Thomerson v. Thomerson

Decision Date14 May 1986
Docket NumberNo. 15067,15067
Citation387 N.W.2d 509
PartiesDeloris Marie THOMERSON, Plaintiff and Appellant, v. Albert Benson THOMERSON, Defendant and Appellee.
CourtSouth Dakota Supreme Court

Randall R. Hodge of Banks & Johnson, P.C., Rapid City, for plaintiff and appellant.

Paul M. Sedlacek, Rapid City, for defendant and appellee; Robert Moore of Moore & Kandaras, PLC, Rapid City, on brief.

FOSHEIM, Chief Justice.

Deloris Thomerson appeals from a trial court's failure to hold her ex-husband, Albert Thomerson, in contempt and from the trial court's modification of alimony and child support awards. We reverse and remand.

Deloris and Albert Thomerson were married in 1965 and divorced in 1979. One child, Guy, was born in 1969. The divorce decree ordered Albert to pay Deloris $150.00 per month alimony and $150.00 per month child support. In addition, he was directed to structure a $20,000.00 trust fund for Guy. Deloris was awarded a lump sum payment of $20,000.00 and various personal property. Albert was granted sole ownership of a ranch valued at $347,000.00, machinery and personal property worth $45,000.00, and miscellaneous real and personal property amounting to over $6,000.00. The award to Albert was offset with debts of approximately $180,000.00. No appeal was taken from that judgment.

Litigation has continued throughout the years following the divorce including numerous prior contempt proceedings against Albert for failure to pay alimony and child support. Deloris received her last alimony payment in 1981 following execution on a judgment for arrearages.

In early 1985, when Albert was 70 years old and Deloris was 59, Deloris began this contempt proceeding alleging that Albert had not been making monthly alimony and support payments 1 and that over $6,000.00 for alimony and excess $1,000.00 for child support were in arrears. The court issued an order to show cause. Albert responded with a motion for retroactive modification of alimony and abatement of arrearages and cancellation of future maintenance payments. This response was supported by his personal affidavit. At the hearing, no oral testimony was presented and neither party was present. The hearing, however, with counsels' remarks was transcribed. Following the hearing, and with the court's approval, Deloris submitted an affidavit in response to Albert's affidavit.

In May, 1985, the trial court ruled that Deloris had failed to meet her burden of proof on the contempt issue. The court further concluded that: child support obligations were paid and changed conditions since the divorce justified modification of the decree; alimony should be terminated and arrearages abated; and modification of the child support award should be made. The trial court rejected the proposed findings of fact and conclusions of law of both parties and entered its own.

I. Contempt

We first note that the proper procedure for civil contempt was not followed. As the incidence of divorce increases, followed by more legal activity to enforce alimony and child support awards, these procedures gain significance. Since civil contempt can result in incarceration, constitutional safeguards must be observed. Likewise, since the very jurisdiction of the court rests on proper procedure, a detailed review appears appropriate.

Courts of general jurisdiction have inherent power to punish contempt by fine or imprisonment, City of Mount Vernon v. Althen, 72 S.D. 454, 458, 36 N.W.2d 410, 412 (1949), Fritz v. Fritz, 45 S.D. 392, 394, 187 N.W. 719, 720 (1922), or both. Nauman v. Nauman, 320 N.W.2d 519, 521 (S.D.1982); Simmons v. Simmons, 66 S.D. 76, 79, 278 N.W. 537, 538 (1938). Contempt of court is classified as either criminal or civil. See SDCL Sec. 15-20-19 and ch. 23A-38. Criminal or direct contempts are words spoken or acts committed in the presence of the court or during its intermissions which tend to subvert, embarrass, or prevent the administration of justice and may be summarily punished by the presiding judge as he may deem just and necessary. State v. American-News Co., 62 S.D. 456, 459, 253 N.W. 492, 494 (1934); see also Karras v. Gannon, 345 N.W.2d 854 (S.D.1984). Constructive or civil contempts arise not from matters transpiring in court but rather from a person's failure to comply with orders and decrees issued by the court in a civil action for the benefit of an opposing party. American-News Co., 62 S.D. at 459, 253 N.W. at 494. It is not always easy to classify a particular act as belonging either to criminal or civil contempt. Id. It may partake of the characteristics of both. Id. However, the distinction in punishment is clear. In criminal contempt, the order itself is in the nature of punishment. Id. at 460, 253 N.W. at 493. In civil contempt, the punishment is coercive, that is, it compels the person to act in accordance with the court's order. Id.; State v. Knight, 3 S.D. 509, 514, 54 N.W. 412, 413 (1893).

