Davenport v. Hood

• Decision Date: 03 November 2000
• Citation: 814 So.2d 268
• Parties: James D. DAVENPORT v. Loretta M. Davenport HOOD.
• Court: Alabama Court of Civil Appeals

814 So.2d 268

James D. DAVENPORT v. Loretta M. Davenport HOOD.

2990457.

Court of Civil Appeals of Alabama.

November 3, 2000.

Jack E. Held and Charles R. Driggars of Sirote & Permutt, P.C., Birmingham, for appellant.

Wendy Brooks Crew and Sybil Corley Howell, Birmingham, for appellee.

On Application for Rehearing

THOMPSON, Judge.

The opinion of September 15, 2000, is withdrawn, and the following is substituted therefor.

Loretta M. Davenport Hood and James D. Davenport were divorced by an order of the trial court in 1982. The mother was awarded custody of the parties' two children. The father was ordered to pay alimony, child support, and postminority support. In the time since the divorce, the mother has obtained two judgments awarding her amounts for arrearages of past-due alimony and child support.

On April 29, 1999, the mother filed a petition to modify the father's child-support obligation; she later amended that petition, seeking to enforce the most recent judgment for arrearages. On January 27, 2000, the trial court conducted an ore tenus hearing. At the close of the evidence in that hearing, the trial court found the father in contempt of court for his failure to pay child support, and it ordered the father incarcerated for 30 days.

On February 3, 2000, the trial court entered a judgment that, among other things, found the father in criminal contempt of court for "willful contumacy" in failing to provide postminority support and medical insurance for the parties' daughter. On that same day, February 3, 2000, the trial court amended its judgment to find the father in both civil and criminal contempt and ordered him incarcerated.

In its February 3, 2000, judgment, the trial court also established the father's total arrearage at $301,173.53. The trial court ordered the father to pay $3,200 per month toward the arrearage.¹ In addition, the trial court ordered that the father pay the mother $2,200 as an attorney fee.

On February 3, the father filed a motion for relief from the contempt citation; the trial court denied that motion. Also on February 3, the father appealed to this court and also filed in this court an emergency motion to stay, pending the resolution of his appeal, the operation of those portions of the trial court's judgment ordering him incarcerated. This court granted that motion pending further orders of this court and ordered that the father be released from jail.

Initially, we note that a trial-court judgment based on ore tenus evidence is presumed to be correct and that this court will not reverse absent a showing that the trial court abused its discretion. Watts v. Watts, 706 So.2d 749 (Ala.Civ.App.1997).

In the parties' 1982 divorce judgment, the father was ordered to pay, in addition to certain medical expenses, $1,500 per month as child support. At some point after the parties divorced, the father was convicted on a charge of felony theft and served time in prison. He testified at the January 27, 2000, hearing that his conviction often made others unwilling to employ him.

On April 15, 1997, Judge J. Scott Vowell entered a judgment finding the father in contempt of court for his failure to pay alimony and child support and assessing arrearages against the father. Judge Vowell set a date in October 1997 to conduct a hearing to determine whether the father had, in good faith, complied with the terms of the April 15, 1997, judgment.

On October 14, 1997, Judge Vowell again determined that the father was in contempt of court and reduced the father's further arrearage to a judgment in favor of the mother. Judge Vowell ordered the father to pay $400 monthly toward the arrearage, but noted that because he refused to modify the continuing obligations under the previous judgments, those amounts would continue to accrue.

On September 18, 1998, Judge Vowell entered another judgment on the mother's petition for a rule nisi. Judge Vowell found that the father had recently begun earning $3,000 per month as a consultant and that, although the payments were not made regularly, the father had made payments constituting the full amount due under the October 1998 judgment. Judge Vowell declined to find the father in contempt because, "for the first time in years, [the mother] is receiving financial help for [the parties'] children." Judge Vowell determined the then current arrearage to be $259,431.84, and he entered a judgment in favor of the mother in that amount. Judge Vowell's order also stated:

"3. Davenport is ordered to continue making payments on the arrearage in the minimum amount of $400 per month through December 21, 1998. On January 1, 1999, those monthly payments will increase to Six Hundred Dollars ($600). For so long as he complies with the terms of this order, such payment will be considered as evidence of his good faith effort to comply with his obligations to the plaintiff, unless otherwise ordered by this Court. His current obligations under the Final Judgment as modified are not affected by this order and will continue to accumulate."

