JENNIFER L. HILLER, Plaintiff and Appellee,
JAMES D. HILLER, Defendant and Appellant.
CONSIDERED ON BRIEFS ON AUGUST 27, 2018
FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT MOODY
COUNTY, SOUTH DAKOTA THE HONORABLE VINCENT A. FOLEY RETIRED
F. KOOISTRA SHARLA B. SVENNES of Myers Billion, LLP Sioux
Falls, South Dakota Attorneys for plaintiff and appellee.
KENNETH M. TSCHETTER of Tschetter & Adams Law Office,
P.C. Sioux Falls, South Dakota Attorneys for defendant and
After finding James Hiller in contempt for violating the
provisions of a visitation order, the circuit court ordered
James to pay attorney fees incurred by his former spouse,
Jennifer Hiller. In an ensuing proceeding to change custody,
the court ordered James to pay additional attorney fees to
Jennifer along with expert witness fees. James appeals both
orders. We affirm in part, reverse in part, and remand.
and Procedural History
James and Jennifer were divorced in 2013 following a court
trial. One area of evidence developed during the
trial concerned Jennifer's relationship with Wayne Lloyd,
a family friend who was also a registered sex offender
because of his 1994 conviction for raping a 15-year-old girl.
The court's original custody determination granted the
parties joint legal and physical custody of their two minor
children, S.H. and T.H. However, the court required the
presence of another adult whenever Lloyd was around the
At some point after the divorce, Jennifer began dating Lloyd,
and in November of 2013, she filed a motion to lift the
supervision requirement. At the hearing, James testified that
S.H. was uncomfortable being around Lloyd. The court found
Lloyd posed a risk to S.H. because she was similar in age to
Lloyd's rape victim and could be susceptible to
manipulation. The court refused to lift the supervision
requirement as to S.H and also denied James's oral motion
to modify the custody order to prohibit Lloyd from being
present when S.H. stayed overnight with
In March of 2015, Jennifer announced her plan to move in with
Lloyd. S.H., who was then 15 years old, refused to attend
visitation with her mother, and both parties sought court
intervention. The circuit court ordered the parents to
participate in a custody evaluation with Shanna Moke. The
court also ordered an interim visitation schedule that
allowed Jennifer two evenings per week with S.H. but required
that Lloyd not be present. S.H. attended these visits with
Jennifer. The court further ordered Jennifer and S.H. to
attend family counseling.
When Jennifer ultimately moved in with Lloyd in August of
2015, S.H. continued her refusal to attend visits, prompting
James to seek to modify visitation. However, the parents
entered into a visitation agreement based upon Moke's
recommendations. The circuit court entered an order in
December of 2015 consistent with the parties' agreement.
The order established a two-week transition period during
which Lloyd would not be present for visits between Jennifer
and S.H., followed by visits at Jennifer's home where
Lloyd could be present. The order required James to transport
S.H. to Jennifer's residence and continued the
supervision condition for contact between S.H. and Lloyd.
Finally, the order required Jennifer and S.H. to attend
counseling with Dr. Gretchen Hartmann and imposed an
additional obligation upon James to "become involved in
therapy upon Ms. Hartmann's direction."
S.H. attended the initial scheduled visitations with
Jennifer. However, during a visit on November 19, 2015, S.H.
attempted to leave because Lloyd had arrived. S.H. refused to
attend future visits.
On December 28, 2015, Jennifer filed a motion asking the
circuit court to find James in contempt. She alleged that
James willfully disregarded the visitation order by refusing
to discipline S.H. for not attending visits, by failing to
bring S.H. to visits, and by alienating S.H. Jennifer also
claimed James had indicated he would refuse to follow the
visitation order because he disagreed with the provision
allowing Lloyd to be present.
At a hearing on January 7, 2016, Dr. Hartmann testified that
her counseling sessions with James, Jennifer, and S.H. led
her to conclude James was alienating S.H. from Jennifer.
Although James said he wanted S.H. to have a relationship
with Jennifer, Dr. Hartmann noted he refused to impose any
consequences on S.H. if she refused to visit Jennifer. Dr.
Hartmann opined that James's failure to assure these
consequences resulted in parental alienation and subverted
Jennifer's authority. In Dr. Hartmann's view, this
type of parental alienation would severely damage the
parent-child relationship. She further expressed her belief
that the problem was not about Lloyd, but rather "the
conflict and the disagreement between the parents." The
circuit court did not rule on Jennifer's contempt motion.
Instead, it emphasized to James the need to comply with the
December 2015 order regardless of S.H.'s view of Lloyd.
During a second hearing in February, Dr. Hartmann testified
that James was still not attempting to enforce consequences
for S.H.'s conduct. She opined that parental alienation
was still present and that court-ordered family reunification
therapy would not work until James started to facilitate
visitation. James testified that he encouraged S.H. to see
Jennifer but that he would not force her to go because she
was afraid of Lloyd.
At the conclusion of the hearing, the circuit court found
James in contempt. The court found that James was "a
passive/aggressive liar in these proceedings[.]" In that
regard, the court observed that James was "just happy to
. . . say [S.H.] should do something" but then not
enforce the directive. The court considered James's
testimony "incredibly deceitful." It further
assessed Dr. Hartmann's testimony as "incredibly
credible" and determined Jennifer's testimony was
"biased, yet credible."
The court entered written findings of fact consistent with
its oral findings. The court found that James knew of the
December 2015 order, that he had the ability to comply with
it, and that he disregarded its provisions when "he
failed to enforce the [c]ourt's Order for the ordered
January visitation." As a consequence, the court ordered
James to prepare and deliver to the court a quitclaim deed
for an undivided 1/64th interest in a parcel of his farmland.
The court also directed James to pay Jennifer $4, 082 in
reasonable attorney fees incurred by "her having to
bring this action."
James later asked the court to reconsider the sanction
requiring him to execute and deliver a quitclaim deed for a
portion of his farm property. However, James did not ask the
court to reconsider its finding of contempt for failing to
comply with the court's order. In fact, he candidly
stated, "With the benefit of hindsight, [James's]
non-compliance with the [c]ourt's parenting time order
should be somewhat ...