Opinion
Supreme Court No. S-11377.
January 25, 2006.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Elaine M. Andrews, Judge, Superior Court No. 3AN-91-10424 Civil.
Richard Hermosillo, pro se, Anchorage, Appellant.
No appearance by Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
This case arises from the 1982 divorce of Richard Hermosillo and Mary Robertson, and the ensuing dispute over custody of their son, Paul Robertson. The last time this court heard the case, it vacated an order offsetting child support owed by Hermosillo and visitation sanctions owed by Robertson. On remand, the superior court awarded Hermosillo $1,250 for amounts remaining from previous appeals but denied his visitation sanctions claim. Hermosillo appeals. Because the superior court legitimately exercised its power of contempt with regard to the sanctions allegedly owed by Robertson, we affirm its decision not to award Hermosillo $200 per day for each day of missed visitation in July 1995 and July 1996. But because the superior court appears not to have resolved other statutory claims raised by Hermosillo, we remand to the superior court for resolution of the statutory claims. We need not address Hermosillo's remaining tort claims, if any, because those claims are not before us.
Hermosillo v. Hermosillo, 962 P.2d 891 (Alaska 1998).
II. FACTS AND PROCEEDINGS
A. Proceedings Until 1996
Richard and Mary Hermosillo (now Mary Robertson) were divorced in 1982. After the divorce, the superior court ordered Hermosillo to pay child support for Paul, who was born in 1978, the only child from the marriage. In 1991 the superior court issued an order establishing a schedule for supervised visitation between Hermosillo and his son and prohibiting either parent from removing Paul from the state without the written authorization of the other parent or the court.
Id. at 892.
Id.
Robertson removed Paul from the state in December 1993, in violation of the standing custody order. In May 1994 Superior Court Judge Elaine M. Andrews issued a warrant for her arrest, and ordered her to return Paul to the state of Alaska.
Id.
The order stated prospectively that Robertson would "be assessed civil penalties of $200 a day" if she failed to bring Paul to Alaska by July 1, 1994, and imposed attorney's fees of $250 on Robertson.
In October 1994 Judge Andrews issued an order quashing the warrant for Robertson's arrest, awarding Robertson full custody and granting Hermosillo visitation during the month of July every year. Transportation for these visits was to be subsidized by Robertson. The superior court warned Robertson that failure to comply with this order would result in future sanctions of $200 per day of missed visitation:
Each day of this visitation that is not met[,] either as a result of Ms. Robertson's failing to provide transportation funds or Paul's refusal to go, shall be deemed a violation of the court ordered visitation. The only penalty stemming from that shall be a $200 sanction for each day of missed visitation which shall be credited toward child support arrearages that Mr. Hermosillo may have. Once the child support arrearages are satisfied by the sanctions against Ms. Robertson, the sanctions shall cease to exist.
But Paul did not return to Alaska for visitation with his father in July 1995 or July 1996. B. The October 1996 Order
Hermosillo, 962 P.2d at 892.
Hermosillo subsequently filed a Civil Rule 60(b) motion for relief from the October 1994 order. In addition to seeking damages and sanctions, the motion addressed a separate dispute between Hermosillo and the Child Support Enforcement Division (CSED). The superior court denied the motion with regard to custody and visitation, and held that Hermosillo was indebted to both the state and Robertson. As it had warned Robertson in October 1994, the superior court imposed sanctions on Robertson of $200 per day for the missed visitation in July 1995 and July 1996, for a total of $12,000. This amount was to be offset by the child support debt Hermosillo owed Robertson, but Robertson was not required to pay any amount exceeding the debt: "If the amount of the visitation sanctions . . . is greater than the debt owed to Mary Robertson, those sanctions shall cease to exist."
Id. at 892-93.
Id. at 893.
C. The 1998 Decision
Hermosillo, Robertson, and CSED all sought reversal of the 1996 order. Robertson and CSED contended that visitation sanctions could not be used to offset child support obligations. Hermosillo contended, among other arguments, that the superior court erred in holding that the visitation sanctions would cease when the debt to Robertson had been cancelled out by the offsets against child support. In response to Robertson's argument that the visitation sanctions imposed were greater than those authorized by statute, Hermosillo asserted that the sanctions were imposed under the court's power to punish contempt of court, not the statute authorizing visitation sanctions to be paid to a non-custodial parent. We concluded that the superior court had erred by offsetting the child support arrears against the visitation sanctions. Although our opinion remanded for a determination of Hermosillo's child support obligation and debt to the state, it neither addressed nor directed the trial court to resolve the questions whether the visitation sanctions exceeded the amount authorized by statute or whether they were imposed under the superior court's contempt-of-court power. D. Hermosillo's Settlement with CSED
Id. at 894-95. Our holding was based on AS 25.27.080(c), which provides that "[t]he determination or enforcement of a duty of support is unaffected by any interference by the custodian of the child with rights of custody or visitation granted by a court." Id.
