Mehl v. Mehl, 950261

Decision Date08 April 1996
Docket NumberNo. 950261,950261
Citation545 N.W.2d 777
PartiesJudith A. MEHL, Plaintiff and Appellee, v. Thomas D. MEHL, Defendant and Appellant. Civil
CourtNorth Dakota Supreme Court

Judith A. Mehl, Fargo, pro se, submitted statement.

Daniel E. Bertsch, Assistant State's Attorney, Regional Child Support Enforcement Unit, Fargo, for plaintiff and appellee.

Thomas D. Mehl, Fargo, pro se.

VANDE WALLE, Chief Justice.

Thomas Mehl appealed from a district court order affirming a judicial referee's finding him in contempt of court for failure to pay court-ordered child support. We conclude the finding that Mehl is in arrears on child support payments is clearly erroneous because there is no evidence showing what amount, if any, is unpaid. We, therefore, reverse.

Thomas and Judith Mehl were divorced on January 11, 1991. Two of their five children, John and Mark, were minors at the time of the divorce proceedings, and Judith was awarded their physical custody. The decree ordered Thomas to pay child support of $400 per month, with payments to be made through the office of the Cass County Clerk of District Court. The support obligation was reduced to $50 per month in an Amended Judgment on September 4, 1991.

By request of the clerk of court, under Section 14-09-08.1(3), N.D.C.C., the district court issued an order to show cause on April 21, 1995, directing Thomas to appear at a hearing to show why he should not be held in contempt for failing to pay child support as required by the divorce decree. The show-cause hearing was held before a judicial referee on August 1, 1995. The referee found past due child support of $5,810 and concluded Thomas was in contempt of court for failing to obey the district court's child support order. The referee sentenced Thomas to serve thirty days in the county jail, with the entire sentence suspended for one year on the condition Thomas make $150 monthly support payments, including $100 per month toward arrearages, until his past due support is paid in full. Both Thomas and Judith requested the district court to review the judicial referee's decision. On October 5, 1995, the district court entered an order affirming the finding of contempt.

We have gleaned from the sometimes disconnected, incoherent, and rambling written and oral arguments of Thomas, the issues which we discuss herein. Thomas challenges the authority of the State of North Dakota to enforce his child support obligation. The divorce decree requires Thomas to make support payments to the clerk of the district court, who then remits payments to Judith, as the custodial parent, or her assignee, pursuant to the statutory requirements of Section 14-09-08.1, N.D.C.C. Under subsection 14-09-08.1(3), N.D.C.C., the clerk of court is authorized to inform the district judge when support payments are in arrears and to request the judge to issue a citation for contempt of court against the delinquent obligor. Under Section 11-16-01(15), N.D.C.C., the state's attorney is authorized to assist the district court in enforcing compliance with a decree ordering payment of child support. The State clearly has statutory authority to enforce the support provisions of the decree.

Thomas also asserts Judith rescinded her assignment of rights for the Department of Human Services to seek reimbursement from Thomas for medical assistance provided to Judith for John and Mark. The Department's right to seek reimbursement for benefits provided to a child is derived not only from the assignment of rights given by the custodial parent but also by statute. See Sprynczynatyk v. Celley, 486 N.W.2d 230 (N.D.1992). Under Section 50-24.1-02.1, N.D.C.C., the Department is given a statutory right of assignment to seek reimbursement for medical assistance provided to needy persons. Under Section 50-09-06, N.D.C.C., any state agency providing AFDC (Aid to Families with Dependent Children) benefits is, likewise, given a statutory assignment to seek reimbursement from support payments made for the benefit of a child. By these laws, the legislature has clearly given state agencies who provide assistance to needy persons the right to be reimbursed for that assistance from persons who have support obligations to those receiving the assistance. Thomas's arguments on this issue are without merit.

Thomas also challenges the authority of a judicial referee to hear child support enforcement cases. Judicial referees have statutory authority under Section 27-05-30(2), N.D.C.C., to hear cases of this nature. By authority of Art. VI, § 3, N.D. Const., and Section 27-05-30, N.D.C.C., this court adopted AR 13 of the Administrative Rules and Orders providing for "the qualifications, the extent and assignment of authority, procedure and the conduct of the role of judicial referees" in this State. Under AR 13, § 8, any party may request in writing to have a proceeding before a judicial referee heard by a district court judge. The record in this case shows that in past proceedings Thomas has availed himself of this right and requested the proceedings scheduled before a judicial referee to be heard, instead, by a district court judge. Thomas did not avail himself of that right for these show-cause proceedings. We conclude his attack in this appeal on the referee's authority is without merit.

Contempt proceedings are appropriate for enforcing court-ordered child support. Section 14-08.1-05(2), N.D.C.C.; see also Heidinger v. Heidinger, 426 N.W.2d 566 (N.D.1988). We explained the nature of contempt proceedings against an obligor who failed to pay court-ordered child support in Baier v. Hampton, 417 N.W.2d 801, 805 (N.D.1987):

"Usually, ... the sanction is conditional in nature so that contemnors carry ' "the keys of their prison in their own pockets" ' and stand committed unless and until they perform an affirmative act.

* * * * * *

"[The defendant's] failure to pay child support constitutes a duty which is yet within his power to perform. N.D.C.C. § 27-10-04(2). The purpose of the sanction that permitted [the defendant] to purge thirty days of the jail sentence by paying the past due child support was to coerce his payment of past due child support for the benefit of the children. He thus carried the keys to prison in his own pocket. The coercive purpose of that sanction characterizes that conduct as civil contempt." 1

Here, Thomas was held in contempt for failing to pay child support, and he "carried the keys to prison in his own pocket" by paying child support arrearages.

Thomas also argues that the findings of the amount of support due and owing are not supported by the evidence. Our standard of review in this type of case is summarized in Throndset v. Hawkenson, 532 N.W.2d 394, 397 (N.D.1995):

"When it is a...

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