McVay v. Johnson

• Decision Date: 11 September 1986
• Citation: McVay v. Johnson, 727 P.2d 416 (Colo. App. 1986)
• Docket Number: 84CA1119
• Parties: John R. McVAY, Petitioner-Appellant, v. Melanie L. JOHNSON, Respondent-Appellee. . III
• Court: Colorado Court of Appeals

Page 416

727 P.2d 416

John R. McVAY, Petitioner-Appellant, v.Melanie L. JOHNSON, Respondent-Appellee.

No. 84CA1119.

Colorado Court of Appeals Div. III.

Sept. 11, 1986.

John R. McVay, pro se.

Frederick L. Swenson, Boulder, for respondent-appellee.

BABCOCK, Judge.

John R. McVay(father) appeals the trial court's order denying his motion for reduction of child support and the judgment finding him in contempt of court for failure to pay court-ordered child support.We affirm the order and reverse the contempt judgment.

Father and Melanie L. Johnson(mother) entered into a stipulation granting custody of their child to the mother with visitation to the father, and providing that father would pay $175 per month child support through the registry of the court.The stipulation was made an order of the court.

Thereafter, father was laid off from his employment.He filed a motion pursuant to § 14-10-122, C.R.S., for modification of the support order.After a hearing, the referee found that father had shown a change of circumstances.However, he further found that father did not present evidence that the change was continuing, and therefore, he concluded that the original child support order was not unconscionable.The trial court affirmed the referee's denial of father's motion.

Nine months later, on mother's motion, a contempt citation was issued pursuant to C.R.C.P. 107.The trial court appointed counsel to represent father in the contempt proceeding.After a hearing, the trial court found that father did not have the present ability to pay child support, but it found that in the past father had the ability to pay the ordered support, but did not do so.Consequently, it imposed the "punitive sanction" of 10 days' imprisonment.However, that sanction was to be suspended indefinitely if father paid $60 per month child support, and $20 per month attorney fees.Meanwhile, arrearages on the support order would continue to accrue.

Father has appealed both the denial of his motion to modify the support order and the finding of contempt.

Father first contends that the referee erred in denying his motion for modification of support and that the trial court erred in affirming that denial.We disagree.

Section14-10-122(1), C.R.S., provides that support orders "may be modified ... only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable."The burden on the party who seeks modification is heavy.In re Marriage of Anderson, 638 P.2d 826(Colo.App.1981).Also, the district court is bound by a referee's findings of fact, unless those findings are without evidentiary support.In re Marriage of Brantley, 674 P.2d 1388(Colo.App.1983).

Here, father's own testimony supported the referee's finding that the change in circumstances was not "continuing."Thus, that finding dictated the denial of father's motion to reduce child support, and the district court did not err in affirming the referee.

Father next contends that the trial court erred when it found him in contempt based upon an ability to pay child support in the past.Under the circumstances here, we agree.

There are two categories of contempt of court set forth in C.R.C.P. 107, civil and criminal.Civil contempt proceedings are remedial, and their purpose is to compel performance of an act within the power of the contemnor.In contrast, criminal contempt proceedings involve the imposition of a fine or imprisonment on the contemnor as punishment for an act in derogation of the power or dignity of the court.People v. Razatos, 699 P.2d 970(Colo.1985).A contempt order in which punishment is conditioned upon future performance of a duty is remedial in nature.In re Marriage of Crowley, 663 P.2d 267(Colo.App.1983).In order to confine a...