State ex rel. Mariah B. v. Kyle B.
| Citation | 298 Neb. 759,906 N.W.2d 17 |
| Decision Date | 26 January 2018 |
| Docket Number | No. S-16-1142,S-16-1142 |
| Parties | STATE of Nebraska ON BEHALF OF MARIAH B. and Renee B., minor children, appellee, v. KYLE B., appellant. |
| Court | Supreme Court of Nebraska |
Nancy R. Wynner, of Olson, Zalewski & Wynner, L.L.P., for appellant.
Joe Kelly, Lancaster County Attorney, and Jason M. Cooper and Braden W. Storer, for appellee.
A father appeals from an order of civil contempt for failure to pay child support. He was found indigent for purposes of appointment of counsel in the contempt proceedings. He asserts that he did not willfully disobey the support order. Further, he argues that the purge plan set forth in the contempt order is impossible to perform, making it a punitive rather than coercive sanction. We affirm.
In a paternity action filed by the State due to the involvement of the "Title IV-D Division"1 of the Department of Health and Human Services (DHHS), Kyle B. was established as the father of Mariah B. and Renee B. Genetic testing had determined with a probability of 99.999 percent that Kyle was the biological father of the children.
Kyle was ordered to pay $230 in child support per month beginning on December 1, 2015. The amount of Kyle's monthly child support obligation was established in accordance with the child support guidelines. The district court referee calculated that Kyle was capable of earning $8 per hour and of working 40 hours per week, for a total monthly earning capacity of $1,387. By failing to respond to the State's request for admissions, Kyle was deemed to have admitted this earning potential. Attached to the referee's report was evidence that Kyle had earned $4,306.90 working at a roofing company from October to December 2014 and had earned $3,578.62 working there from July to September 2014.
Kyle did not attend the hearing at which evidence was submitted pertaining to paternity and child support, and his counsel withdrew. Kyle did not appeal from the child support order.
On June 7, 2016, the court issued an order for Kyle to appear at a hearing scheduled for July 7 and show cause why he should not be in contempt for willfully failing to comply with the December 2015 order. The order to appear required Kyle to bring to the hearing his income tax returns for the past 3 years, as well as his last three wage statements. Kyle was appointed counsel on July 8, 2016, upon a finding of indigency. On September 12, the court issued another order to appear, at a hearing scheduled for November 2, on the order to show cause.
Kyle appeared at the November 2, 2016, hearing, represented by his appointed counsel. At the hearing, the State introduced a certified copy of a history of Kyle's payments to DHHS. The document demonstrated that Kyle had never made payments on the December 2015 order and that he was $2,551.59 in arrears.
Kyle did not submit income tax returns, wage statements, or any other financial documentation. The only evidence presented by Kyle at the hearing was his own testimony. Kyle testified that he was unemployed. Kyle stated that his "last good job" was working as a "roof loader" for the roofing company. That job ended in November 2015 when he was laid off for the winter.
Kyle testified that he had been applying for three jobs per week for the past 2 months, as required by a workforce development program he was participating in. The most recent jobs he applied for were at a supermarket, a home improvement store, and a discount department store. Kyle explained that he had not applied for work at a fast food restaurant or for other food service work, because he was still "trying to get [his] food handler's permit to go that route."
Kyle refused to describe how many and what jobs he had applied for in the approximately 10-month period between the November 2015 layoff and beginning the workforce development program. After repeated evasiveness on Kyle's part, the court instructed him to "calm[ ] down" and "listen carefully" to the State's questions. But Kyle still refused to describe in detail his search for employment, stating, "I'm not gonna sit here and just keep beating around the bush about I'm not trying to get a job or this or that."
Kyle stated that he had done some subcontracting work since being laid off at the roofing company. He did not say how long he had worked as a subcontractor, nor how much he had earned.
Kyle indicated that he had not pursued more subcontracting work because he was disabled. Kyle testified that he had a "third grade reading and writing disability" and "a back problem and a neck problem" related to a fall out of a tree in 2005. Kyle testified that he had applied for disability benefits the day before the hearing.
