Lester v. Lester

• Decision Date: 26 June 1978
• Docket Number: No. 12082,12082
• Citation: 99 Idaho 250,580 P.2d 853
• Parties: Dawn Louise LESTER, Plaintiff-Appellant, v. Theodore W. LESTER, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 853

580 P.2d 853

99 Idaho 250

Dawn Louise LESTER, Plaintiff-Appellant, v. Theodore W. LESTER, Defendant-Respondent.

No. 12082.

Supreme Court of Idaho.

June 26, 1978.

William H. Foster, Grangeville, for plaintiff-appellant.

Eli Rapaich of Rapaich & Knutson, Lewiston, for defendant-respondent.

McFADDEN, Justice.

In 1972, plaintiff-appellant Dawn Louise Lester instituted a divorce action against her then husband, defendant-respondent Theodore W. Lester. The parties orally stipulated to a division of their community property, the custody and support of their three minor children, and the attorney fees to be paid. After the stipulation was entered, respondent Theodore W. Lester withdrew his answer and counterclaim to his wife's complaint, and consented to entry of a default judgment against him.

The trial court heard the action as a default, and on March 24, 1972, entered findings of fact, conclusions of law, and decree. Under the terms of the decree, which was in accord with the stipulation, the amount of the monthly child support payments was to be determined by respondent husband's "income" during the previous years, with a certain minimum amount to be paid monthly. ¹ The decree further required that each October respondent would adjust the amount of the payments in accordance with any changes in his income for the previous period.

In August, 1974, appellant, who had remarried in the interim, by a motion supported by her affidavit, sought an order to show cause seeking to hold respondent in contempt of court for failing to make the child support payments in accordance with the provisions of the 1972 divorce decree. She asserted that respondent's income required him to pay about three times the child support he had been paying and that he had refused to adjust the payments to reflect his increase in income. In response, respondent denied his former wife's assertion of increased income. Respondent also petitioned the court for modification of the decree's support provisions so as to reduce the child support payments. The trial court held two hearings on the issues thus presented and entered a single memorandum opinion which constituted the findings of fact and its order.

The trial court first found that respondent was not in contempt of court. It noted that respondent's contentions concerning the meaning of the March, 1972, decree as to the requirements for support payments for their minor children were advanced in good faith and were sufficiently meritorious to justify a judicial "clarification" of the meaning of the decree and of respondent's responsibilities. Secondly, the court found that "the parties intended the word 'income' to mean 'taxable income' . . . (i. e.) the remainder of a person's adjusted gross income after subtracting the individual's itemized deductions and the exemption allowance which are allowable by the Internal Revenue Code." Thirdly, the court used this definition to compute the amount of child support accruing since the entry of the divorce decree and found respondent to be $3,876 in arrears. Fourthly, the court denied respondent's motion to modify the decree to reduce the amount of child support payments. Finally, the court denied appellant her request for attorney fees, stating that "there is no showing that plaintiff lacks funds from which she can pay her attorney fees . . .." The court entered its order wherein it reiterated its conclusion that respondent was not entitled to any modification of the decree; that he was in arrears $1,600 for 1973 and $2,268 for 1974, which should be paid with 6% interest on or before October 1, 1975, and ordered compliance with its conclusions. From this order appellant appealed. Respondent, however, did not appeal from the denial of his petition for modification.

Appellant, by her appeal, raises three primary issues for consideration. The first issue is whether the trial court erred in refusing to hold respondent in contempt of court when it found that he was in arrears in the amount of $3,876 for the years 1973 and 1974. The second issue is whether the trial court erred in its determination that the term "income" as it was used in the decree, establishing the basis for the child support payments for the children, means "taxable income," that is, "the remainder of a person's adjusted gross income after subtracting the individual's itemized deductions and exemption allowance which are allowable by the Internal Revenue Code." The third issue is whether the trial court erred in denying appellant's request for attorney fees in these proceedings.

