Fuller v. Fuller, 13229

Decision Date21 April 1981
Docket NumberNo. 13229,13229
PartiesJohn FULLER, Plaintiff and Appellant, v. Mary FULLER, Defendant and Appellee. . Considered on Briefs
CourtSouth Dakota Supreme Court

Gary P. Thimsen of Woods, Fuller, Shultz & Smith, Sioux Falls, for plaintiff and appellant.

Thomas F. Martin of McCann, Martin & Mickelson, Brookings, for defendant and appellee.

PER CURIAM.

The husband appeals from an order entered in a divorce action finding him in contempt.

The decree entered in the divorce action ordered the husband to pay $225 per month child support. After a hearing on an order to show cause the court entered findings which included a finding that the husband had failed to make support payments as required. The trial court failed to specifically find that the husband had the ability to comply with the child support order. The only finding made on his ability to comply was that he was able to pay more than $75 per month, the amount to which he had unilaterally reduced support.

The husband contends that there was not a sufficient finding made that he had the ability to make the child support payments. Absent such a finding he argues that the trial court could not conclude he was in contempt. A conclusion that contempt has occurred is improper without a finding that the four elements of contempt are present-(1) existence of an order, (2) knowledge of that order, (3) ability to comply with the order, and (4) wilful or contumacious disobedience. Talbert v. Talbert, 290 N.W.2d 862 (S.D.1980); Hanisch v. Hanisch, 273 N.W.2d 188 (S.D.1979). Here the court failed to find that the husband had the ability to comply with the order. Without this he could not be held in contempt.

Appellee is awarded attorney fees in the amount of $300.00.

The order of contempt is reversed, and the matter is remanded to the trial court for a specific finding of fact on the husband's ability to comply with the divorce decree's order for child support.

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4 cases
  • In re Adoption of C.D.B., 23573.
    • United States
    • South Dakota Supreme Court
    • November 22, 2005
    ...knowledge of the order; (3) ability to comply with the order; and (4) willful or contumacious disobedience." Id. (citing Fuller v. Fuller, 312 N.W.2d 729, 730 (S.D.1981)). [¶ 22.] In November 2002, the mother was ordered to pay the father child support of $130 per month to begin in January ......
  • Thomerson v. Thomerson
    • United States
    • South Dakota Supreme Court
    • May 14, 1986
    ...of all elements establishing or precluding contempt and of all facts relevant to modification of support awards. Fuller v. Fuller, 312 N.W.2d 729, 730 (S.D.1981); see also Amiotte v. Amiotte, 358 N.W.2d 803, 805 (S.D.1984) (Fosheim, C.J., joined by Henderson, J., dissenting); see also Fienu......
  • Johansen v. Johansen, 14540
    • United States
    • South Dakota Supreme Court
    • October 25, 1984
    ...an order; (2) knowledge of that order; (3) ability to comply with the order; and (4) willful or contumacious disobedience. Fuller v. Fuller, 312 N.W.2d 729 (S.D.1981). We are of the opinion that the trial court erred in amending the property settlement as adopted in the decree. Since the am......
  • Taecker v. Taecker, 18556
    • United States
    • South Dakota Supreme Court
    • February 8, 1995
    ...an order; (2) knowledge of the order; (3) ability to comply with the order; and (4) wilful or contumacious disobedience. Fuller v. Fuller, 312 N.W.2d 729, 730 (S.D.1981). The father concedes the first two elements. He contends, however, that he "voluntarily paid as much as he could," but si......

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