Johnson v. Johnson

Decision Date08 February 1995
Docket NumberNo. 940162,940162
Citation527 N.W.2d 663
PartiesDaryl E. JOHNSON, Plaintiff and Appellee, v. Carlotta L. JOHNSON, Defendant and Appellant. Civ.
CourtNorth Dakota Supreme Court

Thomas A. Wentz, Jr., of Pringle & Herigstad, Minot, for defendant and appellant.

Judith E. Howard, of Howard Law Firm, Minot, for plaintiff and appellee.

LEVINE, Justice.

Carlotta L. Johnson appeals from an order of the district court vacating a prior order to show cause why Daryl E. Johnson should not be held in contempt of court for noncompliance with a divorce judgment. We reverse and remand.

Carlotta L. Johnson and Daryl E. Johnson were divorced in June 1987. At that time, the parties entered into a stipulated settlement Corey completed high school in 1990 and enrolled in college. Initially, Daryl complied with the stipulation; however, he stopped making the $300 monthly payment in December 1993. At that time, Daryl wrote to Corey, requesting that Corey contact him, or he would no longer feel obligated to make the "college" payment. Upon Corey's receipt of the letter, Carlotta contacted the Regional Child Support Enforcement Agency and requested assistance enforcing Daryl's obligation under the divorce judgment. The agency refused to assist Carlotta because Corey was not a minor. Carlotta then initiated a contempt proceeding in district court and the court issued an order to show cause to Daryl. Daryl, after receiving the order to show cause, attempted to pay his arrearage, $900 at that time, to the clerk of the district court. The clerk, however, refused to accept the payment because it was not support for a minor child. The next day, February 24, 1994, Daryl sent the $900 directly to Carlotta on behalf of Corey.

                which was incorporated into the divorce judgment.  A portion of that stipulation obligated Daryl to "pay to each child the sum of $300.00 per month for a maximum of four years, if any child shall attend college and maintain passing grades."   Carlotta and Daryl are the parents of two children, Corey, born September 12, 1972, and Melissa, born May 19, 1976
                

The show cause hearing was held on February 28, 1994, three days after Carlotta received the $900 from Daryl. Following the hearing and submission of post-hearing briefs, the district court vacated the previous order to show cause, reasoning that Daryl's obligation under the divorce decree was for "collateral support," not "direct child support," and therefore, contempt was not an appropriate method of enforcing the judgment.

On appeal, Carlotta argues that the $300 per month which Daryl is obligated to pay under the original divorce judgment is child support and therefore, may be enforced by contempt proceedings. Daryl does not dispute that he is obligated to pay the $300, but argues that the issue is moot because he has purged himself of the possible contempt by paying the arrearage and that support for a child over the age of majority is "collateral" support not enforceable by contempt proceedings.

APPEALABILITY

The first issue we consider is whether the district court order vacating the order to show cause is appealable. Although neither party raised this question, the right to appeal is statutory and we consider it sua sponte. E.g. State v. Himmerick, 499 N.W.2d 568 (N.D.1993).

Section 27-10-01.3(3), NDCC, permits an appeal to the supreme court "from any order or judgment finding a person guilty of contempt." E.g., Ronngren v. Beste, 483 N.W.2d 191 (N.D.1992). Although, in this case, the trial court did not enter an order or judgment finding any person guilty of contempt, this court, long ago, held that an order dismissing an order to show cause why a party should not be held in civil contempt of court is appealable under the predecessor of NDCC Sec. 28-27-02. 1 Merchant v. Pielke, 9 N.D. 245, 83 N.W. 18 (1900).

In Merchant, the court held that section 5626(2), Rev.Codes (1899), a precursor to NDCC Sec. 28-27-02(2), and identical to it, authorized an appeal from an order dismissing "[t]he following orders when made by the [trial] court may be carried to the supreme court:

an order to show cause in a contempt proceeding. Section 5626(2), Rev.Code, said:

"2. A final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment."

Reasoning that an order to show cause in a contempt proceeding is comparable to a motion in an action after judgment, the court held that the order dismissing the order to show cause was a final order affecting a substantial right and hence, was appealable under Sec. 5626(2). Merchant, 9 N.D. at 248, 83 N.W. at 20; N.D.Rev.Codes Sec. 5937 (1899) [presently NDCC Sec. 27-10-08 (1993 Supp.) ].

