State, Fall River County ex rel. Dryden v. Dryden, 15174

• Decision Date: 24 October 1986
• Docket Number: No. 15174,15174
• Citation: 409 N.W.2d 648
• Parties: STATE of South Dakota, FALL RIVER COUNTY, ex rel. Constance M. DRYDEN, Plaintiff and Appellee, v. Thomas D. DRYDEN, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 648

409 N.W.2d 648

STATE of South Dakota, FALL RIVER COUNTY, ex rel. Constance

M. DRYDEN, Plaintiff and Appellee, v. Thomas D. DRYDEN, Defendant and Appellant.

No. 15174.

Supreme Court of South Dakota.

Considered on Briefs Oct. 24, 1986.

Decided July 15, 1987.

Linda Lea M. Viken of Finch & Viken, Rapid City, for plaintiff and appellee; Kenneth R. Dewell, Sp. Asst. Atty. Gen., Hot Springs, on brief.

John H. Mairose of Fousek, Lefholz & Mairose, Rapid City, for defendant and appellant.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

Plaintiffs-appellees Constance Stock (Constance) and the State of South Dakota (State) filed a Motion for Order to Show Cause against Constance's former husband, defendant-appellant Thomas Dryden (Thomas), praying the circuit court (1) find Thomas in contempt for his failure to make court-ordered child support payments; and (2) modify the existing Decree of Divorce. The circuit court complied with both requests. Thomas appeals asserting that the court erred when it

(1) held him in contempt for failure to abide by a child support order when he had fully paid his child support debts prior to trial;

(2) required that he execute a wage assignment and pay Constance's attorney's fees ($477) in order to purge his contempt; and

(3) reallocated an Internal Revenue Service (IRS) exemption for one of his daughters from him to Constance.

Due to the natural inclination of the subject matter, Issues one and two are treated simultaneously. Issue three is addressed separately. We affirm in part and reverse in part.

FACTS

Thomas and Constance were married on August 23, 1970. The marriage produced two children; Christine, born December 29, 1971, and Monica, born July 15, 1974. Constance filed for divorce in August 1983. A Stipulation and Agreement was signed on August 20, 1983. Regarding the children, Thomas and Constance agreed as follows:

(1) Constance shall have custody;

(2) Thomas shall pay $150 a month in child support for each child commencing November 1, 1983 and that subsequent payments are due on or before the first day of each month;

(3) Thomas need not pay child support when the girls visit him for one month during the summer;

(4) Thomas be entitled to claim both children as dependents for tax purposes;

(5) Thomas shall have the right set out in (4) for only so long as his child support payments are current; and

(6) Thomas shall maintain health insurance coverage on the girls.

On October 21, 1983, Constance was granted a divorce. All terms and conditions of above Stipulation and Agreement were expressly included in the Divorce Decree.

Thomas, however, did not make child support payments as he had promised. Payments were often late or nonexistent. In January 1984, Constance applied for Aid to Dependent Children (ADC) for Christine and Monica. Consequently, support payment rights were assigned, for a time, to the State of South Dakota.

Later in 1984, two Orders to Show Cause were entered. Both orders addressed Thomas' failure to pay child support. The second Order resulted in a Stipulation between Thomas and the State which was approved by the circuit court on January 5, 1985. Said Order:

(1) lowered Thomas' monthly support payments to $200;

(2) determined that Thomas was $475 in arrears ($225 to Constance and $250 to State), which would be satisfied by an additional monthly payment of $50 ($25 to Constance and $25 to State);

(3) reinstated the original $300 per month payment if Thomas' and his current spouse's net income reaches or exceeds $2,000 per month (proof of wages to be supplied monthly); and

(4) required that a six-month review be held upon request of any party.

Constance did not sign the Stipulation. But it does appear from the record that she was involved in negotiations and did at least initially agree upon the content of the Stipulation.

On August 23, 1985, a third Order to Show Cause was entered addressing Thomas' failure to make child support payments. Thomas was delinquent in the amount of $525 to Constance and $250 to State. On September 13, 1985, a hearing was held and Thomas was ordered to show cause why:

(1) he should not be held in contempt of court and jailed for refusing to comply with previous court orders;

(2) child support payments should not be increased;

(3) he should not be required to pay one-half of the medical, dental, optometric and related costs for the children not covered by insurance;

(4) the Divorce Decree should not be modified to provide that Constance receive the IRS exemptions for the children;

(5) he should not be required to pay Constance's attorney's fees and costs; and

(6) he should not be ordered to execute a wage assignment.

Thomas responded by requesting an Order Modifying the Decree of Divorce. He specifically prayed that his child support obligation be reduced to $150 per month, citing a decrease in hours worked at his seasonal job as reason for this request. Thomas noted that his net pay as of August 24, 1985 was $9,033.80, but felt he might be dismissed from his job by Christmas. Thomas also pointed out that he had paid in full both Constance ($525 on September 5, 1985) and State ($250 on September 6, 1985) soon after he received the August 1985 Order to Show Cause.

