Small v. Small

• Decision Date: 28 April 1980
• Parties: Virginia H. SMALL v. Beverly O. SMALL.
• Court: Maine Supreme Court

Page 1318

413 A.2d 1318

Virginia H. SMALL v. Beverly O. SMALL.

Supreme Judicial Court of Maine.

April 28, 1980.

Vafiades, Brountas & Kominsky, Susan R. Kominsky (orally), Bangor, for plaintiff.

Paine & Lynch, John D. Bunker (orally), Martha J. Harris, Bangor, for defendant.

Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS and GLASSMAN, JJ.,

WERNICK, Justice.

Defendant Beverly Small has appealed from a judgment of the Superior Court (Hancock County) which (1) refused modification of the obligation to pay alimony which had been imposed on defendant by a 1974 judgment adjudicating a divorce between plaintiff Virginia Small and the defendant, and (2) adjudged defendant in contempt of court for having failed to comply with court judgments and orders requiring defendant to pay past due amounts of alimony remaining unpaid.

Defendant raises two points on appeal. He says, first, that the Superior Court Justice abused his discretion in refusing to grant defendant a modification of his obligation to pay alimony. Defendant maintains, second, that the contempt judgment against him was a judgment of criminal contempt. This being so, says defendant, the governing standard as to the proof of the essential element that defendant had the present ability to pay the alimony arrearages adjudicated due and unpaid was proof beyond a reasonable doubt, and the evidence was insufficient to satisfy that standard.

We deny the appeal and affirm the judgment of the Superior Court.

On September 9, 1974, Virginia and Beverly Small were adjudged divorced, and by the final judgment of divorce ¹ defendant Beverly Small was required to pay alimony to Virginia Small in the amount of $55.00 per week. It was not long before defendant fell behind in making the payments, and since November 1975 Virginia Small has repeatedly resorted to the courts to enforce the judgment for alimony. On November 5, 1975 she filed a Petition for Arrearages and for Contempt, which was dismissed without prejudice on December 8, 1975. Again on December 31, 1975 plaintiff filed a Petition for Arrearages and for Contempt. Regarding that Petition, the Superior Court found defendant in arrears in the amount of $2,820.00, and further adjudicating that defendant had a present ability to pay a portion of those arrearages, the Court ordered judgment for plaintiff in the full amount of the arrearages and that defendant be committed to the county jail "until he . . . (paid) . . . $500.00." The order committing defendant to jail was stayed for several weeks to give defendant an opportunity to meet the payment requirement. Defendant did make the payment. The Court's Order also required that beginning March 1, 1976, defendant make quarterly disclosures of his earnings and assets.

In various other proceedings to enforce the 1974 judgment for alimony instituted by Virginia Small in February 1977, June 1977, November 1977, and June 1978, the Superior Court, in each instance, (1) found defendant in arrears, ² (2) found defendant had a present ability to pay all or part of the arrearage, (3) adjudicated defendant in contempt for failing to make the alimony payments, (4) ordered his imprisonment until he "purged" himself by making the payments, (5) found defendant in contempt for failing to make continuing disclosure required by the January 15, 1976 Order of the Court, and (6) allowed defendant to "purge" himself of the latter contempt by filing statements of earnings with the Court. In each of the instances it appears that defendant avoided going to jail by making the required payments.

The appeal now before us is from an April 5, 1979 judgment, ordered entered after a hearing held March 29, 1979. The judgment adjudicated that as of March 23, 1979, defendant was in arrears in his payments of weekly alimony in the amount of $2,640.00. Having found that defendant had the present ability to pay the entire amount of this arrearage, the Justice adjudged defendant in contempt and accompanied this adjudication with an Order that

"(d)efendant may purge himself of contempt by payment of $1,320.00 on or before April 30, 1979; by payment of $1,320.00 on or before May 31, 1979 . . . ."

The Justice also denied defendant's cross-motion to have the amounts of alimony he was obligated to pay reduced or to have the obligation for alimony eliminated. ³

1.

