Goins v. Goins

• Decision Date: 15 August 1983
• Docket Number: No. 15550-CA,15550-CA
• Citation: Goins v. Goins, 437 So.2d 947 (La. App. 1983)
• Parties: Elaine Claire Buckley GOINS, Plaintiff-Appellee, v. Charles Nelson GOINS, Defendant-Appellant.
• Court: Court of Appeal of Louisiana

Page 947

437 So.2d 947

Elaine Claire Buckley GOINS, Plaintiff-Appellee, v.Charles Nelson GOINS, Defendant-Appellant.

No. 15550-CA.

Court of Appeal of Louisiana Second Circuit.

Aug. 15, 1983.

David R. Buckley, Port Allen, for plaintiff-appellee.

Jim W. Wiley, Winnfield, for defendant-appellant.

Before PRICE, MARVIN and NORRIS, JJ.

NORRIS, Judge.

Charles Nelson Goins appeals a judgment reducing the amount of child support payments previously awarded, accruing past due amounts of child support and finding him in contempt of court for nonpayment, assigning the following errors:

(1) Whether the trial court abused its discretion in finding Charles Goins in contempt of court for failure to pay support;

(2) Whether the trial court abused its discretion in the exercise of its contempt powers;

(3) Whether or not the trial court erred in setting progressive child support payments; and

(4) Whether the court abused its discretion in awarding the sum of $150 per month as child support.

The parties were separated by judgment rendered and signed on the 28th day of August, 1980, which ordered Mr. Goins to pay child support for one minor child in the amount of $300 per month.On January 21, 1982, Mr. Goins petitioned for divorce and asked that the child support previously fixed be reduced to $100 per month.Mrs. Goins answered the suit on February 17, 1982 and no further activity is reflected by the record until October 26, 1982, when Mrs. Goins filed a rule seeking to recover arrearages in child support payments due under the separation judgment, for contempt and for reasonable attorney's fees.On November 17, 1982, Mr. Goins filed a rule to reduce the child support from $300 per month to $100 per month.These rules were heard in connection with the trial on the divorce on December 13, 1982.

Evidence adduced at trial revealed that Mrs. Goins was unemployed as a result of her having voluntarily left her previous employment.She testified that she was physically and mentally able to work but was receiving food stamps, a medical card and $123 per month from the support enforcement agency.Mr. Goins testified that he was unemployed as a result of his having been terminated and that he was receiving unemployment benefits of $160 per week.While he had made numerous job applications, he had been unable to secure employment because of the depressed state of the economy.During a large portion of the arrearages' period, Mr. Goins was unemployed and receiving unemployment benefits.The parties stipulated the arrearages to be $5735.

After hearing all of the evidence, the trial court granted the divorce; maintained custody with Mrs. Goins; fixed child support at $100 per month until April 1, 1983, at which time it would be increased to $150 per month; fixed the arrearages in the stipulated amount and made that amount executory; awarded attorney's fees of $300; found Mr. Goins to be in contempt of court and sentenced him to pay a fine of $200 and to serve a jail term of 30 days.The jail sentence was suspended and Mr. Goins was placed on unsupervised probation subject to the following conditions:¹

(1) That he maintain a current status on child support payments; and

(2) That he liquidate the arrearages in the following manner:

(a) That he make a payment in the amount of $500 on or before January 15, 1983;

(b) That he execute a promissory note on or before January 15, 1983, in the amount of $5235 bearing interest in the amount of 12%, providing for 20% attorney's fees, and providing for payments in installments sufficient to liquidate the amount of the note in five years; and

(c) That he pay the $300 attorney's fees awarded in connection with the rule within six months.

ASSIGNMENT OF ERRORNO. 1

In connection with this assignment of error, Mr. Goins argues that the trial court abused its discretion in finding him to be in contempt of court because he was unemployed for a substantial portion of time during the period covering the arrearages which precluded him from meeting his child support obligation.He argues that his default was not of his own voluntary choosing but was a result of the depressed economy.

Prior to any discussion of this assignment, we note that although there has been no question raised regarding this court's authority to review a contempt judgment on direct appeal rather than by application for supervisory writs, there exists within the jurisprudence a conflict as to the proper procedure for seeking review of a contempt finding.²However, it has been the practice of this court to review such an issue raised in connection with an appeal, and we will address the merits of this issue contained within this appeal.³SeeFontana v. Fontana, 426 So.2d 351(La.App. 2d Cir.1983);Woodall v. Woodall, 397 So.2d 524(La.App. 2d Cir.1981).