Upon conclusion of the September 13 hearing, the following rulings were made. First, Thomas was found in contempt and sentenced to serve 30 days in the county jail for willfully disobeying the court's January 6, 1985 Order. This contempt could be purged upon Thomas' execution of a wage assignment and payment of Constance's attorney's fees. Second, the original Divorce Decree was modified to provide Constance with one of two IRS exemptions. Thomas' request for modification of child support amount was refused. Constance's request for one-half medical and other related expenses was refused, as was her request for increased child support.

Thomas executed the wage assignment on September 28, 1985. Constance's attorney's fees ($477) were to be paid within 120 days of the September 13, 1985 hearing. Thomas was expecting inheritance estimated at $6,000, which would enable him to pay his former wife's attorney's fees. Constance's attorney's fees were never paid. Thomas appeals.

DECISION

I. AND II.

This case involves a civil contempt proceeding pertaining to child support. See Thomerson v. Thomerson, 387 N.W.2d 509 (S.D.1986); Simmons v. Simmons, 66 S.D. 76, 278 N.W. 537 (1938). Thomas was found to be in willful disobedience of a circuit court order of January 6, 1985, for failure to pay child support. We reverse the Judgment and Order of Contempt entered on the thirteenth day of September, 1985, as at the time of the hearing on the Order to Show Cause for Contempt all arrearages had been paid to the State of South Dakota and to Constance. See Cozik v. Cozik, 279 Minn. 91, 98-99, 155 N.W.2d 471, 476 (1968) (where the Minnesota Supreme Court stated "[u]nless there has been an overt act which can be called contempt in itself, when the amounts in default are paid there is no longer any ground for a finding of contempt because if there was one it has been purged by the payment."). Accord Nystrom v. District Court, 244 Iowa 735, 58 N.W.2d 40 (1953). See also In re Marriage of Florke, 270 N.W.2d 643, 646 (Iowa 1978); McDonald v. McDonald, 170 N.W.2d 246, 247-48 (Iowa 1969) (both cases essentially noting that compliance with a court's order prior to contempt proceedings is regarded as sufficient purging). We have held when " 'the contempt consists in the refusal of a party to do something which he is ordered to do for the benefit or advantage of the opposite party, the process is civil, and he stands committed till he complies with the order. The order in such a case is not in the nature of a punishment, but is coercive, to compel him to act in accordance with the order of the court.' " Karras v. Gannon, 345 N.W.2d 854, 856 (S.D.1984) (quoting State v. Knight, 3 S.D. 509, 514, 54 N.W. 412, 413 (1893)). See State v. Bullis, 315 N.W.2d 485, 487 (S.D.1982). D. Dobbs, Handbook on the Law of Remedies, Sec. 2.9, at 97 (1973). Here, there was nothing to coerce because Thomas had already submitted his child support payments. We reason that, at the time of the contempt hearing, there was simply nothing further that a contempt order could compel appellant to do; therefore, reversal of the circuit court's finding of contempt is mandated. ¹ Accordingly, we also reverse that part of the circuit court's decision relating to the wage assignment.

Constance argues that Thomas has waived his right to appeal the contempt order because of his execution of a wage assignment. She relies on Lanphear v. Lanphear, 303 N.W.2d 576 (S.D.1981), and Kerr v. Kerr, 74 S.D. 454, 54 N.W.2d 357 (1952). However, the circumstances in the present case appear to demand a different result than that one reached in Kerr and Lanphear. In those cases, one party lost the right to appeal a court-ordered payment to the second party when the first party paid those monies to the second party during the pendency of appeal. In our case, Thomas had to execute the wage assignment or go to jail on October 4, 1985. He was unable to appeal as the trial court's Findings of Fact and Conclusions of Law were not entered until October 18, 1985. Therefore, Thomas' September 28, 1985 wage assignment did not constitute a waiver of his right to contest contempt upon appeal.

Regarding attorney's fees, "[w]e have repeatedly held that this allowance rests in the sound discretion of trial court and will not be interfered with by this court, unless it appears there was err [sic] in the exercise thereof." Jones v. Jones, 334 N.W.2d 492, 494 (S.D.1983) (citing Pochop v. Pochop, 89 S.D. 466, 233 N.W.2d 806 (1975); Foss v. Foss, 83 S.D. 574, 163 N.W.2d 354 (1968); Kuehn v. Kuehn, 74 S.D. 521, 55 N.W.2d 70 (1952); Baron v. Baron, 71 S.D. 641, 28 N.W.2d 836 (1947)). Even though payment of Constance's attorney's fees by...