Marriage of Dennis

344 N.W.2d 128, 117 Wis. 2d 249, 1984 Wisc. LEXIS 2300

• Court: Wisconsin Supreme Court
• Decided: February 28, 1984
• Docket: 81-2033
• Status: Published

Opinions

STEINMETZ, J.

The issue in this case is whether the circuit court may in enforcing a child support order require this divorced father to make a search for other employment to increase or to add to his limited income. An additional issue is whether the defendant received proper notice and a hearing under the provisions of secs. 767.305 and 785.03(1) (a), Stats.,² to allow a finding of civil contempt.

On September 19, 1979, the matter came before the circuit court of Barron county, the Honorable James C. Eaton, on a petition for divorce filed by Beverlee Dennis. Three minor children were born of this marriage between the defendant, David Dennis, and Beverlee Dennis. The youngest was born in 1975 and the oldest in 1972.

The parties appeared before a family court commissioner for Barron county who ordered Dennis to pay $35 weekly as family maintenance commencing October 1, 1979.

On February 25, 1980, Dennis appeared before the circuit court at an order to show cause hearing for contempt brought by the Barron County Family Support Agency. As a result of that hearing, the court reduced his support obligation to $15 per month, which was $5 per child per month, and ordered payment of $5 monthly toward arrearages of $560.

Pursuant to the final hearing of March 24, 1981, with respect to child support, the court ordered:

“That the court agrees with Mr. Thexton [Arthur Thexton, Barron county assistant district attorney] that the respondent should pay $300.00 per month for child support. It appears that respondent does not have the present ability to do so. The respondent appears in good health, has ability and a good mind. That he should look for additional or alternative work because it appears that he has never made over $3,500.00 per year in his past endeavors. That respondent is ordered to use his good faith efforts to apply for other work at least in ten places per month, and be in a position to show such compliance and efforts made; that he is to promptly report to the Barron County Department of Social Services of any additional or alternative employment obtained.

“That the court reserves jurisdiction over the issue of support for the children, and the matter shall be reviewed on July 20th, 1981 at 9:00 a.m., at which time the respondent is ordered to appear before the court.

The order regarding the March 24, 1981, hearing was signed on April 27, 1981.

On March 30, 1981, six days after the final hearing, the attorney for Dennis filed a motion for reconsideration with the court asking the court to reconsider the “seek-work” order on the grounds that such an order constituted an abuse of discretion.

At the hearing on the motion for reconsideration held on June 29, 1981, the court again took notice of the fact that Dennis had never earned over $3,500 per year and then stated that this income was insufficient to permit reimbursement of the AFDC payments for his family. The court reasoned that Dennis’s earning history strongly suggested that in the future he would not earn enough to meet the AFDC payments. Additionally, the court noted: “I made it a condition of the judgment that he [Mr. Dennis] in essence get a job or at least apply at ten separate businesses per month for work.”

On July 20, 1981, Dennis again appeared in court pursuant to the court’s order in the judgment to return to court on that date. At this appearance, Dennis introduced into evidence a list of 30 separate employers he had contacted regarding employment. He testified that he had called each of the 30 employers, inquiring as to whether they were accepting employment applications. He stated that in many cases, the employers were not taking applications and so he did not drive to those places. No further breakdown appears in the record of actual applications made.

The court renewed its order at the July 20, 1981, hearing to seek information regarding alternative or additional employment. This renewed order again required Dennis to apply for work with ten separate employers per month, and, in addition, on the record, the judge imposed another obligation. The additional obligation was for Dennis to apply to both Polk County and Barron County Job Services, and to follow all leads suggested by such Job Services. The court ordered Dennis to appear again before the court on September 14, 1981, and at that time then to demonstrate compliance with the continuing ¡seek-work order.

Dennis appeared on September 14, 1981, pursuant to the court’s order; however, time was limited for the taking of testimony, and consequently, the court ordered Dennis to appear before the court on October 22, 1981, and then to show compliance with the seek-work orders of the court.

On October 22, 1981,³ Dennis appeared before the court and at that hearing testified that he had not kept a list of employers to whom he had submitted applications. However, he stated he had talked to several people in an effort to seek work and named three specific persons and that he had talked to “quite a few people” with no success. He stated he had not been to either county Job Service, but had watched the “help wanted” section of the newspaper.

At the October 22, 1981, hearing, Dennis testified that he had been in the car repair business off and on for 20 years, although steadily for ten years, but had operated his present automobile garage business at its present location for only about a year. His business gross receipts averaged $500 to $700 monthly with his take-home pay at about $300 monthly. His personal monthly expenses included $200 for food, part of which went to feed his three children who spent -some weekends with him. As part of the property division in the divorce, Dennis mortgaged his trailerhouse for half its value, and thereby paid his wife $2,000. His monthly payment toward that mortgage was $105. His monthly gasoline expenses for his 1973 Ford pickup truck were $160 which included driving to and from work and driving to auto parts suppliers to obtain parts for his work. He deducted his gasoline expenses from his gross receipts. His other monthly business expenses were telephone charges of $15 to $20, gas and oxygen charges for welding purposes of $40 to $50, electricity charges of $20 to $25, and rental of the building for which he did mechanical work for the landlord as payment.

