State ex rel. Fry v. Fry

• Jurisdiction: Oregon
• Parties: STATE of Oregon ex rel. Alberta Ann FRY, Respondent, v. Robert Frederick FRY, Appellant.
• Citation: 28 Or.App. 403,559 P.2d 1293
• Court: Oregon Court of Appeals
• Decision Date: 08 February 1977

Page 1293

559 P.2d 1293

28 Or.App. 403

STATE of Oregon ex rel. Alberta Ann FRY, Respondent, v. Robert Frederick FRY, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Jan. 20, 1977.

Decided Feb. 8, 1977.

William A. Mansfield, Medford, argued the cause and filed the brief for appellant.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and THORNTON and RICHARDSON, JJ.

THORNTON, Judge.

Defendant appeals from a contempt citation for wilful failure to comply with the support provisions of a 1972 decree of dissolution. The trial court found defendant in contempt, sentenced him to 30 days in jail, suspended 20 days of the sentence and placed him on probation for five years.

The marriage between the parties was dissolved in March of 1972. The decree provided that defendant pay child support of $150 per month for each of three children. The support payments were to increase to $200 per month within one year of the decree. Payments were later reduced to $165 per month per child when the wife began working full time.

The record in this case reveals six separate motions for contempt citations between June of 1973 and August of 1976 for failure to timely pay child support. Prior to the proceedings from which defendant appeals, only one of the contempt motions was pursued to a conclusion. In April of 1975 defendant was found in contempt of court for failure to meet his child support obligations and was placed on probation for a period of 12 months. The court at that time also found that 'there has been a deliberate and willful attempt by the respondent to reduce his income in an effort to get his child support obligations lowered.'

The citation for contempt in the present case arose specifically out of a support payment due in December of 1975 which was not paid until the following month, but the record shows a history of tardiness and omissions by defendant in the payment of support obligations.

Defendant urges three assignments of error in his brief. The first assignment, that the motion for citation to show cause was not accompanied by an affidavit, was abandoned at oral argument after defendant became aware of ORS 23.765(4). ¹

In his second assignment of error defendant urges that the finding of contempt was erroneous because it was based in part on prior contempt citations on which there was no disposition or which resulted in dismissal. The record is clear that the trial court first found defendant in contempt, then utilized the entire record, including prior contempt motions, as factors in determining the imposition of a sanction. We find no error in this procedure.

Defendant's third assignment is that the trial court abused its discretion in finding contempt and imposing a jail sentence. Proof of the decree of dissolution and failure to comply with all its terms constitutes a prima facie case of contempt. To overcome this...