Sazama v. State ex rel. Muilenberg, No. 23959.

• Court: Supreme Court of South Dakota
• Writing for the Court: Gilbertson
• Citation: 729 N.W.2d 335,2007 SD 17
• Decision Date: 21 February 2007
• Docket Number: No. 23959.
• Parties: Ed SAZAMA, Plaintiff, Respondent and Appellant, v. STATE of South Dakota, ex rel., Dawn MUILENBERG, Defendant, Petitioner and Appellee.

729 N.W.2d 335 2007 SD 17 Ed SAZAMA, Plaintiff, Respondent and Appellant,
v.
STATE of South Dakota, ex rel., Dawn MUILENBERG, Defendant, Petitioner and Appellee. No. 23959. Supreme Court of South Dakota. Considered on Briefs August 28, 2006. Decided February 21, 2007.

[729 N.W.2d 338]

Thomas E. Alberts, Avon, South Dakota, Attorney for plaintiff, respondent and appellant.

Lawrence E. Long, Attorney General, Pierre, South Dakota, Douglas R. Kettering, Special Assistant Attorney General, Yankton, South Dakota, Attorneys for defendant, petitioner and appellee.

GILBERTSON, Chief Justice.

[¶ 1.] Ed Sazama (Sazama) appeals a judgment of contempt for failure to pay child support. Sazama also appeals an order imposing ten days in jail for each month that he fails to pay child support upon the filing of an affidavit of failure to pay. We affirm in part and reverse and remand in part.

FACTS AND PROCEDURE

[¶ 2.] Sazama and Dawn Muilenberg (Muilenberg) had two children during their relationship. After the breakup of their relationship in 1997, a court order dated March 4, 1998, decreed that the children would reside with Muilenberg and Sazama was ordered to pay child support in the amount of $386.00 per month beginning November 1, 1997. The order also required Sazama to pay $256.00 per month for child care expenses and an additional $50.00 per month in arrearages.

[¶ 3.] After the 1997 breakup, Sazama moved to Colorado and obtained employment. His wages were garnished to pay the child support order until 2000 when he was injured and was no longer working. Sazama became homeless and lived on the streets in Colorado until he moved back to South Dakota sometime in 2002. Upon returning to South Dakota, he remained homeless and lived on the streets in Yankton for approximately eighteen months until he moved in with his girlfriend. He lived with his girlfriend for approximately another eighteen months prior to this appeal. Sazama claims to be an alcoholic and unable to control his drinking.

[¶ 4.] Muilenberg moved from South Dakota to Nebraska to be closer to her family after the child support judgment and order were entered. She did receive some child support from Sazama while living in Nebraska. However, by the time of the contempt proceeding, Sazama had paid a total of $2,624.88 in 1997; $589.55 in 2001; $255.20 in 2002; and $126.00 in 2004 in child support, and had arrearages totaling $49,224.81 while Muilenberg was domiciled in Nebraska. Muilenberg returned to South Dakota in 2003. Child Support Enforcement records indicate Sazama

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failed to make any payments during the eight months Muilenberg lived in South Dakota before filing the present action.

[¶ 5.] In August 2005, the State of South Dakota began contempt proceedings against Sazama, who was served with an order to show cause based on an affidavit of arrearages executed by Joan Gudahl, Officer of Child Support Enforcement (Gudahl). The affidavit showed that Sazama had accrued child support arrearages in the amount of $62,064.81 from September 1, 1996 through August 2005. Child Support Enforcement records indicated that Sazama failed to make any payments for the support of his children commencing July 2003 through August 2005.¹

[¶ 6.] Counsel was appointed for Sazama, and a hearing was held on the matter on November 9, 2005. Sazama testified that he had begun working for BP Painting on October 10, 2005, and prior to that had done yard work and odd jobs for cash in 2004 and 2005. He also testified that he had applied for and been denied Social Security disability income, which was denied due to the agency's assessment that he had some ability to work. Sazama further testified he was aware he had a child support obligation payable to Muilenberg and believed it to be somewhere in the range of $300 per month, although he testified the State of Colorado had garnished approximately $200 per week during his employment in 1999 and 2000. Sazama presented no legal excuse for his failure to pay child support during the time he was employed or unemployed. Instead, he conceded that he did not make any attempt at payment after leaving Colorado, offering as his reason that he did not know where Muilenberg was living.

[¶ 7.] The circuit court found Sazama was aware of the child support order, failed to comply with the order, and had no legal excuse for non-compliance. It also found he had the ability to provide for his children but failed to do so, and found him in contempt of court for failure to pay child support. The circuit court sentenced Sazama to ten days in the Bon Homme County Jail beginning the first of each month if he failed to pay the child support for the previous month. It entered a judgment effective through October 27, 2005, in the amount of $62,783.63 and informed Sazama he could purge himself of the contempt by making his required monthly payments as determined based on his monthly income. The court also noted that it believed Sazama was using his alcoholism as an excuse not to work, and that he needed to seek assistance with his addiction and maintain employment. The circuit court entered findings of fact and conclusions of law consistent with its oral rulings.

