Gonzalez v. Gonzalez

• Decision Date: 24 January 1983
• Docket Number: Docket No. 59983
• Citation: Gonzalez v. Gonzalez, 328 N.W.2d 365, 121 Mich.App. 289 (Mich. App. 1983)
• Parties: Ruth Ann GONZALEZ, Plaintiff-Appellee, v. Rogelio GONZALEZ, Defendant-Appellant. 121 Mich.App. 289, 328 N.W.2d 365
• Court: Court of Appeal of Michigan

Page 365

328 N.W.2d 365

Ruth Ann GONZALEZ, Plaintiff-Appellee, v. Rogelio GONZALEZ, Defendant-Appellant.

Docket No. 59983.

121 Mich.App. 289, 328 N.W.2d 365

Court of Appeals of Michigan.

Submitted June 7, 1982.

Decided Sept. 30, 1982.

Released for Publication Jan. 24, 1983.

[121 MICHAPP 290] Legal Aid of Western Michigan by Tom Stellard, Allendale, for defendant-appellant.

Before WALSH, P.J., and ALLEN and GILLESPIE ^*, JJ.

PER CURIAM.

Ruth Ann Gonzalez was divorced from Rogelio Gonzalez on October 23, 1978, in Oceana County. They had one daughter Carrie Ann, who was born October 19, 1975. Child support was originally set at $15 a week. The defendant, at the time of the hearing in July, 1981, was $1,600 delinquent in child support payments. He has remarried and lives with his current wife, their daughter and her son.

The defendant has been unemployed since 1979, having been fired from his last employment. His sole support is $454 per month from ADC benefits and his personal property consists of a 1970 Chevrolet worth "roughly $100". He has a third grade education. His first language is Spanish and he did not learn English until he was 18 years old. He is now 33 years of age. He has studied auto mechanics but is not certified and has no tools.

At a session of the Oceana County Circuit Court held in July, 1981, the defendant was ordered to [121 MICHAPP 291] serve 60 days in the county jail unless he paid $90 to the Friend of the Court within 10 days.

On August 31, 1981, Legal Aid of Western Michigan filed a motion for reconsideration of the order and additionally moved for a reduction of child support. A hearing was set on September 9, 1981. Following this hearing, the court denied defendant's motions and entered an order that defendant pay $90 within 10 days or go to jail for 90 days. The defendant's attorney indicated that the defendant was prepared to appeal such an order. The court required a $90 appeal bond. This Court stayed the circuit court order and allowed immediate consideration without bond.

The trial court was no doubt feeling the frustration common among circuit judges when they are called upon to enforce child support orders in cases where a divorced party acquires a second family without the ability to meet support obligations to the first family.

However, the errors which were made were several.

First, while the trial judge made it clear in his statements that he did not expect the defendant to pay the ordered child support payments from the ADC grant, it appears from the record that the defendant had no other means of support. The statute, of course, forbids alienation of ADC funds. M.C.L. Sec. 400.63; M.S.A. Sec. 16.463. When no other means of support exists, such an order is not within the power of the court. Causley v. LaFreniere, 78 Mich.App. 250, 252-253, 259 N.W.2d 445 (1977).

The trial judge could not have intended a criminal contempt for, if so, he would have opened up a panoply of rights which were not here observed. For example, no affidavit and order to show cause were filed to begin the proceedings as required by [121 MICHAPP 292] GCR 1963, 760.1. The defendant was required to testify and he was not proven contumacious beyond a reasonable doubt. Jaikins v. Jaikins, 12 Mich.App. 115, 121, 162 N.W.2d 325 (1968). Yet, the court did order a 90-day sentence which did not provide for release upon compliance. This was in excess of the 30 days allowed under the general contempt statute. M.C.L. Sec. 600.1701(5); M.S.A. Sec. 27A.1701(5) and M.C.L. Sec. 600.1715; M.S.A. Sec. 27A.1715.

The specific statute governing failure to support children is M.C.L. Sec. 552.201; M.S.A. Sec. 25.161. This statute requires that the court be satisfied that "the party is of sufficient ability to comply with said order, or by exercise of diligence could be of sufficient ability."

The trial judge may have found such fact but it was not...