Steele v. Steele
| Citation | 142 Vt. 112,453 A.2d 400 |
| Decision Date | 28 October 1982 |
| Docket Number | No. 422-81,422-81 |
| Parties | Suzanne STEELE v. Thomas STEELE, Sr. |
| Court | United States State Supreme Court of Vermont |
Theodore Corsones and Stephen Cosgrove of Corsones & Hansen, Rutland, for plaintiff-appellee.
Robert S. Burke of Richard E. Davis Associates, Inc., Barre, for defendant-appellant.
Before BARNEY, C.J., and BILLINGS, HILL, UNDERWOOD and PECK, JJ.
The defendant appeals an order of the Rutland Superior Court finding him in wilful contempt for his failure to comply with the provisions of a divorce decree. The original divorce decree, issued on April 6 1981, and based upon a stipulation of the parties, required the defendant "to pay and to hold the plaintiff harmless in connection with" a variety of obligations. Among them was a $7,000 debt to the Proctor Trust Company. As a consequence of the defendant's failure to pay this debt, foreclosure proceedings were initiated by the bank against plaintiff's home.
In the proceedings below, defendant sought to show that he was financially unable to pay the $7,000 debt and thus was not in contempt of the 1981 decree. He testified that he had made attempts to arrange payment for the debt but was thwarted by Proctor Trust Company's refusal to accept anything but full payment of the $7,000. He further stated that he had a taxable income of $9,000 a year, could afford no more than $137 monthly on the debt, and had no available cash, stock, or other property which could be liquidated in order to satisfy the debt. Despite this testimony, the superior court adjudged the defendant to be in wilful contempt of the divorce decree. For the following reasons we vacate the court's order.
To declare a defendant in contempt, where the question of his financial ability to comply with a court order is raised and argued, as it was here, the findings of the court must establish more than mere noncompliance with the order. Rather, the court must find from the evidence "that [the] defendant not only refused to pay but also that he was under a present duty to pay and had the ability to make the ordered payments." Spabile v. Hunt, 134 Vt. 332, 335, 360 A.2d 51, 53 (1976) (quoting Marshall v. Marshall, 35 Colo.App. 442, 536 P.2d 845, 848 (1975)). See also Condosta v. Condosta, 134 Vt. 381, 383, 359 A.2d 658, 659 (1976).
In the instant case, the findings which bear on the defendant's present financial circumstances establish only the following:
Finding No. 3. At the time of the Court's Final Order [filed April 8, 1981] the defendant was employed in the same manner, and making the same wages, as he is at the time of the hearing. Since April 8, 1981 to the present time, there has been no change of circumstances regarding the defendant's financial conditions.
Finding No. 7. The defendant, although financially able, has failed to comply with the Court's Order dated April 8, 1981 in that he has failed to pay the Proctor Trust Company obligation as set forth in paragraph 8 of said Order.
These findings are clearly deficient. Finding No. 7 is nothing more than a conclusion of law. Although we will not interfere with a lower court's...
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...financial inability, the court must find a present ability to pay before the defendant may be found in contempt. Steele v. Steele, 142 Vt. 112, 114, 453 A.2d 400, 401 (1982). Ordinarily, use of the contempt power is subject to review only for an abuse of discretion. Brown v. Brown, 140 Vt. ......
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