Kyle testified that he paid $506 per month for rent and utilities. He spent an unknown amount on cigarettes. He also had a third child, a 6-month-old daughter, to support.
Kyle explained that he had not paid child support for Mariah and Renee because he was struggling financially. Kyle elaborated that during the times that he was employed as a subcontractor, it was not "that much money or that much work." What money he had made "[p]robably" went toward his rent and utilities. Beyond Kyle's odd jobs, the mother of Kyle's 6-month-old daughter had been paying their rent, utilities, and other expenses with her Social Security income. That relationship had recently ended, however, and Kyle testified that he had "no money" at the time of the hearing.
Kyle did not clearly indicate whether he had applied for or received unemployment benefits at any point since he was laid off in November 2015. He testified that he was not receiving any assistance at the time of the hearing.
Kyle expressed that the amount of the support order was too high. Kyle indicated that the amount of the support order may have been set too high because he had failed to attend the paternity hearing in December 2015. He claimed he had missed the hearing because he did not receive the paperwork informing him of the court date. Though Kyle claimed he had since brought the amount of the child support order to the court's attention two or three times, there is no evidence that Kyle moved for modification of the order.
Kyle did not deny being aware of the December 2015 child support order as of its effective date. He specifically acknowledged that he was aware of the child support order, though his testimony was imprecise as to when. He said:
Well, I think the first time that I was aware that I was starting to pay child support, the guy who was representing me did not give me the paperwork to where I was supposed to make the payment to the child support, this and that. I don't know. It's my first time going through this stuff. I got reading and writing and disability problems myself. I've just been trying to figure out—it's been set at such a high—such high—like 200-whatever dollars, and I've been telling them that it's been hard for me to afford to pay my own bills and to still be able to afford to pay the child support.
Kyle did not assert that ignorance of the order was the reason for his failure to pay child support.
The court found Kyle in willful contempt of the December 2015 order. In its written contempt order, the court specifically found that during the period applicable to the contempt citation, Kyle had the ability to pay the support ordered. Pursuant to the contempt order, Kyle was committed to 60 days' jail time, to be suspended as long as he paid to the clerk of the court "$230.00 a month on current child support and $100.00 [a month] on arrearage, commencing January 1, 2017." In the event that Kyle complied with this payment schedule for 18 months, he would be purged of contempt. In the event commitment was issued as a result of noncompliance, he would be released and purged of contempt upon payment of $1,000. The court did not set forth an explicit finding that Kyle was at that time able to pay the purge amount. Nor does the record reflect that the court pronounced its order in Kyle's presence.
Kyle timely appeals the contempt order.
Kyle assigns that the district court abused its discretion in (1) finding him in civil contempt; (2) imposing an unreasonable, arbitrary, capricious, and punitive sanction; and (3) setting for the purge plan payment amounts that were impossible to perform.
In a civil contempt proceeding where a party seeks remedial relief for an alleged violation of a court order, an appellate court employs a three-part standard of review in which (1) the trial court's resolution of issues of law is reviewed de novo, (2) the trial court's factual findings are reviewed for clear error, and (3) the trial court's determinations of whether a party is in contempt and of the sanction to be imposed are reviewed for abuse of discretion.2
Though the ability to pay the purge amount is a factual question that we review for clear error, whether the facts result in a due process violation is a question of law.3
Kyle appeals from a contempt order imposed to enforce the prior judgment of paternity and child support.4 The parties agree that the underlying proceedings were instituted and tried as civil contempt. Kyle's attorney asserts on appeal that the district court erred in finding Kyle in contempt because he did not willfully disobey the support order and, further, that the court erred in setting a purge amount that resulted in a punitive rather than coercive sanction. Kyle asserts that for these reasons, the district court's order was unreasonable, arbitrary, and capricious.
We first address whether the court clearly erred in finding that Kyle's violation of the child support order was willful. Civil contempt requires willful disobedience as an essential element.5 "Willful" means the violation was committed intentionally, with knowledge that the...
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