Mr. Goins' argument was expressly considered and rejected by the trial court which found that Mr. Goins had not made a conscientious effort to pay child support.Although as a general rule, failure to pay child support resulting from the obligor's financial inability to pay cannot support a contempt charge, this finding is primarily factual and a trial court's finding thereon should not be disturbed absent manifest error.Fontana v. Fontana, supra.The record indicates based on Mr. Goins' stipulation that he was in arrears in the amount of $5735 for the period of time extending from August 28, 1980 until December 13, 1982.It is noteworthy that for extended periods during this time span, Mr. Goins was unemployed.Yet he never attempted to exercise any of the legal remedies available to him to have his child support payments reduced because of his altered circumstances until after Mrs. Goins filed a rule to have the past due support made executory.While we are not unsympathetic with Mr. Goins' predicament, we cannot say that the trial court was clearly wrong in finding that Mr. Goins' failure to pay this amount of support was willful and without legal excuse.

This assignment of error is without merit.

ASSIGNMENT OF ERRORNO. 2

Mr. Goins then argues that the trial court abused its discretion in the exercise of its contempt powers.More particularly, Mr. Goins argues that while the judgment imposing the $200 fine and the thirty day jail sentence is within the power of the court, the court's conditions of probation are severe and inconsistent with the evidence and do not provide a constructive manner to relieve Mr. Goins of the jail sentence.He particularly notes that he is being forced to execute a promissory note to reflect the judgment amount and to undertake the additional condition of paying 20% attorney's fees if he is unable to comply with the payment provisions of the note.Finally, he argues that he will be exposed to the jail sentence if he is unable to pay the attorney's fees within six months.He contends that such a severe sentence on his first occasion in court is unwarranted.

Contempt proceedings in civil cases are regulated by La.C.C.P. Arts. 221-227andLa.R.S. 13:4611.

La.C.C.P. Art. 224 provides in pertinent part:

A constructive contempt of court is any contempt other than a direct one.

Any of the following acts constitutes a constructive contempt of court:

* * *

* * *

(2) Wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court;

La.C.C.P. Art. 227 provides:

A person may not be adjudged guilty of a contempt of court except for misconduct defined as such, or made punishable as such, expressly by law.

The punishment which a court may impose upon a person adjudged guilty of contempt of court is provided in R.S. 13:4611.

La.R.S. 13:4611 provides in pertinent part:

Except as otherwise provided by law:

(A)The supreme court, the courts of appeal, the district courts, family courts and city courts may punish a person adjudged guilty of contempt of court therein, as follows:

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* * *

(4) For any other contempt of court, by a fine of not more than two hundred and fifty dollars, or imprisonment for not more than thirty days, or both.

Once a criminal sentence is imposed in a contempt proceeding ancillary to a civil proceeding, the proceeding assumes the quality of a criminal or quasi-criminal proceeding.Fontana v. Fontana, supra;Ourso v. Ourso, 282 So.2d 157(La.App. 4th Cir.1973).After the imposition of a sentence in a contempt proceeding, the proceeding becomes subject to the provisions of the Code of Criminal Procedure regarding the execution of sentences.Ourso v. Ourso, supra.

While it is recognized that a defendant has no right to a suspension of sentence in a contempt proceeding, but, in fact, is the beneficiary of the court's clemency when such a suspended sentence is imposed [Wicker v. Wicker, 373 So.2d 210(La.App. 4th Cir.1979) ], in this case, the trial court chose to afford Mr. Goins the privilege of probation and suspended sentence.Although it was not obligated to be so lenient, once the trial court chose to suspend the execution of the sentence, it was mandated to follow the provisions of La.C.Cr.P. Art. 894, with its attendant limitations.La.C.Cr.P. Art. 894 provides in pertinent part:

A.When a defendant has been convicted of a misdemeanor, except criminal neglect of family, the court may suspend the imposition or the execution of the whole or any part of the sentence imposed and place the defendant on unsupervised or supervised probation upon such conditions as the court may fix, where suspension is not prohibited under the law.Such suspension of sentence and probation shall be for a period of two years or such shorter period as the court may specify.

The court may suspend a misdemeanor sentence after the defendant has begun to serve the sentence.

La.C.Cr.P. Art. 895 provides in pertinent part:

A.When the court suspends the imposition or execution of sentence and places a defendant on probation, it shall require the defendant to refrain from criminal conduct and it may impose any...