We address, first, defendant's contention that the Superior Court Justice was guilty of an abuse of discretion in refusing to modify the 1974 divorce judgment to reduce, or eliminate, defendant's obligation to pay alimony. As recently as in Capron v. Capron, Me., 403 A.2d 1217, 1218 (1979), this Court reiterated the rule, long established, as to the appellate review of a decision refusing to modify a judgment requiring payments of alimony or support:

"Unless the Law Court can determine that the court (below) has violated some positive rule of law or has reached a result which is plainly and unmistakably an injustice that is 'so apparent as to be instantly visible without argument,' the ruling appealed from must be approved. Goodwin v. Prime, 92 Me. 355, 362, 42 A. 785, 787 (1898)."

See also Strater v. Strater, 159 Me. 508, 196 A.2d 94 (1963).

With such the rule governing our review, we must sustain the Superior Court's refusal to grant defendant the modification relief he sought by his cross-motion.

The evidence disclosed that defendant is a self-employed carpenter who works intermittently. He had been out of work for three weeks immediately prior to the March 29, 1979 hearing. The evidence also showed, however, that defendant was not painstaking in his efforts to have work; he preferred to rely upon jobs for "regular customers" and others who sought him out. Defendant also testified that he no longer owned two parcels of real estate, awarded to him in the divorce settlement, because he had "sold" them for two dollars (one dollar per parcel) to a third party as "security." Defendant explained that his purpose in conveying the real estate was to provide a form of "insurance": the third party was to hold the property, and if defendant ever became ill, or otherwise incapacitated, the property was to be sold to meet his expenses. At the time of the hearing both properties remained in the name of the third party. Defendant had also turned over his tools to the same person, which were being kept in a workshed on one of the parcels of real estate conveyed. Defendant was freely using the tools as well as both real estate parcels. Defendant's answers to interrogatories disclosed that his gross annual income in 1978 was more than $22,000.00 as compared with a gross income of approximately $13,000.00 in 1976.

At the time of the March 1979 hearing, plaintiff Virginia Small was receiving workers' compensation of $38.14 per week for total permanent incapacity to work. She was the owner of a three unit apartment house she acquired as part of the divorce settlement. The income she receives from the apartment house, according to her testimony, rarely exceeds the maintenance costs. At the time of the hearing only one of the units was being rented. She had been trying to sell the house since 1974. Several years ago, she purchased a new house in which she currently resides.

Plaintiff further testified that she and her daughter jointly hold a bank account which contains approximately $6,000.00. This money, plaintiff contended, was really the property of her daughter and son-in-law. From this account plaintiff took the amount of money necessary to make the down payment on her newly purchased house, but plaintiff claims she "borrowed" the money; she is expected to, and considers herself obligated, to pay it back.

In all of these circumstances, more particularly since the presiding Justice would be justified on the evidence in finding that it was within defendant's power to increase his income by a determined effort to maintain steady employment, we conclude that the Justice was not guilty of an abuse of discretion in denying defendant's cross-motion seeking modification of his obligation for payments of alimony.

2.

We turn to defendant's other contention on appeal, that the evidence was insufficient to prove beyond a reasonable doubt that defendant had a present ability to pay the arrearage adjudicated due. As we have already stated, this contention by defendant has as its premise another claim by defendant, that the contempt adjudicated against him was a criminal contempt pursuant to the requirements of 19 M.R.S.A. § 722 ⁴ which, says defendant, mandates criminal contempt, to the exclusion of civil contempt, for the enforcement of court orders for the payment of alimony or support.

We reject defendant's contention because we reject defendant's underlying premise that the Superior Court Justice was statutorily required to, and did in fact, use criminal contempt against defendant for his default in the payment of alimony. We decide that in this case the Superior Court Justice adjudicated defendant guilty of civil, rather than criminal, contempt and that in so doing, the Justice acted lawfully.

To ascertain whether a contempt proceeding is civil or criminal in nature courts generally look to the dominant purpose the proceeding aims to fulfill. See Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). If the primary purpose of the proceeding is to deal with an affront to the dignity and authority of the Court, or an obstruction to the functioning of the Court, by punishing the contemnor to vindicate the dignity, authority or power of the Court, the proceeding is for criminal contempt. See In re Bernard, Me., 408 A.2d 1279 (1979). If, however, the primary character of the alleged contempt is the refusal of a party to comply with a court order directed toward securing the rights of another party, then the proceedings, by way of contempt, to achieve such compliance and thereby enable the other party to enjoy benefits...