Catron v. Catron

• Decision Date: 23 March 1978
• Docket Number: No. 77-100,77-100
• Parties: Cynthia CATRON, Plaintiff-Appellee, v. Richard E. CATRON and LaVerne Catron, Defendants-Appellants. . I
• Court: Colorado Court of Appeals

Page 322

577 P.2d 322

40 Colo.App. 476

Cynthia CATRON, Plaintiff-Appellee, v. Richard E. CATRON and LaVerne Catron, Defendants-Appellants.

No. 77-100.

Colorado Court of Appeals, Div. I.

March 23, 1978.

Alperstein, Plaut & Snead, P.C., Frank Plaut, Ronald C. Forman, Lakewood, for plaintiff-appellee.

Steven Henry DeVito, Denver, for defendants-appellants.

ENOCH, Judge.

Defendant, Richard E. Catron, was found in contempt of court for violating final orders entered in connection with a decree of divorce. The trial court sentenced him to 30 days in jail, and ordered him to pay his former wife $1,900 in attorneys' fees incurred in connection with the contempt citation. Defendant appeals. We affirm.

Richard and Cynthia Catron were divorced in 1970. The final orders which were entered in connection with that divorce specified, among other things, that Richard should: 1) provide health insurance for the couple's two minor children; 2) pay all the children's medical expenses not covered by the health insurance; 3) pay $125 per month per child in support; and 4) as part of the overall property settlement, execute a $20,000 promissory note payable to Cynthia in monthly installments of $300.

In November of 1975, Cynthia moved for the issuance of a contempt citation against Richard, alleging that he was not complying with these and other provisions of the final orders. Richard immediately moved for a modification of his child support obligations. Nothing in the record indicates that this motion for modification was ever ruled on.

After a series of resettings, Cynthia's motion for contempt was heard in April of 1976. In the meantime, Richard's attorney withdrew, and Richard appeared at the April contempt hearing without counsel. His motion for a continuance was denied, and the court found him in contempt for violating each of the four provisions of the final orders mentioned above. He was sentenced to 30 days in jail, but that sentence was suspended for 45 days so he could have an opportunity to purge himself of the contempt.

At a later hearing, the court found that Richard had not purged himself, and ordered him to serve the sentence. The court also ordered Richard to pay $1,900 on Cynthia's attorneys' fees.

Motion For New Trial

Cynthia argues that the allegations of error contained in Richard's motion for a new trial are so general that the motion does not comply with C.R.C.P. 59(f), and that the matters Richard urges here are therefore not reviewable. We disagree. Richard's motion for new trial, when taken together with his detailed memorandum brief in support of the motion, was sufficient to apprise the trial court of his arguments. See Hamilton v. Gravinsky, 28 Colo.App. 408, 474 P.2d 185, aff'd, 174 Colo. 206, 483 P.2d 385.

Our review of the record also discloses that, contrary to Cynthia's allegations, Richard's motion for a new trial and notice of appeal were timely filed. C.R.C.P. 59(b); C.A.R. 3.

Contempt

Though Richard has served the sentence imposed, the contempt issue is not moot, as contended by Cynthia, because, under these circumstances, the finding of contempt is a prerequisite to the awarding of attorneys' fees. See C.R.C.P. 107(d); Eatchel v. Lamphere, 170 Colo. 545, 463 P.2d 457.

Richard argues that the finding of contempt was procedurally defective because the court erred in denying his motion for a continuance, forcing him to proceed with the hearing on contempt without the benefit of counsel. We disagree. Whether a motion for continuance should be granted is within the discretion of the trial court. People v. Holcomb, 187 Colo. 371, 532 P.2d 45; People v. Trujillo, Colo.App., 576 P.2d 179 (announced November 3, 1977, No. 76-542). We find no abuse of discretion here, particularly since almost three months elapsed between the time Richard's attorney withdrew and the April contempt hearing.

Richard contends that the evidence is insufficient to support the findings of default upon which the court based the contempt. We do not agree. The record clearly supports the trial court's finding that Richard failed to pay the required child support, and this alone would be sufficient to support the finding of contempt. Therefore, we need not address the issues of the medical bills and the promissory note.

We agree with Richard that the contempt involved here is remedial in nature, and that the trial court must make a finding of present ability to pay before he can be held in contempt. Wright v. District Court, Colo., 561 P.2d 15; Marshall v. Marshall, 35 Colo.App. 442, 536 P.2d 845, aff'd as to the issues involved here, Colo., 551 P.2d 709. However, such finding was implicit in the trial court's rulings. Richard was given a full opportunity to present evidence of his economic decline, and considerable evidence on this question was presented. The trial court found, and Richard admitted, that no child support payments had been made after November of 1974. In connection with this finding, the trial court further specifically found, on supporting evidence, that Richard had "resources from outside sources . . . (a portion of which) could have been diverted to the support of (the) child . . . ." Under the circumstances, we hold that these findings were sufficient under Wright...