Hermosillo, 962 P.2d at 895.
In December 2002 Hermosillo reached a settlement with CSED. In exchange for CSED's agreement to "waive all child support arrears which it believes are or may be due . . . from Mr. Hermosillo" and pay him $2,500, Hermosillo waived "any and all claims . . . which have been asserted or could have been asserted against the State of Alaska and CSED . . . relating to [his] child support obligation for Paul Hermosillo. . . ." Because of this settlement, CSED is not a party to the present appeal. E. Hermosillo's Claims on Remand
After initially entering an appearance to ensure that this appeal had no effect on the settlement, CSED filed a "Notice of Non-Participation."
After settling with CSED, Hermosillo brought a Rule 60(b)(1) motion in the superior court. This motion included a claim against his ex-wife for over $50,000 stemming from visitation sanctions, damages for intentional infliction of emotional distress, and alleged violations of the federal Parental Kidnapping Act. The superior court noted that Robertson owed Hermosillo $1,250 from a 1994 order that was not vacated by this court (and had not been discharged in Robertson's Florida bankruptcy proceeding) but denied Hermosillo's visitation sanctions claim. The superior court concluded that its 1996 order imposing sanctions had been vacated by this court in 1998, but even if it had not been, Hermosillo's claim could not succeed because "the order, by its own terms[,] included that `if the amount of visitation sanctions is greater than the debt owed to Mary Robertson, those sanctions shall cease to exist.'"
Hermosillo does not appear to be contesting this portion of the superior court's judgment.
Judge Andrews notes in an "Order Staying Action," filed in March 2003, that Robertson filed for bankruptcy in Florida, and states that the bankruptcy raises a "[s]ignificant jurisdictional issue," and the final order awards Hermosillo "debts of $1250 [that] were not discharged in the bankruptcy proceeding." But neither order discusses whether Hermosillo's tort claims were discharged, or are otherwise barred, by Robertson's bankruptcy. Hermosillo insisted at oral argument that his claims were not discharged, but he has presented no evidence to this effect.
F. The Superior Court's Mention of Claims Dismissed by Judge Joannides
In her order on remand, Judge Andrews noted that a different superior court judge, Judge Stephanie E. Joannides, had already dismissed Hermosillo's claims for emotional distress and statutory damages under the Federal Parental Kidnapping Act and stated that "[t]o the extent that the case [before Judge Joannides] was reasserting claims for visitation sanctions issues that remained viable in [the present case], they have been consolidated and addressed in the remand and settlement and in this order." The order issued by Judge Joannides does not mention any tort claims raised by Hermosillo; rather, it dismisses only Hermosillo's claims with regard to "statutory damages as well as costs and fees" and "the enforcement of sanction orders," and directs him to bring those claims in the court that originally issued the orders.
The decision that Hermosillo is appealing was entered in 3AN-91-10424; the previous decision, which the superior court describes as "dismiss[ing]" Hermosillo's tort claims, was entered in 3AN-97-5577. Hermosillo brought similar claims in both cases.
In the pleadings submitted to Judge Joannides, Hermosillo sought visitation sanctions not only for July 1995 and July 1996, but also for other alleged violations of court orders. These included 147 missed visitation days from 1990 to 1993 and fifteen days of denied visitation in July 1994. Judge Andrews did not explicitly address these claims.
III. DISCUSSION
A. Standard of Review
We review a trial court's denial of a Rule 60(b) motion for abuse of discretion. "An abuse of discretion is found if we are left with the definite and firm conviction on the whole record that a mistake has been made." Questions regarding personal jurisdiction are reviewed de novo, as "jurisdictional issues are questions of law subject to this court's independent judgment." Because Hermosillo is proceeding pro se, his pleadings "should be held to less stringent standards than those of lawyers." B. Sanctions for July 1995 and July 1996 1. Basis for the sanctions stemming from the 1996 order
Wright v. Wright, 22 P.3d 875, 878 (Alaska 2001).
Id.
S.B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 61 P.3d 6, 10 (Alaska 2002).
DeNardo v. Calista Corp., 111 P.3d 326, 330 (Alaska 2005).
