In re the Marriage of S.M. Sager
| Decision Date | 29 October 2010 |
| Docket Number | No. 107,038.,107,038. |
| Citation | 249 P.3d 91,2010 OK CIV APP 130 |
| Parties | In re the MARRIAGE of S.M. SAGER, now Hicks, Petitioner/Appellee,andS.D. SAGER, Respondent/Appellant. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Released for Publication by Order of the Court
of Civil Appeals of Oklahoma, Division No. 1.
Appeal from the District Court of Tulsa County, Oklahoma; Honorable Carlos J. Chappelle, Judge.REVERSED AND REMANDED WITH INSTRUCTIONS.David W. Cole, Tulsa, OK, for Petitioner/Appellee.James C. Linger, Tulsa, OK, for Respondent/Appellant.WM. C. HETHERINGTON, JR., Judge.
¶ 1 In post-decree contempt proceedings initiated by S.M. Sager, now Hicks (Ex-wife), against S.D. Sager (Ex-husband) for failure to comply with their consent decree of dissolution, Ex-husband seeks review of a trial court order finding him guilty of indirect contempt for failure to pay child support and other child-related expenses and sentencing him to 6 months incarceration subject to purge. Legal errors require we reverse the order and remand with instructions to dismiss it.
¶ 2 “In a contempt proceeding, questions of fact will not be reviewed.” Kerr v. Clary, 2001 OK 90, ¶ 18, 37 P.3d 841, 845. As a result, we review only questions of law. Cowan v. Cowan, 2001 OK CIV APP 14, 19 P.3d 322; Torres v. Torres, 1998 OK CIV APP 18, 956 P.2d 166.
¶ 3 During the parties' eleven year marriage, three children were born. After the petition for dissolution was filed March 1, 2006, the parties agreed to a joint legal custody and physical custody/time sharing plan, child support according to their respective percentage of gross income, a 50–50% split for other child-related expenses, and division of their property and debts. Ex-husband also agreed to pay 50% of Ex-wife's attorney fees and costs. The parties executed a joint custody plan and “Agreed Decree of Dissolution of Marriage,” which was approved by the court and filed on November 9, 2006 (11/9/06 Agreed Decree).1
¶ 4 Two years later on May 19, 2008, Ex-wife filed an Application for Citation for Contempt (Contempt Application), claiming Ex-husband “willfully failed” to comply with the 11/9/06 Agreed Decree by failing to pay: (1) child support from April 2006 through February 2008 in the amount of $6,493.54 (with interest); (2) $3,860.00 for child care expenses; (3) $179.93 for the minor childrens' medical expenses; (4) $302.50 for their extracurricular activities; and (5) $3,340.17 for attorney fees, costs, and interest. She claimed his total debt through May of 2008 was $14,175.94. Ex-husband responded, denying all allegations and the claimed indebtedness. He later pled not guilty and waived his right to a jury trial.
¶ 5 A trial was held February 27, 2009, during which counsel for the parties and the Department of Human Services (DHS) participated, both parties testified, and numerous exhibits were admitted into evidence. After closing arguments, the trial court announced Ex-wife had carried her burden of clear and convincing evidence for establishing Ex-husband's wilful failure to pay child support and child related expenses and found him “guilty of contempt of court.” The trial court sentenced Ex-husband to six months in the Tulsa County jail, assessed $500 in fines plus costs, revoked all his licenses, set a purge fee total in the amount of $20,171.36, and reserved Ex-wife's application for attorney fees.
¶ 6 The Contempt Order filed April 2, 2009 includes the court's findings and also finds Ex-husband “is not in compliance and ... [is] guilty of indirect contempt of Court,” ordering the payments of fines and purge fee by “cash only,” and that “[t]he fee is payable to DHS.” 2 The purge fee is itemized in the order, as follows:
The Contempt Order also reserved the issue of Ex-wife's request for attorney fees.
¶ 7 Ex-husband timely filed his Petition–in–Error from the Contempt Order. After the trial court entered its Order Awarding Attorney Fees in favor of Ex-wife in the amount of $14,328.85, Ex-husband amended his petition to include review of that post-judgment order.3
¶ 8 Ex-husband alleges the trial court erred as a matter of law by finding him guilty of indirect contempt for failing to pay child support and child-related expenses (collectively, obligations) which were: (1) not included in Ex-wife's contempt application, (2) accrued subsequent to the contempt application, (3) due under a subsequently filed DHS order, and (4) due under a temporary order but not reserved in the final decree. After review of the applicable law, we address Ex-husband's last argument as “Pre-decree obligations” and his remaining arguments as “Post-decree obligations.”