Respondent opposes this court's consideration of any of the issues raised by appellant, arguing that this is a contempt proceeding and that judgments and orders of a court in contempt cases are "final and conclusive." Although I.C. § 7-614 provides that "The judgment and orders of the court or judge, made in cases of contempt, are final and conclusive," under this court's constitutional prerogative "to review, upon appeal, any decision of the district courts," Idaho Const. art. 5, § 9, this court has discretion to hear an appeal in a contempt case. Parker v. Parker, 97 Idaho 209, 541 P.2d 1177 (1975); Jones v. Jones, 91 Idaho 578, 428 P.2d 497 (1967) (Taylor, C. J., concurring specially). This court finds it inappropriate to review the district court's refusal to find contempt in this case and it therefore declines to exercise this discretion.

The second issue presented by appellant addresses the trial court's finding that the term, "income," as used in the divorce decree is ambiguous and that the parties intended it to mean "taxable income" as the term is defined by § 63 of the Internal Revenue Code. ² Appellant contends that the decree is not ambiguous and that "income" plainly means "gross income," which appellant asserts is the proper measure of respondent's ability to pay child support.

When a court hearing an action to enforce a judgment finds the judgment ambiguous, it may refer to the circumstances surrounding the making of the judgment in attempting to interpret it. Evans v. City of American Falls, 52 Idaho 7, 11 P.2d 363 (1932). It may also refer to the pleadings and other parts of the record in the earlier case. Evans v. City of American Falls, supra.

In the instant case it was evident to the trial court that the term "income" as used in the context of respondent's farming operations was ambiguous. The trial court therefore considered evidence on what the parties intended by "income." It received into evidence an exchange of letters between counsel in which the parties negotiated the oral stipulation whose terms were later incorporated into the divorce decree. On the basis of this evidence the trial court found that "income" meant "taxable income."

Findings of fact entered below will not be set aside on appeal unless they are clearly erroneous, I.R.C.P. 52(a), or not supported by substantial and competent evidence. Wisdom v. Henderson, 98 Idaho 45, 557 P.2d 1118 (1976); Perry Plumbing Co. v. Schuler, 96 Idaho 494, 531 P.2d 584 (1975). While the evidence in this case is contradictory, the record contains a letter by appellant's counsel given during negotiations for and prior to entry of the oral stipulation in the record. In the letter of appellant's counsel setting forth the schedule which was to establish the support payments for the children, it is stated:

Up to $6,000 taxable income, $50.00 @ child a month, but not less than $150.00 @ month.

$6,000 income $50.00 @ child, but not less than $150 a month.

$7,000 income $65.00 @ child, but not less than $500 a month.

. . ..

It is the conclusion of the court that there was substantial, although conflicting evidence, to sustain the trial court's finding that the divorce decree was ambiguous and

that the parties intended the word 'income' to mean 'taxable income,' as the word is defined and used for purposes of defendant's federal income tax return. The term 'taxable income' is the remainder of a person's adjusted gross income after subtracting the individual's itemized deductions and the exemption allowance which are allowable by the Internal Revenue Code.

Appellant finally contends that the trial court abused its discretion in denying her attorney fees, particularly those fees generated defending respondent's petition for modification.

Idaho Code § 32-704 provides that "While an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife . . . to prosecute or defend the action." When a petition for modification of child support payments or an action to enforce support provisions is filed, the divorce action is still " pending" for purposes of this statute, even though a decree of divorce has been entered. Heidemann v. Heidemann, 96 Idaho 602, 533 P.2d 96 (1974) (upholding denial of attorney fees to former wife on her motion to collect back child support and to modify child support provisions in divorce decree); Adams v. Adams, 93 Idaho 113, 456 P.2d 757 (1969) (upholding an order requiring husband to pay attorney fees incurred by former wife in defending against his motion to modify child custody decree); Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963) (district court abused its discretion in refusing to grant former wife attorney fees incurred by her in...