January 6, 2014
On December 27, 2013, the Court of Appeals issued its decision in Mansholt v. Kajian The case affirmed a contempt finding against the husband in a divorce case. While the case is not recommended for publication, it is authored, which means it can be cited FWIW.
There are two important facets to this decision. First – and most important – personal service is not required for a remedial contempt procedure. The court held that:
Â§ 785.03 only required that Kajian receive notice and a hearing before the court could properly sanction him for contempt and nothing in [Â§ 785.03] indicates that there has to be personal service.
While this is consistent with past practice, I can’t think of a prior case in which this holding was so explicit.
Second, if a payor wants to argue inability to pay as a defense against a contempt, he (sorry, but is rarely a “she”) should be making some payments. In this case, the husband was supposed to pay $3,000 per month for child support, $500 per month to a trust for the minor child, and $9,000 per month to the wife related to an equalization payment of $3 million.
Instead of making payments, he quit his job and remained in Iran.
If he simply stayed in Iran, the wife may have ended up with an empty judgment. Of course, the husband would be estranged from his children or family still living in the US. These actions did not exactly endear himself to the court and the CA held:
…Kajian did not just choose to stop making some of the payments or only make partial payments, but it appears that by the time of the contempt hearing, he had stopped making all court-ordered payments. Based on this record, we cannot conclude that the circuit court erred in holding Kajian in contempt.
Finally, the CA affirmed the award of $106,717.60 in attorney and accounting fees without a separate hearing. This is always an issue as the attorney representing a wife in these cases does not want to have to testify. So if helps that the CA held that:
…the record reflects that Mansholt met her burden of establishing the reasonableness of the fees. Mansholt submitted a draft invoice for services provided by her attorneys as well as a spreadsheet documenting services provided by the accountants…The documentation submitted by Mansholt allowed the circuit court to reach a lodestar figure and from there it affirmed the figure’s reasonableness after considering the entirety of the case. The court did not err in declining to afford Kajian a separate evidentiary hearing related to the professional fees.
My one grip with this case is that it should be a published opinion.