Here, we are concerned only with civil contempt, which is sui generis, that is, partaking of a criminal nature by reason of the authority to convict and punish and yet in a sense civil and remedial. Simmons, 66 S.D. at 79, 278 N.W. at 538. A prosecution for civil contempt, as distinguished from criminal contempt, involves features of a formal trial including the making of a charge based on an affidavit and the giving of notice to the contemner. Fienup v. Rentto, 74 S.D. 329, 332, 52 N.W.2d 486, 488 (1952). A civil contempt proceeding may be brought by an order to show cause, Simmons, 66 S.D. at 79, 278 N.W. at 538, and may properly be entitled within a civil action; it need not be a separate proceeding. Freeman v. City of Huron, 8 S.D. 435, 437, 66 N.W. 928, 928-29 (1896). 2 The affidavit seeking an adjudication of civil contempt is treated as the complaint or information to which the accused, in effect, is requested to plead guilty or not guilty. See, e.g., Simmons, 66 S.D. at 80, 278 N.W. at 538-39. If he denies the allegations, the burden of proving the allegations necessary to sustain the contempt as charged fall upon the person bringing the proceedings. Freeman, 8 S.D. at 437, 66 N.W. at 929.

The affiant must establish four elements for a prima facie case warranting a finding of contempt for failure to pay alimony. These elements are (1) the existence of an order; (2) knowledge of the order; (3) ability to comply with the order; and (4) willful or contumacious disobedience of the order. Rousseau v. Gesinger, 330 N.W.2d 522, 524 (S.D.1983); Myhre v. Myhre, 296 N.W.2d 905, 907 (S.D.1980); Hanisch v. Hanisch, 273 N.W.2d 188, 190 (S.D.1979).

All facts showing the jurisdiction of the court must appear in the affidavit. Simmons, 66 S.D. at 80, 278 N.W. at 539. Unless every material fact constituting the alleged violation is stated in the affidavit, the court has no jurisdiction. In re Solberg, 51 S.D. 246, 248, 213 N.W. 9, 10 (1927). The contents of the affidavit cannot be stated on presumption, intendments, or upon information and belief. Freeman, 8 S.D. at 439, 66 N.W. at 929; State v. Sweetland, 3 S.D. 503, 506-07, 54 N.W. 415, 416 (1893). The affidavit filed by the accused in response is to be treated as an answer and upon the issues so raised, evidence is to be adduced on each side. Simmons, 66 S.D. at 80, 278 N.W. at 539. No reply to the answer is necessary. Otten v. Otten, 245 N.W.2d 506, 508 n. (S.D.1976).

It must be established that a copy of the decree or judgment of the court was personally served on the defendant before he can be convicted of contempt for failure to comply with its requirements. Kruger v. Kruger, 32 S.D. 470, 471, 143 N.W. 368, 369 (1913). If, however, the accused had actual knowledge of the contents of the judgment, such personal service is unnecessary. Freeman, 8 S.D. at 43, 66 N.W. at 929; Knight, 3 S.D. at 517, 54 N.W. at 415. When the court has acquired jurisdiction, an appropriate adjudication can be rendered, including a commitment to jail, even though the committed party in contempt is not personally present. Fritz, 45 S.D. at 394, 187 N.W. at 719.

When the defense is the inability to pay alimony, 3 the burden of proof shifts to the defendant to establish his inability to comply with the order. Jameson v. Jameson, 306 N.W.2d 240, 241 (S.D.1981); Talbert v. Talbert, 290 N.W.2d 862, 863 (S.D.1980); see also Hanks v. Hanks, 334 N.W.2d 856 (S.D.1983). Self serving testimony alone is insufficient and corroboration is necessary to establish a defense that a party cannot pay alimony. Rosseau, 330 N.W.2d at 524. It is error to deny the request of the defendant to submit oral testimony but absent such a request the court can proceed to determine the matter on affidavit. Simmons, 66 S.D. at 79-80, 278 N.W. at 538.

The final adjudication results in a judgment rather than an order. See Krueger, 32 S.D. at 470, 143 N.W. at 369. The judgment must be based upon clear and specific findings of fact as to all material elements. Fienup, 74 S.D. at 333-34, 52 N.W.2d at 48.

Since the punishment for civil contempt could be imprisonment, the accused is entitled to be represented by counsel as a matter of right. 17 Am.Jur.2d Contempt, Sec. 92. In Simmons, 66 S.D. at 79-80, 278 N.W. at 538 we said:

The United States Supreme Court in the case of Cooke v. United States, 267 U.S. 517 [536-37], 45 S.Ct. 390, 395, 69 L.Ed. 767 [1925], said:

"When the contempt is not in open court, however, there is no such right or reason in dispensing with the necessity of charges and the opportunity of the accused to present his defense by witnesses and argument.

* * *

* * *

"Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony ...

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