Strecker v. Wilkinson
| Decision Date | 23 July 1976 |
| Docket Number | No. 48003,48003 |
| Parties | Shirley E. STRECKER (formerly Shirley Wilkinson), Appellant, v. William L. WILKINSON, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. An order refusing to issue a citation for contempt which also contains a provision doing away with child support is a final and appealable order.
2. Judgment in a contempt proceeding rests within the sound discretion of the trier of facts and will not be disturbed on appellate review absent a clear showing of abuse of discretion.
3. A proper motion, notice to the adverse party and an opportunity to be heard are prerequisites to a modification of a child support order. (K.S.A.1975 Supp. 60-1610(a).)
4. Installments for the support of a child became final judgments as of the dates due and may be enforced as other judgments unless barred by the statute of limitations.
5. Generally speaking, past-due child support payments are not barred by the mother's laches during the child's minority.
J. Eugene Balloun, of Payne & Jones, Chartered, Olathe, argued the cause and Ronald L. Bodinson, Olathe, of the same firm, was with him on the brief for appellant.
James W. Dahl, Kansas City, argued the cause and was on the brief for appellee.
Thiis controversy is the aftermath of a divorce action. The appeal is from the order of the district court denying a contempt citation for the alleged failure to pay child support.
Mrs. Strecker, the appellant and the former Shirley Wilkinson, was granted a divorce from the appellee, William L. Wilkinson, on January 9, 1960. She was awarded the care, custody and control of Christina Marie Wilkinson, the minor child of the parties, subject to reasonable visitation rights granted the appellee. The decree provided the appellee was to pay the sum of $25 per week for the support of his child. Subsequently the parties filed several contempt proceedings against each other. The appellant claimed child support payments were not forthcoming, while the appellee asserted he had been denied his visitation rights under the decree. In an effort to resolve the protracted conflict, the court asserted its continuing jurisdiction and modified the divorce decree on March 28, 1962. The court entered an order which reduced the amount of child support payments to $10 per week and terminated appellee's visitation rights.
On May 31, 1967, the appellee filed a motion for restoration of his visitation rights and on July 5, 1967, the court entered an order reinstating appellee's right to visit his child. The court found the appellant had been notified of appellee's motion, but she did not appear personally or by counsel to contest the proposed visitation rights. The order noted that the court retained jurisdiction to extinguish the appellee's obligation to provide child support under the decree if the appellant failed to abide by the terms of the visitation order.
Later, and on July 19, 1967, the appellee filed a second motion pertaining to his visitation rights. The appellee requested specific times for visitation with his child. The motion certified that appellant's attorney had been notified of the motion. The court granted the appellee's motion on August 18, 1967. Appellant again entered no appearance. Subsequently appellee traveled to Texas, where appellant and her child were then residing, and sought to assert his visitation rights. To this end the appellee obtained an order dated June 5, 1968, from the Harris County, Texas Domestic Relations Court which restated the visitation rights ordered by the Kansas district court. The appellee's attempt to visit his child was apparently thwarted by appellant. On June 6, 1968, the appellee wrote the Kansas district court asserting his former wife had denied his visitation rights and had fled to Lomita, California, to prevent him from contacting his daughter. Appellee requested the court to terminate his child support obligation.
The district court in a letter dated June 19, 1968, advised appellee that an order terminating child support had been entered effective as of that date. No notice of the order was provided the appellant at any time before or after its entry.
Some seven years later, on February 28, 1975, the appellant filed a motion in the district court for citation in contempt against appellee for his failure to pay child support pursuant to the order of March 28, 1961. On March 7, 1975, a hearing was held on appellant's motion and the court entered an order which read, in pertinent part, as follows:
'Thereupon, it is shown by the Plaintiff that she did not receive notice, either before or after the letter of June 10, 1968, directed to the Defendant, concerning the termination of support.
'Thereupon, the Court finds and orders that in view of the foregoing, the claim for the enforcement of past-due support should not be granted, but that the Plaintiff may file a motion requesting that the order for child support be reinstated in a reasonable amount, to be determined by the Court after hearing evidence pertaining to current need for child support and current ability of the Defendant to provide support.
'BY THE COURT IT IS SO ORDERED.'
It is from this order that the appeal was taken.
Before reaching the merits of the issues on appeal, we should first consider the appellee's contention that an order refusing to issue a citation for contempt is not an appealable order. On this point the appellee's brief states:
'This appeal is from an order refusing to issue a Citation for Contempt. The only issue before the Court involves a reasonableness of that refusal. In Koons v. Koons, 372 P.2d 62, 190 Kan. (62) 65, at page 67, the Court held:
"An order overruling or sustaining a motion for citation in contempt to enforce payment of child support ordered to be paid in a divorce decree is not, standing alone, a final order as defined by G.S.1949, 60-3303, and therefore not appealable . . .'
'The provisions of G.S.1949, 60-3303, were carried over in K.S.A. 60-2102.'
The balance of the paragraph in Koons from which the above excerpt was taken reads as follows:
We do not agree with the appellee's assertion that the only issue before this court involves the reasonableness of the refusal to issue a citation for contempt. The court not only denied the citation, but it made final its decision in its June 10, 1968, letter with respect to termination of the child's support. This matter will be more fully presented as we consider the merits.
We have no difficulty in determining the district court did not err in refusing to grant a contempt citation. We held in Haynes v. Haynes, 168 Kan. 219, Syl. Para. 2, 212 P.2d 312:
'Judgments in contempt proceedings rest within the sound discretion of the trier of the facts and will not be disturbed on appellate review unless abuse of discretion clearly appears from the record.'
Having informed the appellee by letter that, rightly or wrongly, he no longer need pay child support, the district court was hardly in a position to cite him for contempt for not paying.
The cancellation of child support without notice and opportunity to be heard presents a more serious problem. The appellee wrote a letter to the district court stating his former wife had denied his visitation rights and fled to Lomita, California, to prevent him from contacting his daughter. He requested the court to terminate his child support obligations. The court, without notice to the appellant and without an opportunity for her to be heard, advised the appellee by letter that an order terminating child support had been entered as of that day.
As indicated, some seven years later, the appellant filed her motion for citation in contempt. The district court found that the claim for enforcement of past-due support should not be granted, but that a motion for reinstatement of child support would be reconsidered.
This court first directs attention to the attempt to cancel child support based on correspondence between the judge and the appellee.
The pertinent part of the statute (K.S.A1975 Supp. 60-1610(a)) providing for child support reads:
'The court shall make provisions for the custody, support and education of the minor children, and may modify or change any order in connection therewith at any time, and shall always have jurisdiction to make any such order to advance the welfare of a minor child if (i) the child is physically present in the county, or (ii) domicile of the child is in the state, or (iii) the court has previously exercised jurisdiction to determine the custody or care of a child who was at such time domiciled in the state . . .'
It will be noted that the foregoing statute imposes no requirement of notice and opportunity for a hearing as a prerequisite to modification of orders for support, custody or education of children in divorce cases. However, it appears to be a very general rule that a proper motion must be filed, notice to the adverse party given and the adverse party afforded an opportunity to be heard. Due process requires reasonable notice even...
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