observed. “However, the trial court warned that it ‘may use its contempt powers’ if mother failed to comply with its orders but provided little detail.”
The trial court “seemingly used the threat of contempt as an inducement to mother, but the clear import of its statements, consistent with checking only ‘criminal’ in its order, was that intended any actual use of its contempt powers to be punitive,” the Court of Appeals said. “Mother was not provided with adequate notice that the trial court might also consider civil contempt.”
As for the plaintiff’s willful violation of trial court orders, the Court of Appeals examined the proceedings in great detail. “We first emphasize that the trial court only provided mother with notice of criminal contempt proceedings, which, as discussed, entitled mother to the presumption of innocence and required proof of willful disobedience beyond a reasonable doubt. We also reiterate that the trial court was clearly under the apprehension that the gap in the children’s therapy at the end of 2019 was in violation of a court order that we cannot find in the record. In any event, there is no evidence to contradict mother’s testimony that the gap was accidental.”
In addition, a mental health professional “opined that mother was unintentionally interfering with the process because she was opposed to it, but that conclusion was entirely speculative and, importantly, was evidence that any disobedience by mother to the trial court’s orders was not willful,” the Court of Appeals observed.
The plaintiff “repeatedly told the trial court, accurately, that the children’s counselors had unwaveringly believed the children were not ready to begin the reunification process,” the Court of Appeals explained. “The evidence showed that mother was nevertheless participating in therapy, even if she did not necessarily believe it was doing any good. Mother brought the children to their therapy sessions, other than a gap that was not actually a violation of any order we can find and that no actual evidence shows was anything other than inadvertent. Although persons must comply with court orders irrespective of their belief in the correctness of such orders, a person cannot be guilty of contempt for failing to achieve the impossible.”
Therefore, “[t]here is simply no competent evidence in the record to support a finding that mother willfully disobeyed or disregarded any court orders,” the Court of Appeals said. “Rather, the evidence shows that the trial court’s insistence on forcing a particular timetable and punishing mother into, as father’s counsel literally and inappropriately stated, ‘suck[ing] it up,’ caused the children further trauma and is the real cause of the delays in reunification. The trial court erred by holding mother in contempt.”
The Court of Appeals, in a footnote to its opinion, further emphasized that it had “difficulty understanding the trial court’s apparent belief that it could sanction mother into trusting that the court was actually interested in her or the children’s best interests, especially when the trial court repeatedly demonstrated the opposite.”
The plaintiff also argued the trial court improperly ordered her to pay 100 percent of the reunification therapy costs.
“In her application for leave to appeal, mother did not challenge the trial court’s September 19, 2019, order imposing 70% of the [therapy] costs upon mother, nor did she challenge the trial court’s February 19, 2020, order imposing 100% of the [therapy] costs upon mother,” the Court of Appeals pointed out. “Our grant of leave to appeal was ‘limited to the issues raised in the application and supporting brief.’ We nevertheless take note of the fact that the trial court’s September 19, 2019, order was entered following a rushed hearing and the trial court’s refusal to permit mother to present testimony …. Although the propriety of that order is not directly before us, we think the order was minimally not adequately thought through ….”
The Court of Appeals noted the trial court’s February 19, 2020, order was entered after it denied having refused the plaintiff to present testimony from Dr. Wolff, who was supervising the children’s counseling. “Nevertheless, although we are constrained from touching the trial court’s September 19, 2019, and February 19, 2020, orders, the trial court’s remarks made it clear that it intended to consider reducing mother’s share of the [therapy] costs if it saw what it perceived to be ‘progress.’ The trial court improperly considered only whether the children complied with the court’s and father’s demanded timetables for overcoming the trauma inflicted by father, rather than whether mother was actually endeavoring to facilitate reunification. Notably, all of the children had shown progress. … Incongruously, the trial court even expressed pleasure that mother was willing to engage in co-parenting therapy with father.”
Based on the foregoing, “[w]e hold that the trial court abused its discretion by continuing its order requiring mother to pay 100% of the cost of reunification therapy,” the Court of Appeals said. “The trial court should, minimally, have recognized that progress was being made and followed through on its promise to reduce mother’s share of the reunification therapy costs by a minimal amount. ... [W]e order that mother’s share of the reunification costs should be reduced to 50% effective as of April 23, 2020. We leave it to the trial court’s discretion how best to effectuate mother’s reimbursement for overpayment. The trial court’s orders holding mother in contempt and continuing mother’s responsibility for 100% of the cost of reunification therapy are reversed, and the matter is remanded for proceedings consistent with this opinion.”