Hermosillo argues that the superior court erred by capping the visitation sanctions of $200 per day at the amount of Hermosillo's debt to Robertson. But it is not clear from the superior court's orders that sanctions were awarded under AS 25.20.140(b), which mandates specific sanction amounts for violating visitation orders. Rather, the sanctions appear to have been based on the court's "inherent power to punish for contempt." a. Statutory cause of action
As Hermosillo correctly notes, his settlement with CSED does not address the sanctions issue, as it only involves "child support arrears" and "claims . . . against the state of Alaska and CSED."
Continental Ins. Cos. v. Bayless Roberts, Inc., 548 P.2d 398, 408 (Alaska 1976); Jerrel v. State, 765 P.2d 982, 983 (Alaska App. 1988).
Alaska Statute 25.20.140 permits a non-custodial parent with visitation rights to bring an action for damages against a custodial parent when the latter violates a court's visitation order. Once liability has been established, the trial court has no discretion as to the amount of damages:
AS 25.20.140(a).
The amount of damages recoverable under this section is $200 for each failure of the custodian, wilfully and without just excuse, to permit visitation with the child for substantially the length of time and substantially in the same manner as specified in the court order. This amount may not be increased or decreased once liability has been established. The custodian is not liable for more than one failure in respect to what is, under the court order, a single continuous period of visitation. The prevailing party in an action commenced under this section is entitled to recover a reasonable attorney fee.
AS 25.20.140(b).
If this statute was the basis for the visitation sanctions, then the superior court had no discretion to cap Robertson's liability. The amount of sanctions could be no lower, and no higher, than $200 for each "single continuous period of visitation" denied by Robertson. However, as Robertson and CSED argued in the first appeal of the 1996 order, a "single continuous period of visitation" in the context of the court's order would appear to have been one month, meaning that Hermosillo could recover only $400 for the two missed periods of visitation. Hermosillo argued in response to this argument in the first appeal that the sanctions were not imposed under AS 25.20.140, but rather under the court's inherent power to punish contempt.
Id.
Hermosillo's original characterization of Judge Andrews's order as a contempt order is strongly supported by two factors: First, the visitation sanctions statute is triggered by the non-custodial parent's decision to bring a claim under the statute. In the present case, the court imposed the sanctions on its own initiative, rather than on the basis of any action brought by Hermosillo. Second, visitation sanctions under the statute are imposed after a willful and unexcused violation of a visitation order has occurred. Judge Andrews's October 1994 order was prospective and coercive, warning Robertson of sanctions that would be imposed should she violate the visitation order in the future. This is how a civil contempt order is normally structured. Thus, we review the order in light of our law on contempt.
b. Contempt of court
Alaska trial courts have the authority to "insure proper efficiency and discipline by exercise of . . . the power of contempt." Contempt sanctions can be either civil or criminal, and the main difference between the two types of contempt, other than the greater safeguards available to criminal defendants, is the purpose of the sanction: Criminal contempt is "primarily punitive," whereas "the principal purpose of civil contempt is to coerce future conduct." As noted above, the sanctions in this case appear to be coercive civil contempt sanctions, as they warned Robertson in advance that she would be required to pay $200 per day of missed visitation, capped by the amount of Hermosillo's child support debt to her.
Jerrel, 765 P.2d at 983.
Diggs v. Diggs, 663 P.2d 950, 951 n. 2 (Alaska 1983).
Although civil contempt sanctions are also regulated by statute and court rule, we have held that Alaska courts have the "inherent power" to sanction parties for contempt "when it is necessary to preserve the dignity, decorum and efficiency of the court." As we have recognized, "statutory enactments which endeavor to limit the necessary contempt powers of the Alaska superior and supreme courts are not binding," and courts can go beyond them if "they fetter the efficient operation of the courts or impair their ability to uphold their dignity and authority."
See AS 09.50.050 (providing that "[w]hen the contempt consists of the omission or refusal to perform an act which is yet in the power of the defendant to perform, the defendant may be imprisoned until the defendant performs it"); AS 09.50.040 (permitting a trial court to issue a judgment in favor of any party who experiences a loss or injury because of another party's contempt); see also Doyle v. Doyle, 815 P.2d 366, 372 (Alaska 1991) (holding that if the trial court issues a judgment based on civil contempt, "there must be a correlation between the aggrieved party's actual damages and costs and the amount assessed as damages").