We note that a different trial judge, Judge R.A. Ferguson (hereinafter the "trial court"), conducted the January 27, 2000, hearing and entered the February 3, 2000, orders.

The father is currently employed as a consultant. He testified that his employers do not pay him directly, but rather that they pay his salary into his wife's corporation, Wound Care Associates d/b/a Davenport Realty. The father's wife then pays him a salary from the corporation.

In September 1997, Joe Gilchrist hired the father as a consultant and paid the corporation $3,000 per month as the father's salary. In early 1998, the father's employment with Gilchrist ended. However, the father returned to work for Gilchrist from July 1998 through August 1999, earning $3,000 per month.

The father testified that in March 1998, Mark Osborn hired him as a consultant; the father testified that Osborn pays the corporation, as his salary, $2,600 every two weeks.² The father also testified that Osborn paid $60,000 annually for his consulting services.

Although the corporation received $48,000 for the father's consulting services in 1998, the corporation paid the father a gross salary of only $24,000 for 1998. The corporation received, as payments for the father's salary, approximately $84,000 in 1999.³ However, the corporation paid the father a gross salary of $48,000 for 1999. The father testified that his wife determined the amount of his annual salary he received from the corporation.

The September 1998 judgment ordered the father to pay $600 per month toward the accumulated arrearage in excess of $250,000. The father's obligations to pay child support and postminority support continued to accrue under that judgment because those obligations were in excess of the $600 per month the trial court ordered the father to pay. It is undisputed that the interest payments on the accumulated arrearage greatly exceeded $600.

The father testified that he has no assets. The $400,000 house in which he resides is held solely in his wife's name. The 1998 Dodge Durango vehicle the father drives is also in his wife's name. The father testified that most of the time, he deposits his salary into his wife's bank account and she then writes a check to him for any expenses he has. The father and his wife do not have a joint checking account.

The mother testified that she and her husband had borrowed money to send the parties' children to college. She testified that the payments on the loans total $700 per month.

The father first argues that the trial court erred in holding him in criminal contempt of court. "Criminal contempt" is defined as either

"(i) Misconduct of any person that obstructs the administration of justice and that is committed either in the court's presence or so near thereto as to interrupt, disturb, or hinder its proceedings, or

"(ii) Willful disobedience or resistance of any person to a court's lawful writ, subpoena, process, order, rule, or command, where the dominant purpose of the finding of contempt is to punish the contemnor."

Rule 70A(a)(2)(C), Ala.R.Civ.P.

Civil contempt is a person's willful failure to comply with "a court's lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with." Rule 70A(a)(2)(D), Ala.R.Civ.P.

The trial court found the father to be in both civil and criminal contempt. The trial court sentenced the father to five days in jail for his failure to provide postminority support. The trial court also sentenced the father to an additional 25 days in jail, which represented five days in jail for each of the five months he had failed to provide medical insurance for the parties' daughter.

"Our supreme court discussed civil and criminal contempt in [State v. Thomas], 550 So.2d 1067, 1072 (Ala. 1989), and stated:

"`Contempts are characterized as either civil or criminal. Civil contempt seeks to compel or coerce compliance with orders of the court, while a criminal contempt is one in which the purpose of the proceeding is to impose punishment for disobedience of orders of the court.'

"`The sanction for civil contempt continues indefinitely until the contemnor performs as ordered. A critical distinction is that the sanction for criminal contempt is limited in Alabama district and circuit courts to a maximum fine of $100 and imprisonment not to exceed five days.'

"(Citations omitted.)

"Our supreme court also stated in [State v. Thomas], 550 So.2d 1067, 1073:

"`The line between civil and criminal contempt can sometimes become blurred....'

"`Confusion arises in attempts to classify civil and criminal contempts, because the elements often overlap. In appropriate circumstances, however, a party's actions can support a finding of both civil and criminal contempt.'

"(Citations omitted.)

". . . .

"The question of whether this is civil contempt or criminal contempt becomes important in this case

...