Kessimakis v. Kessimakis, 15387
| Decision Date | 02 June 1978 |
| Docket Number | No. 15387,15387 |
| Citation | 580 P.2d 1090 |
| Parties | Betty L. KESSIMAKIS, Plaintiff and Respondent, v. Dale M. KESSIMAKIS, Defendant and Appellant. |
| Court | Utah Supreme Court |
Ryberg & McCoy, Salt Lake City, for defendant and appellant.
Brant H. Wall, Salt Lake City, for plaintiff and respondent.
In 1974 respondent Betty L. Kessimakis (hereinafter "Betty") filed a complaint against appellant Dale M. Kessimakis (hereinafter "Dale") for divorce. Dale signed an entry of appearance and waiver, in which he waived the time to answer or otherwise plead and consented to an entry of his default and judgment in accordance with the demand of the complaint. Default judgment was entered, awarding Betty custody of three minor children subject to reasonable visitation rights. The parties' property was divided which division Dale now claims was inequitable in favor of Betty. Dale was also required to pay $100 per month for the support of each minor child, $200 per month alimony, debts incurred by the parties during the course of the marriage, and $500 attorney's fees.
In 1975 Dale filed a motion to set aside the default divorce which motion was denied. The order denying that motion was appealed to this Court and we affirmed 1 on the grounds that the motion to set aside the default judgment was not timely and an abuse of discretion had not been shown. Subsequently, Dale filed a motion to modify the divorce decree under the court's continuing jurisdiction of U.C.A., 1953, 30-3-5. At about this same time, Betty petitioned the court that Dale be ordered to show cause why he should not have judgment entered against him for awards given in the original decree and why he should not be held in contempt. The matters were heard together. The trial court gave judgment for Betty in the amount of $16,391.40, found Dale in contempt of court, and denied his motion to modify. On appeal, Dale now claims error in the court's refusal to modify the decree and in finding him guilty of contempt. Furthermore, he asks that this Court fix a reasonable time for him to pay on the judgment for arrearages and suspending payment of alimony and support money during that period.
Dale's first claim concerns the trial court's refusal to modify the original divorce decree. This Court is clearly committed to the proposition that in order to modify a prior decree the moving party must show a substantial change of circumstances. 2 In the absence of such a showing, the decree shall not be modified and the matters previously litigated and incorporated therein cannot be collaterally attacked in face of the doctrine of res judicata. 3 Consequently, Dale's attempt to challenge the equity of the original decree cannot be tolerated.
The trial court concluded that there has not been any significant change in circumstances since the entry of the original decree. The only change which has occurred is that Dale no longer has income from a quail business ($1,000 to $2,000 per year), having sold his breeding stock and cages shortly after the divorce decree was entered. Dale testified at trial as follows:
Q. The only difference (in conditions since divorce entered) has been the fact that you are not raising any quail at this time; isn't that true?
A. Yes.
Q. Other than that, your income is essentially the same today as it was then?
A. It's a little higher now because of my wages being changed.
Q. Your wages have gone up each year; is that correct?
A. Yes.
The record supports the trial court's decision.
The challenge to the contempt judgment must likewise fail. The trial court found that Dale had refused, failed and neglected to pay various obligations under the original decree and concluded that Dale's acts, conduct and omissions were contemptuous. The court sentenced Dale to 30 days in jail with said sentence suspended upon the condition that he make some reasonable effort to pay the arrearages and meet monthly support and alimony obligations as required by the court.
The court has the power to find a person in contempt of the authority of the court for disobedience of any lawful judgment, order or process. 4 Disobedience of a valid, lawful order, in proper form and regularly entered in a divorce case, is a contempt of court. 5 On appeal, Dale claims an absence of the elements of willfulness and ability to pay. The defense of inability to comply with a court order is only effective where the person charged exercises due diligence towards compliance. 6 The trial court specifically found Dale to have refused, failed and neglected...
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Wiese v. Wiese
...of circumstances since the time of the previous order which is material to the modification he seeks. See, e.g., Kessimakis v. Kessimakis, Utah, 580 P.2d 1090, 1091 (1978). No such change of circumstances relating to paternity exists here. See Campos v. Campos, Utah, 523 P.2d 1235, 1236 (19......
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Kinsman v. Kinsman
...are changed circumstances so requiring, there can be a further adjudication thereon." Id. at 694. The next year, in Kessimakis v. Kessimakis, 580 P.2d 1090, 1091 (Utah 1978), the Court reaffirmed that, pursuant to section 30-3-5, a showing of substantial post-decree change in circumstances ......
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Porco v. Porco
...of res judicata. Consequently, [the] attempt to challenge the equity of the original decree cannot be tolerated." Kessimakis v. Kessimakis, 580 P.2d 1090, 1091 (Utah 1978) (footnote omitted). See also Foulger v. Foulger, 626 P.2d 412, 414 (Utah Plaintiff also seeks to have defendant held in......
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Christensen v. Christensen, 17084
...with the party seeking modification to show a substantial change in circumstances such as to warrant a modification. Kessimakis v. Kessimakis, Utah, 580 P.2d 1090 (1978); Gale v. Gale, 123 Utah 277, 258 P.2d 986 On February 17, 1978, less than three months after entry of the first order mod......