Hanks v. Hanks

334 N.W.2d 856, 1983 S.D. LEXIS 347

Opinions

HECK, Circuit Judge.

This case is before us a second time.

Footnotes

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* Subsequent to our decision, the appellee obtained an order to show cause why the appellant should not be held in contempt for failure to pay the amount awarded as part of the property settlement, alimony, and child support. The appellant in turn requested a modification of the child custody provisions of the divorce decree. The trial court found the appellant to be in contempt of court for failure to pay. The modification of the child custody was refused. We affirm the decision of the trial court.

Although we have previously ruled that alimony and child support payments ordered by a trial court in a divorce action may be enforced by the court’s contempt power, we have not had occasion to rule on the enforcement of property settlement provisions of the divorce decree by the same method. Our holdings as to alimony and child support are widely accepted in other states. There is mixed authority on the property division issue. Some courts hold that enforcement of property division by contempt power is violative of their constitutional provisions against imprisonment for debt.

Our Constitution, Art. VI, § 15, prohibits imprisonment for debt “arising out of or founded upon a contract.”

SDGL 25-4-44 gives the trial courts the power to make an equitable division of property belonging to the parties in a divorce action. Sometimes this division requires the payment of cash from one party to the other where it is not economical or practical to divide property in kind. This cash obligation is not the consequence of contract or agreement between the parties, but is an obligation created by the court for the division of the property interests of the parties. The trial court must have, and we hold that it does have, the power to punish for willful and contumacious failure to pay money, as well as transfer of property in kind, ordered by the court to accomplish a division of property in a divorce proceeding.

The appellant contends that his conduct in failing to pay was not comtemptuous.

The four elements necessary to be established before a finding of contempt can be made by the court have been frequently recited by this court in previous decisions and as recently as Rousseau v. Gesinger, 330 N.W.2d 522 (S.D.1983). The first two elements were admitted by the appellant. His defense was inability to pay, which he has the burden of establishing. Jameson v. Jameson, 306 N.W.2d 240 (S.D.1981). The evidence before the trial court was clear that he had sufficient income to pay the obligations created by the divorce decree. His showing on inability to pay consisted of his testimony that he could not borrow any money and that he was unable to pay. There was no evidence before the trial court as to the disposition of his income. The trial court was justified in its conclusions that the appellant “has not clearly proven inability to comply with the decree, or that he has complied to the fullest extent of his ability .... ”

As to the non-payment of the alimony, the appellant contends that there was no written order entered by the trial court setting his alimony obligation subsequent to our modification of the award in the original divorce decree. We hold that our modification of the alimony award did not revoke the order originally entered, but only limited the amount to be paid by the appellant. The amount could easily be determined by a simple calculation.

Next, the appellant contends that he should not be required to pay child support for the time that he had custody of the children during certain weeks of the summer. The original decree provided that appellant pay to the appellee a specified amount each month of the year for the support of the children. The decree contained no provision for reducing the amount during the time when the children were living with the appellant. Even though his position may seem just and equitable for a reduction of the payments during the time when the children live with the appellant, his remedy was to seek modification of the child support payments, which he did not do. He had no right to withhold the payments absent an order of the court allowing it.

The appellant, in the same proceeding, sought a change in the custody order to obtain the dominant custody of his children. Our rule for modification of child custody has been substantially unchanged since its inception. We stated the rule in Masek v. Masek, 90 S.D. 1, 6, 237 N.W.2d 432, 434 (1976):

To state the rule we have adopted in change of custody cases, the parent seeking modification of custodial rights has the burden of proving (1) that there has been a substantial and material change of circumstances since the decree of divorce was entered, and (2) that the welfare and best interests of the children require the modification being sought. Either factor standing alone will not justify a change of custody — both must be present. This is a heavy burden, but the courts, the parties and especially the children must be protected from endless and vexatious litigation and the resulting uncertainty flowing therefrom.

The trial court concluded that “[t]here has not been a substantial and material change of circumstances since the decree of divorce was entered sufficient to support a change of custody.” We believe, in this conclusion, that the trial judge misunderstood the rule in Masek. It is clear from the evidence that there was a “substantial and material change of circumstances” since the divorce decree, i.e., the appellee remarried and she and the children moved from South Dakota to Colorado. Since the proof required under the first part of the Masek rule was established, it allowed the court to reconsider the placement of the children. However, the misapplication of the first part of the rule may not necessarily alter the result.

In order for the trial court to make a change of custody, both factors must be proven: (1) a substantial and material change of circumstances, and (2) that the welfare and best interests of the children require a change of custody.

As to the second part of the rule, the trial court concluded that “[t]he welfare and best interests of [the children] do not require modification of the custodial aspects of the divorce decree .... ”

Although the evidence does reflect some areas which may be less than ideal circumstances for the children, we cannot say that the trial court abused its discretion in disallowing the change of custody. The appellant simply did not establish by a preponderance of the evidence that the change was in the best interests and welfare of the children. In this respect we assume that the trial court took into consideration all of the evidence before it in making its decision. It is not essential that the trial court enter a finding of fact on every fact presented, but only those findings of fact essential to support its conclusions.

The appellee has requested allowance by this court of attorney fees for her defense of this appeal. Since we hold that there was a change of circumstances since the divorce decree which would allow the trial court to consider custody of the children, and to have court review of that decision, the request of appellee is disallowed.

The judgment of the trial court is affirmed.

WOLLMAN, DUNN and MORGAN, JJ., concur. HENDERSON, J., concurs in part and dissents in part. HECK, Circuit Judge, sitting for FOSH-EIM, C.J., disqualified.

Hanks v. Hanks, 296 N.W.2d 523 (S.D. 1980).