Commentary: Ruling sets bar for full payment

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Last year in this column, I raised the question of whether the costs for violating a court order, including attorney fees, would constitute “continuing contempt” in order to assure that a victim would be made whole. (“When is Contempt Continuing?” Wisconsin Law Journal, Aug. 24, 2009.)

While not directly addressing the issue of continuing contempt, a recent decision by the Wisconsin Court of Appeals does recognize the goal of making the victim whole and provides authority for trial courts to do so.

A Full-Fee Award

In Rand v. Rand, No. 2009AP2241 (Wis. Ct. App. June 29, 2010) (recommended for publication), the appellate court affirmed the order rendered by Milwaukee County Circuit Court Judge Mary M. Kuhnmuench, which required Richard Rand to pay his former wife, Marcy, $47,190 in attorney’s fees and costs resulting from the circuit court’s determination that Richard was in contempt of court.

Marcy sought to hold her former husband in contempt for failing to report increases in income that would affect his ability to pay child support, as well as seeking an increase in child support and relief for various other alleged misconduct. After being found in contempt and ordered to pay $40,000 in attorney fees, Richard appealed.

In a one-judge decision, the Court of Appeals reversed and remanded to the trial court to better explain the basis for the award. Kuhnmuench, who took over the case on remand, not only did a better job of explaining her reasoning, but also increased the fee award to $47,190.

Apparently not having learned his lesson, Richard appealed again. Now, not only does he have to pay the increased award, but also Marcy’s attorney fees for the fee hearing and the appeal, as well.

In the instant appeal, Richard claimed that the circuit court erred by giving Marcy the full fee-award rather than limiting it to only the fees incurred in connection with Richard’s failure to report an increase in his income. Writing for the three-judge panel this time, Judge Ralph Adam Fine held that the award was appropriate as the fees arose “out of a common core of facts.”

The appellate court also rejected Richard’s argument that the fee award should be reversed since Marcy did not get everything she sought in that action. However, the court held that a “losing party is not entitled to a reduction in attorney’s fees for time spent on unsuccessful claims, if the winning party achieved substantial success and the unsuccessful claims were brought and pursued in good faith” especially where all of the “claims arise out of a common core of facts.”

Finally, the appellate court rejected Richard’s argument that the fees were pumped up because Marcy’s lawyers over-tried the contempt matter. The Court of Appeals found that Richard had not credibly shown how or why the circuit court’s findings that he, and not Marcy, was the cause of whatever over-trying there was in this matter were clearly erroneous.

Ticking Time Bombs

This opinion is noteworthy for two reasons.

First, it is the first reported decision on a “continuing contempt” issue since the landmark case Frisch v. Henrichs, 2007 WI 102, 304 Wis.2d 1, 736 N.W. 2d 85. Lawyers, if you haven’t warned your payor-clients to provide financial information to their ex-spouse on an annual basis, make sure your malpractice coverage is current. There are innumerable ticking time bombs out there as many (most? all?) support payers have ignored this requirement over the years.

Second, this holding is consistent with a theme which I have stressed in this column (and elsewhere) over the years: Someone who violates a court order should have to pay all of the costs incurred by the party victimized by the violation. It has always been difficult to understand why courts will occasionally order only partial costs — and sometimes, none at all.

One common tactic by someone attempting to avoid responsibility is to try to deflect attention by attacking the other side on the theory that the best defense is a good offense. This is what appears to have been Richard’s strategy in Rand when he attacked Marcy’s lawyers for overlitigating the case. Failure to award 100 percent of the costs in a contempt action effectively re-victimizes the innocent party. This decision, while not making it mandatory for a trial court to ensure that all effects of disobeying a court order will be remedied, at least gives authority for doing so.

Let’s hope trial courts so utilize such authority, since punishing disobedience of court orders is the best means to prevent recidivism.

Gregg Herman is a shareholder with Loeb & Herman S.C. in Milwaukee, which practices exclusively family law. Herman can be reached via e-mail to [email protected].