Dennis testified that because of his limited income and monthly expenses, he could not afford to comply with the court’s order that he apply for ten different jobs per month. Nor could he afford to drive weekly to both Polk and Barron County Job Services and to follow up leads those services might suggest. At the time of the hearing, he had nothing in his checking account and did not have any savings. At that time he still owed nearly the entire $2,000 sum borrowed from the bank in order to provide his wife with the property settlement.

Dennis indicated he worked six days per week and worked between 8:00 a.m. and 6:00 p.m. He testified he never passed up nor avoided any work unless it was unlikely that he would be paid for -his services. There was no direct evidence at any hearing that Dennis intentionally shirked or avoided work. Mrs. Dennis testified that he had always been a hard and steady worker but he never made a net of over $3,500 per year.

At the close of the October 22, 1981, hearing, the court found its order to seek-work within the court’s authority and found Dennis in willful contempt of court. Dennis was sentenced to 60 days in the Barron county jail under the work release program and was allowed to purge the contempt by payment of $800 to the Barron county clerk of court. The court found him in contempt on two bases:

(1) For failing to make application for work as ordered, and

(2) For failing to make child support payments of $15 per month or $5 per month on the arrears as ordered.

The court of appeals in a published opinion, 110 Wis. 2d 442, 329 N.W.2d 272, affirmed the trial court’s holding that the court had the inherent power to order Dennis to look for other work. The court of appeals reviewed the record and held Dennis’s testimony incredible which led that court to the “inescapable conclusion” that Dennis had undisclosed income. The trial court had not made such a finding. The court of appeals found the holding of contempt sustained by the evidence and that the purge ordered by the trial court was within Dennis’s ability to meet by borrowing on his remaining equity in the lot and mobile home.

The trial court’s findings of fact and conclusions of law and order were later incorporated into a Barron county “form order”⁴ dated July 22, 1981, which imposed the additional obligation that the divorced party shall, “Not ref us [e] any job which he is physically able to do, even if the job is not in his chosen trade or occupation, or is not full-time, or pays less than the pay he is used to, or is temporary.” This form order provision is not in issue in this case, since Dennis was never ordered to take a specific job, but only to seek work and, therefore, we will not discuss it. What is before this court is the order of the trial court which required the defendant to “seek-work” other than or in addition to his present business and whether the defendant had proper notice and hearing before being found in willful contempt for his failure to comply with the miniscule support order. The defendant also contests the trial court’s authority to retain jurisdiction over him for over seven months after the final divorce hearing for the purpose of enforcing the “seek-work” order.

The trial court did not order the defendant to take another or different job, but only to seek other work. The rule of Balaam v. Balaam, 52 Wis. 2d 20, 187 N.W. 2d 867 (1971). therefore is not controlling. In Balaam, we held:

“A divorced husband should be allowed a fair choice of a means of livelihood and to pursue what he honestly feels are his best opportunities even though he might for the present, at least, be working for a lesser financial return. This rule is, of course, subject to reasonableness commensurate with his obligations to his children and his former wife.” Id. at 28.

The Balaam rule is not an absolute prohibition against a trial court requiring a divorced supporting spouse to consider a change in livelihood, especially where as here Dennis’s income as a mechanic has never exceeded $3,500 per year in the 20 years he has been practicing it, and it has not increased since he has become a garage operator. Not present in Balaam was the supporting father’s claimed inability to pay $5 per month per child and $5 per month toward arrearage pursuant to the trial court’s order as in this case. If ever there was a miniscule support order recognizing the party’s lack of present earnings, this is it. It shows great respect and restraint by the trial judge for the present income limitations of the defendant and in no way reflects that the trial court was insisting that the defendant repay the AFDC payments his family was receiving.

Edwards v. Edwards, 97 Wis. 2d 111, 113, 293 N.W.2d 160 (1980), dealt with the issue of consideration of the divorced father’s potential earning capacity rather than his actual earnings at the time of the divorce hearing. In analyzing Balaam., the Edwards court stated:

“We held in Balaam that the trial court’s consideration of the husband’s earning capacity, rather than his actual earnings, was improper because there was no finding— nor even a basis for a possible finding — that the husband was not ‘fairly or diligently working at the occupation which he [was] best suited for, nor that he [was] willfully accepting employment and resultant lower compensation for the purpose of reducing his ability to pay alimony and support money.’ ” Id. at 119.

