Irby v. Irby, 53318

• Decision Date: 21 April 1981
• Docket Number: No. 53318,No. 2,53318,2
• Parties: 1981 OK CIV APP 25 Larry D. IRBY, Appellee, v. Maxine IRBY, Appellant
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 813

629 P.2d 813

1981 OK CIV APP 25

Larry D. IRBY, Appellee, v. Maxine IRBY, Appellant.

No. 53318.

Court of Appeals of Oklahoma, Division No. 2.

April 21, 1981.

Released for Publication by Order of Court of Appeals May 28, 1981.

Appeal from the District Court of Creek County; Lester D. Henderson, Trial Judge.

Application of divorcee for reduction of child support arrearage to judgment. Application denied and woman appeals. AFFIRMED.

Maurice E. Lampton, Sapulpa, for appellee.

W. Creekmore Wallace, II, Sapulpa, for appellant.

BRIGHTMIRE, Judge.

The question raised is whether the court has the power to terminate child support payments upon finding that the custodial parent unjustifiably refuses to honor the payor's decretal right of child visitation. The trial court held that it did have and as a result denied the custodial parent's request for a judgment against the noncustodial parent in an amount equal to the sum of the payments excused by the court. The woman appeals. We affirm.

I

The parties were divorced on September 6, 1974. Defendant, Maxine Irby, was granted custody of the couple's three-year-old twin boys subject to the father's "right of liberal visitation privileges at reasonable times and hours." And, he was ordered to pay $100 per month for their support.

On May 12, 1976, the father moved the court to modify the decree by vacating the order requiring him to pay child support until such time as the mother returned the children to the jurisdiction of the court. The allegation was that the mother had, without permission of the court, removed the twins to California and then Texas, thus depriving the father of his visitation rights. Notice that this motion would be heard on May 26, 1976, was served on the mother in San Antonio, Texas, on May 14 by registered mail. Although not in the record, the court evidently entered an order June 14, 1976, vacating the earlier child support order because on June 17, 1976, a motion was filed on behalf of the woman reciting that such an order was made on June 14 and that it should be set aside "for the reason that through inadvertence and mistake on the part of counsel, he was not present at the hearing ... and the default rendered on that date is contrary to law and void on its face and a violation of defendant's rights." This motion to vacate came on for hearing on September 13, 1976. Again the woman did not show up and her attorney announced he was unable to contact her to arrange for the honoring of the father's visitation privileges. The court, consequently, overruled her motion and directed the father not to pay child support until the court ordered him to do so.

On November 13, 1978, the woman filed an application asking the court to hold the father in contempt of court for failure to pay child support and to render a judgment in her favor against him for $3,400 the amount that was not paid after the June 14, 1976, order. The father's response included, of course, reference to the relief granted to him on June 14, 1976. He added that he had "attempted to learn of the whereabouts of defendant (mother), having personally gone...