[¶ 8.] Sazama appeals, raising three issues for this Court's review:

1. Whether the circuit court had jurisdiction of the civil contempt proceedings when the affidavit in support of the show cause order did not include the necessary jurisdictional allegations.

2. Whether the circuit court erred when it found Sazama had knowledge of an order, the ability to comply with the order, and that he had willfully or contumaciously disobeyed the order.

3. Whether the circuit court's order setting the penalty for continued disobedience violated Sazama's due process rights when the penalty imposed did not provide a method for

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Sazama to purge himself of the contempt.

STANDARD OF REVIEW

[¶ 9.] "The issue of jurisdiction may be raised at any time and is reviewed by this [C]ourt de novo." Wold Family Farms, Inc. v. Heartland Organic Foods, Inc., 2003 SD 45, ¶ 12, 661 N.W.2d 719, 723 (citing Devitt v. Hayes, 1996 SD 71, ¶ 6, 551 N.W.2d 298, 300). A circuit court's remedy or punishment for contempt of court is reviewed under the abuse of discretion standard. Id. (citing Harksen v. Peska, 2001 SD 75, ¶ 10, 630 N.W.2d 98, 101). However, when a claim asserts a violation of a constitutional right, our standard of review is de novo. State v. Ball, 2004 SD 9, ¶ 21, 675 N.W.2d 192, 199 (citing State v. Hodges, 2001 SD 93, ¶ 8, 631 N.W.2d 206, 209). "We review the circuit court's conclusions of law under the de novo standard." A-G-E Corp. v. State, 2006 SD 66, ¶ 13, 719 N.W.2d 780, 785 (citations omitted). We review the circuit court's findings of fact under the clearly erroneous standard. Keller v. Keller, 2003 SD 36, ¶ 8, 660 N.W.2d 619, 622 (quoting Harksen, 2001 SD 75, ¶ 9, 630 N.W.2d at 101).

ANALYSIS AND DECISION

[¶ 10.] 1. Whether the circuit court had jurisdiction of the civil contempt proceedings when the affidavit in support of the show cause order did not include the necessary jurisdictional allegations.

[¶ 11.] Our prior decisions have treated the failure to precisely plead all factual elements of contempt as a "jurisdictional" defect; i.e., one that deprives the court of subject matter jurisdiction. Our seminal case of Thomerson v. Thomerson, underscored this premise stating that "[u]nless every material fact constituting the alleged violation is stated in the affidavit, the court has no jurisdiction." 387 N.W.2d 509, 513 (S.D.1986) (citation omitted). Thomerson's statement comes from a line of authorities originating in 1871. In our view these cases are inconsistent with current understandings of notice pleading and subject matter jurisdiction. Having reconsidered this matter, we now discontinue the practice of attaching "jurisdictional" consequences to technical pleading deficiencies in pleadings seeking civil contempt.

[¶ 12.] Thomerson is based upon Simmons v. Simmons, 66 S.D. 76, 80, 278 N.W. 537, 539 (1938) (citing In re Solberg, 51 S.D. 246, 213 N.W. 9 (1927); Freeman v. City of Huron, 8 S.D. 435, 66 N.W. 928 (1896); State v. Sweetland, 3 S.D. 503, 54 N.W. 415 (1893)). The jurisdictional language at issue originated in Sweetland's statement that the affidavit must "`show a case in point of jurisdiction within the provisions of the law by which such proceedings are authorized. . . .'" 3 S.D. at 506, 54 N.W. at 416 (quoting Batchelder v. Moore, 42 Cal. 412, 414-15 (1871)) (citations omitted).² The cases following Sweetland expanded

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this jurisdictional language to require that every material fact constituting the alleged contempt must be in the affidavit or the court has no jurisdiction. Thomerson, 387 N.W.2d at 513 (citation omitted).³

[¶ 13.] However, this jurisdictional analysis does not reflect modern notice pleading jurisprudence. Under SDCL 15-6-8(a), pleadings need only contain "(1) [a] short and plain statement of the claim showing that the pleader is entitled to relief; and (2)[a] demand for judgment. . . ." Thus, "`[u]nder the Rules[,] a case consists not in the pleadings, but the evidence, for which the pleadings furnish the basis. Cases are generally to be tried on the proofs rather than the pleadings.'" 5 Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure: Civil 3d § 1182 (quoting De Loach v. Crowley's Inc., 128 F.2d 378, 380 (5th Cir.1942)). That is because:

[T]he function of a pleading in [current] practice is to inform the opposing party and the court of the nature of the claims and defenses being asserted by the pleader and, in case of an affirmative pleading, the relief being demanded. . . . The rules reflect a realization that the supposed effectiveness of pleadings in narrowing and defining the issues-a conception that characterized the common law and code procedural systems-is largely a myth,...