¶ 9 Contempts are defined and limited by Oklahoma's Constitution and Statutes which have set forth a complete and all-inclusive definition of contempts. In the Matter of J.H., 2008 OK 104, ¶ 8, 213 P.3d 545, 547. Since 1910, an indirect contempt of court has been defined under § 565 of Title 21 as “willful disobedience of any process or order lawfully issued or made by court.” Effective November 1, 2008, the Legislature enacted a new statute, 21 O.S.Supp.2008 § 566.1, which applies to indirect contempt of a court “order compelling a parent to furnish child support, necessary food, clothing, shelter, medical support, payment of child care expenses or other remedial care for the minor child of the parent.”
¶ 10 Section 566.1 includes four subsections: [1] the “prima facie evidence of an indirect civil contempt of court,” 4 § 566.1(A); [2] the punishments for “indirect contempt for the failure to comply with an order for child support, child support arrearages, or other support,” § 566.1(B); [3] alternative programs/payment plan, see § 566.1(C); and [4] specific factors mandated for use by courts in determining a sentence and purge fee for indirect contempt, see § 566.1(D).5
¶ 11 Unlike direct contempt, the procedure governing punishment for indirect contempt is quite detailed and offers more protection to the accused. J.H., ¶ 12. Proceedings for contempt are sui generis. Henry v. Schmidt, 2004 OK 34, ¶ 11, 91 P.3d 651, 654. The purpose of the punishment for indirect contempt is remedial if used to coerce the defendant to comply with a court order. Id., ¶ 13. In cases of indirect contempt for “failure to comply with an order for child support, child support arrears, or other support,” the option to purge is “statutorily required” Id.
¶ 12 Ex-husband alleges the trial court erred by finding him guilty of indirect contempt for obligations due under temporary orders, arguing the 11/9/06 Agreed Decree failed to state such obligations were “still due” and expressly provided that it “supercedes all prior Orders entered by the Court herein.” 6 Relying on Holleyman v. Holleyman, 2003 OK 48, 78 P.3d 921, he basically argued the trial court was bound by the “superceding” provision in consent decree.
¶ 13 Ex-husband made these same arguments at the contempt trial when objecting to admission of Ex-wife's Exhibit No. 1, the two-page “DHS Record of Payment” executed on “2–24–09,” 7 which lists Ex-husband's varying monthly child support obligations and the payments he made pursuant to two “temporary order agreements” dated “4/3/06 and 5/3/06,” the 11/9/06 Agreed Decree, and a 01/22/09 Order Modifying Child Support.
¶ 14 In response to Ex-husband's objections, counsel for DHS conceded the 11/9/06 Agreed Decree “is silent as to any amounts that were due under the temporary order,” but argued that such omission does not bar collection of such amounts, relying on “43 O.S. § 118I(B)(2).” Apparently agreeing with DHS, the trial court admitted Exhibit 1 and noted Ex-husband's objection. After Ex-husband's closing argument, DHS further argued the temporary orders were still valid and enforceable by contempt and the word “supercedes” in the final decree means it “takes the place of ... It doesn't mean it vacated or in any way affected those prior orders.” (Emphasis added.)
¶ 15 Ex-wife does not address the “superseding” provision in the 11/9/06 Agreed Decree in her Answer Brief, but argues, as DHS did below, that “the Modified Temporary Order and Divorce Decree were valid orders and the provisions thereof were enforceable by a contempt action.” She also relies on 43 O.S.Supp.2009 § 118I(B)(2),8 which provides that “[a]ll final orders shall state whether past due support and interest have accrued pursuant to any temporary order and the amount due, if any; however, failure to state a past-due amount shall not bar collection of that amount after entry of the final support order.” (Emphasis added.)
¶ 16 We first note § 118I(B)(2) did not go into effect until July 1, 2009, four months after the contempt trial, however, its inclusion in § 118I resulted from the Legislature's transfer of a subsection from a different statute, 43 O.S.Supp.2007 § 118(E)(16)(b)(2),9 without modification to the language. Because the latter was in effect on the date of trial and when the contempt application was filed, we will refer to § 118(E)(16)(b)(2) when considering the trial court's decision to allow collection of accrued and unpaid child support due under its temporary orders by indirect contempt proceedings after approval of the parties' 11/9/06 Agreed Decree.
¶ 17 Statutory interpretation presents a question of law. Fanning v. Brown, 2004 OK 7, 85 P.3d 841. The fundamental rule of statutory construction is to ascertain and give effect to the legislative intent, and that intent is first sought in the language of a statute. Id. In the absence of a statutory definition, this court will give the words of a statute a plain and ordinary meaning, unless a contrary intention plainly appears. Id. When the language of a statute is plain and unambiguous, no occasion exists for application of rules of construction, and the statute will be...
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Caber v. Dahle
...P.3d 841, 845 (citation omitted). As a result, we review only questions of law. In re the Marriage of Sager, 2010 OK CIV APP 130, ¶ 2, 249 P.3d 91, 92.ANALYSISI. Custody of Child ¶ 21 In his first proposition in his Brief–in–Chief, Father argues the trial court erred (1) by failing to termi......