A trial court issuing sanctions for contempt must follow the procedures outlined in Alaska Civil Rule 90. Under this rule, a trial court must, "upon a proper showing on ex parte motion supported by affidavits . . . either order the accused party to show cause at some reasonable time . . . why the accused party should not be punished for the alleged contempt, or . . . issue a bench warrant for the arrest of such party." Alaska R. Civ. P. 90(b). The trial court does not appear to have followed this procedure rigorously, although it did issue a bench warrant for Robertson when it held her in criminal contempt in May 1994. (The court quashed this warrant in October 1994.)
Continental Ins. Co., 548 P.2d at 409.
Id. at 410-11.
Id. at 411.
Our cases do not address the question whether the inherent power of contempt permits a court to offset contempt sanctions with another party's debt, but they do imply that an order for contempt sanctions can be undone entirely by the judge. Sanctions for civil contempt are generally designed to coerce the defendant to engage in certain future conduct, and one characteristic of such sanctions is that a defendant has "a continuous opportunity . . . to purge the contempt" by complying with the court's demands. Indeed the 1994 order, in which the superior court threatened to impose sanctions of $200 per day unless Robertson permitted Hermosillo to visit Paul, appears to be just such an order, as Robertson could have avoided the sanctions by permitting the visitation. We have no cases forbidding courts from retroactively determining that an instance of civil contempt is purged and, the last time this case was before us, Hermosillo himself argued that the sanctions imposed on Robertson were based on the court's power to punish contempt. For these reasons, we hold that the superior court's decision to vacate the sanctions once the child support debt was satisfied was a legitimate exercise of the court's inherent power of contempt.
Diggs, 663 P.2d at 951.
2. Unaddressed visitation sanction claims
In his action before Judge Joannides, Hermosillo also sought statutory damages for 147 missed visitation days from 1990 to 1993 and fifteen days of denied visitation in July 1994. In his appeal, he also argues that he is entitled to statutory visitation sanctions for the missed visitation of July 1995 and July 1996. Although the superior court in the present case consolidated all "visitation sanctions issues that remained viable," it did not address these claims. Searching the record to determine whether, and on which occasions, Robertson violated the custody orders "would require us to weigh the evidence and thus improperly assume the role of the trial court." For that reason, we remand for rulings on these claims. On remand, the superior court should determine: (1) which, if any, of these claims are viable; and (2) the amount of damages, if any, required under AS 25.20.140. This second inquiry will entail determining what constitutes a continuous period of visitation with potential assessment of $200 in sanctions for each missed period of visitation. C. Hermosillo's Tort Claims
Mackie v. Chizmar, 965 P.2d 1202, 1207 (Alaska 1998).
AS 25.20.140(b).
Hermosillo also argues that the superior court erred in determining that it lacked personal jurisdiction over Robertson with regard to the new tort claims. But these claims are not before us because they appear not to have been addressed by either Judge Joannides or Judge Andrews. The summary judgment order issued by Judge Joannides did not mention the tort claims. The superior court order in the present case mentioned them, but did not rule on them. If Hermosillo has tort claims that remain unaddressed, the court before which they were initially brought should resolve them. But without a lower court ruling, an appeal of these issues is premature.
Moreover, despite Hermosillo's argument to the contrary, Judge Andrews's statement that Hermosillo "will also be required to persuade a court that he is not barred by the statute of limitations" is not before us for review. As Hermosillo concedes, the superior court "did not actually find that the statute of limitations barred . . . [any of his] claims." Rather, the court speculated about what Hermosillo would have to prove in a hypothetical future proceeding. The superior court's musings about the statute of limitations were therefore dicta, the correctness of which this court need not reach. See VECO, Inc. v. Rosebrock, 970 P.2d 906, 922 (Alaska 1999) (defining dicta as "[o]pinions of a judge which do not embody the resolution or determination of the specific case before the court") (citing BLACK'S LAW DICTIONARY 454 (6th ed. 1990)).
Cf. Brock v. Rogers Babler, Inc., 536 P.2d 778, 784 (Alaska 1975) (finding the proceedings about a particular issue below to be "ambiguous and unclear," noting that "[n]o formal order on this issue has been entered," and remanding). Although a "formal order" has been issued in the present case, that order does not appear to resolve the tort claims. And if Judge Joannides ruled on the tort claims, a timely appeal from that judgment was required. Cf. Roeckl v. F.D.I.C., 885 P.2d 1067, 1075 n. 11 (Alaska 1994) (declining to address an issue on which the superior court had not ruled).
IV. CONCLUSION
We therefore AFFIRM the superior court's order with regard to the contempt sanctions, but REMAND for resolution of any and all claims that remain unresolved.