S.D. justices say one of their own erred

Capitol News Bureau
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PIERRE, S.D. (KELO) — The South Dakota Supreme Court’s newest member failed to properly handle a contempt question in a custody dispute two years ago while he was circuit judge.

The state’s high court released the ruling Thursday against Justice Scott Myren. Governor Kristi Noem chose him in October to join the Supreme Court. He succeeded then-Chief Justice David Gilbertson, who retired in January.

Justice Patricia DeVaney wrote the decision against Myren. Joining her were new Chief Justice Steven Jensen, Justices Janine Kern and Mark Salter, and retired Chief Justice Gilbertson.

The justices reversed the ruling Myren made as judge and sent the contempt question back for further consideration of whether the ex-wife had the ability to comply with the original custody order and whether she “willfully or contumaciously” — stubbornly — disobeyed it.

The custody dispute came after a divorce between Justin Metzger and Hope Metzger. The two reached a settlement agreement during trial in January 2019. She received custody of their child for most of the year and he was to have a minimum 10 weeks with the child during the summer.

Judge Myren verbally approved the settlement and ordered it take effect immediately. He later issued a written order that each party signed.

The custody dispute came later that year. The father picked up the child in May and returned the child to the mother for a weekend in June, as the two parents had previously agreed, because the child missed her siblings.

Hope then refused to return the child. Justin filed a motion asking Judge Myren to order that Hope show cause why she shouldn’t be found in contempt. Justin had the motion served directly on Hope after her lawyer indicated he wouldn’t represent her at the show-cause hearing.

Wrote Justice DeVaney:

“Hope testified that her attorney never provided her with any documentation throughout the case. She further claimed that she did not read any part of the agreement she signed and that her attorney did not inform her about its contents. Hope acknowledged that at the January 2019 hearing, she told the court she understood the agreement and assented to be bound by it. The circuit court nevertheless found that Hope was not in contempt of the judgment and decree of divorce because she was not personally served with the judgment. The court ruled that service on Hope’s attorney was insufficient to prove she had knowledge of the judgment. Additionally, the court ruled that Hope could not be held in contempt of the signed agreement between the parties because it was not an order of the court.”

Justin filed a motion for reconsideration. At the October 2019 hearing, he said he wanted makeup time and asked Judge Myren to create a calendar “detailing visitation for every week, weekend, and holiday until (the child) reaches the age of majority,” Justice DeVaney wrote. The justice continued:

“Justin added that he did not want Hope to be fined or go to jail, and although he initially requested attorney fees in his contempt motion, he advised the court at the hearing on his motion to reconsider that he was no longer requesting such fees. When the circuit court asked Hope whether an order outlining the days and times that visitation should be exchanged would be a good idea, she replied, ‘Yes, it would, but this is the thing, I agreed to the ten weeks, but I was supposed to have [C.M.] every other weekend.’ (Emphasis added.)”

The justice further explained:

“At the end of the hearing, the circuit court found that Hope did not comply with the order. However, the court ruled that Hope could not be found in contempt because she was not given proper notice of the order. The court reasoned that a party can only be found in contempt of court if the opponent establishes that the party was personally served with, or had actual notice of, the order. The court rejected Justin’s suggestion that the current rules of civil procedure allowing
electronic service on a party’s attorney changed these requirements. It then denied
Justin’s motion for reconsideration.”

According to Justice DeVaney, Judge Myren erroneously applied the law when he focused on whether Hope had been provided notice of the custody order itself, rather than determining whether she had actual knowledge of the contents of the order. She cited a 1996 decision, LPN Trust v. Farrar Outdoor Advert., Inc.

“After a review of the record, it is clear that Hope had knowledge of the contents of the relevant portions of the custody and visitation agreement incorporated in the court’s written judgment and decreeTherefore, Hope is presumed to know what was contained in the custody and visitation
provisions of this agreement. Second, when the parties reached a settlement, counsel orally related its terms on the record at a hearing where both parties were present. Relevant here, the terms related included the parties’ agreement as to summer visitation. At this hearing, Hope acknowledged that she understood the agreement and agreed to be bound by it, and the circuit court ordered both parties to comply with its terms. In addition, it was apparent in Hope’s colloquy with the circuit court at the contempt hearing that she knew Justin was entitled, by virtue of the court’s order, to ten weeks of summer visitation. Therefore, the circuit court’s finding that Hope did not have the requisite knowledge of the order at issue was clearly erroneous.

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