Although section 5954, N.D.Rev.Codes (1899), a predecessor to NDCC Sec. 27-10-01.3(3), appeared to prohibit an appeal from any order in a contempt proceeding other than one adjudging a defendant guilty, the court rejected that interpretation as contrary to the purpose of the statute.

"[Section 5954, Rev.Codes] gives an accused party who has been adjudged guilty of contempt a right of appeal in both civil and criminal contempts. But we do not think it was intended thereby to exclude all other appeals in connection with contempt. Before that statute was enacted, this court had held in the Davis Case that an accused person adjudged guilty of a criminal contempt had no right of appeal.... The statute was, we think, enacted to establish a contrary rule to that announced in the Davis Case, 2 but we do not think it ever entered the legislative mind to suspend a portion of the general appeal law in civil cases." Merchant, 9 N.D. at 248-49, 83 N.W. at 20.

We believe Merchant governs the issue of appealability in this case. Our present statutes on appealability differ only inconsequentially from the statutes construed in Merchant. We presume the legislature is aware of judicial construction of a statute, and from its failure to amend a particular statutory provision, we may presume it acquiesces in that construction. E.g., Kline v. Landeis, 147 N.W.2d 897 (N.D.1966). Accordingly, the order vacating the order to show cause why Daryl should not be held in contempt of court for failure to comply with his court-ordered support obligation is a final, appealable order. See also Bergstrom v. Bergstrom, 320 N.W.2d 119 (N.D.1982) [permitting an appeal from an order finding the defendant not guilty of civil contempt].

MOOTNESS

Daryl contends that the appeal should be dismissed because it is moot. He argues that he has purged himself of his obligation under the divorce decree by paying the $900, and regardless of the outcome of the appeal, contempt proceedings will not lie against him.

Generally, when the question raised in an appeal becomes moot, we dismiss the appeal. Walker v. Schneider, 477 N.W.2d 167 (N.D.1991). An appeal is moot when, due to the lapse of time or occurrence of related events, an appellate court is unable to render effective relief. Backes v. Byron, 443 N.W.2d 621 (N.D.1989). However, when the controversy is one of great public interest and involves the power of public officials, or when the question is capable of repetition, yet evades review, we will not dismiss the appeal. Walker, 477 N.W.2d at 169.

We do not believe that Carlotta's appeal is moot simply because Daryl has paid the arrearage. A party seeking a contempt order may seek imposition of several remedial sanctions including "an amount to reimburse In addition, this issue is one that is capable of repetition, yet will continue to evade review. See Collins v. Collins, 495 N.W.2d 293 (N.D.1993). In Collins, supra, the trial court had entered an order denying a request by the State of Nevada for income withholding against Larry Collins, whose child resided in that state. Larry argued that, because he had quit his job and left North Dakota, the issue was moot and the appeal should be dismissed. We rejected the argument, reasoning that the question of whether an interstate income withholding order should be entered under these circumstances was capable of repetition and would evade review when an obligor quit a job or left the state to evade income withholding for child support. Id.

                the party for costs and expenses incurred as a result of the contempt."   NDCC Sec. 27-10-01.4(1)(a).  Thus, Carlotta was entitled to request reimbursement for her litigation costs incurred as a result of bringing the original contempt action.  Daryl's subsequent attempt to pay the arrearage does not render Carlotta whole or afford her the full measure of relief to which she may be entitled under the statute.  See Thorlakson v. Wells, 207 N.W.2d 326 (N.D.1973)
                

This case presents an analogous situation. An obligor who refuses to comply with a court order of support for a post-majority-age child, forces the obligee to incur the costs of litigation, despite the obligor's decision, when faced with an order to show cause, to pay the arrearage in an effort to purge the contempt. Therefore, we agree with Carlotta that the question is capable of repetition, yet will otherwise evade review, and we conclude that it is not moot.

ENFORCEMENT OF JUDGMENT

Carlotta argues that the trial court was wrong in concluding that contempt was not an appropriate means of enforcing the support provision of the divorce decree. Daryl, relying on our holdings in Klitzke v. Klitzke, 308 N.W.2d 385 (N.D.1981), and Freyer v. Freyer, 427 N.W.2d 348 (N.D.1988), argues that the district court was correct in concluding that support for an adult child is collateral support, not direct child support for a minor child, and therefore, contempt is not an appropriate enforcement mechanism. That conclusion, however, reflects a misunderstanding of the basis for the distinction between direct and collateral support.

Klitzke concerned an appeal from an original divorce judgment in which the husband argued that the trial court abused its discretion in awarding the wife use...

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