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In re Paternity of S.M.J.

Court of Appeals of Kansas

August 25, 2017

In the Matter of the Paternity of S.M.J., a Minor by and Through Her Mother and Next Friend, Whitney D. Jacobs, Appellee,
v.
David Roy Ogle, Appellant.

         SYLLABUS BY THE COURT

         K.S.A. 2016 Supp. 20-1204a(c) says that when a person accused of indirect contempt doesn't appear for the contempt hearing, the court can issue a bench warrant and shall proceed with the contempt hearing "when such person is brought before the court." Read as a whole, this subsection means that a district court cannot hold a civil-contempt hearing in the absence of the person accused of contempt.

         Appeal from Douglas District Court; Sally D. Pokorny, judge.

          Marc H. Berry, of Olathe Legal Clinic, LLC, of Olathe, for appellant.

          David J. Brown, of Law Office of David J. Brown, LC, of Lawrence, for appellee.

          Before Standridge, P.J., Leben, J., and Patricia Macke Dick, District Judge, assigned.

          LEBEN, J.

         Despite an extensive procedural history and some exciting details about alleged participation in Colombian drug cartels, this case dissolves into an ordinary legal question about a Kansas contempt-of-court statute. David Ogle failed to follow a longstanding court order that he not disparage Whitney Jacobs, the mother of his child, so Jacobs asked the district court to hold Ogle in contempt. Neither Ogle nor his attorney attended the contempt hearing, even though both knew about it. The district court proceeded without Ogle and held him in contempt, imposing some monetary sanctions and a 30-day jail sanction if Ogle didn't pay. Ogle has appealed to our court raising several arguments, including that the district court shouldn't have held the contempt hearing in his absence. Based on our reading of the Kansas indirect-contempt statute, we agree that the district court shouldn't have held the contempt hearing without Ogle, and we vacate the district court's judgment finding Ogle in contempt.

         Factual and Procedural Background

         Ogle and Jacobs had a child together in 2007, and their relationship ended sometime after that. In 2009, the Douglas County District Court entered the first court orders in this case, establishing custody and child support; the parties shared legal custody but the child lived with Jacobs. In 2012, Jacobs wanted to move with the child to Johnson County for a new job; Ogle objected, but the district court permitted the move. Around this time, Ogle began accusing Jacobs of being involved with a Colombian drug cartel. He told the district court that Jacobs had unexplained income, but the court was satisfied with the additional financial documents that Jacobs provided. Ogle reported his suspicions widely, to the district court, Kansas Social and Rehabilitation Services, various law-enforcement officials, the Internal Revenue Service, their child, and employees at the child's school, among others.

         The district court, beginning at least in early 2014, ordered Ogle to stop talking about his cartel accusations with his child and other third parties; he was scaring his child, who feared that her mother would go to jail because that's what Ogle kept telling her. For the next two years, Ogle continued pressing the issue, and the court continued ordering Ogle to stop his investigations and stop sharing his accusations with third parties. The district court eventually granted Jacobs temporary sole custody and restricted Ogle's parenting time to supervised visits and monitored phone calls.

         In November 2015, Ogle shared his drug-cartel allegations with the school where Jacobs worked as a teacher. In December, the school held what it described as a "due process hearing" and suspended Jacobs with pay (she eventually resigned). Jacobs filed a motion asking the district court to hold Ogle in contempt for violating its order not to share his accusations with third parties, and the district court ordered Ogle to appear at a contempt hearing.

         Neither Ogle nor his attorney appeared at the contempt hearing in January 2016, although both admitted later that they knew about it. The district court held the hearing without them and held Ogle in contempt for violating the court's order. The court ordered Ogle to pay the attorney fees Jacobs had incurred in her negotiations with the school and in pursuing the contempt claim (it also imposed a 30-day jail sanction that would ...


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