However, until the trial court requires the defendant to “seek work,” which means alternative or additional employment, there can be no accurate and informed finding as to the defendant’s ability to earn and what his worth is economically. Until that is known, the court has no way of testing the person’s economic worth, but has only the fact of how the person has been and is earning a living. It is to the defendant’s benefit to learn his own value, and, in addition, perhaps to be better able to meet his financial responsibilities to his children and therefore comply with the court’s order. The defendant should be interested in supporting his children the best he can and not be satisfied with society supporting them minimally on AFDC. He was not ordered to earn enough to repay AFDC but rather to seek work to investigate whether he is complacent by continuing in financially non-productive work just so he can feed, house and clothe himself.

Until the defendant and the judge know what other work and income is available, there is no way the judge can determine, except by suspicion, that the defendant can do no better and there is no way, except by way of inference, to determine that the defendant is satisfied with his own lot in life and is willing to allow society to support his children. To obtain definite and meaningful information, the order of the trial court is reasonable and must be complied with by the defendant. Telephone calls at random to possible employers do not appear to be a sincere nor effective means of seeking work information. The defendant in this case has not been ordered to abandon his occupation, as was the supporting father in Edwards. Dennis was not at that point. He was ordered to seek work and report to the court. The trial court read Edwards correctly, since in Edwards we held: “While a $3,200 a year income is obviously low, no attempt was made to ascertain whether better barbering jobs were available to Robert Edwards and, if so, how much he could be expected to earn in such a job.” Id. at 120. The Edwards court thereby informed trial courts to have the supportive parent seek other work to learn whether his lot was improvable. The Edwards case impressed the need to examine the equities of each case in regard to income and potential income and that is what this trial court did by its “seek-work” order.

The “seek-work” order was not an abuse of discretion. It has been previously held in Schroeder v. Schroeder, 100 Wis. 2d 625, 631-32, 302 N.W.2d 475 (1981) that:

“Judges presiding in actions affecting marriage have no less power than judges presiding in other actions. It is clear that support payment, division of estate and maintenance orders issued by a court affect the rights and remedies of a party in an action and the judge is authorized and has the duty to assure those rights and remedies will not be impaired, impeded, defeated or prejudiced.”

Sec. 767.01, Stats.,⁵ declares Wisconsin courts have authority to do all acts and things necessary and proper in family actions to carry their orders and judgments into execution. We have held that courts, in addition to statutory authority to carry their orders and judgments into execution, have the inherent power to do so. In Interest of D.L.D., 110 Wis. 2d 168, 180, 327 N.W.2d 682 (1983), we held: “Where a court is granted jurisdiction over subject matters, it is implicit in that grant of jurisdiction that a court can use the contempt power to effectively carry out the functions ordered by the legislature.” See also State v. Braunsdorf, 98 Wis. 2d 569, 297 N.W. 2d 808 (1980). In our organized society, it is necessary that courts be able to carry out their orders. The propriety of those orders can be tested on appeal. In this case, the trial court needed to know the defendant’s potential for earnings and gave the defendant every doubt by setting the support order according to his present earnings at a de minimis amount.

The trial court was within its authority to continue the case as it did to give the defendant a fair opportunity to comply with the order to seek work and to demonstrate payments consistent with the minimal support order. By continuing the case, the court never lost jurisdiction to require compliance with its orders.

This court can understand the frustrations of the trial court, the district attorney and the family support agency in their attempts to get Dennis to meet and carry out his responsibilities to comply with the court’s orders. However, there is nothing in this record to show that statutory mandates or due process requirements with respect to notice and hearing were met before Dennis was found in contempt and sent to jail.

At the hearing held on October 22, 1981, when Dennis was held in contempt of court, the district attorney for the first time asked that Dennis be found in contempt and jailed for his failure to comply with the court’s orders. On January 25, 1980, an order to show cause was issued as to why the defendant should not be held in contempt ; however, that order to show cause was dismissed with prejudice. There was also a paragraph in the divorce judgment dated April 27, 1981, which stated: “Disobedience of the provisions of this Judgment with respect to payment of . . . child support ... is punishable under chapter 785 Stats., by commitment to the County Jail . . . until such judgment is complied with . . . .” This was a general notice to both parties that the court has authority to make sure its orders are carried out.

Before a party can be held in contempt for failure to provide court ordered support, sec. 767.305, Stats., requires that the party be given notice and a hearing and “the court may on its own initiative, and shall on the application of the receiving party, issue an order requiring the payer to show cause . . . why he or she should not be punished for such misconduct as provided in ch. 785.” (Emphasis added.) Neither that statutory provision nor sec. 785.03, governing remedial sanction, when read together require a formal written notice or order to show cause for the court on its own initiative to schedule a contempt hearing, as long as it is done on the record in the defendant’s presence. If the trial judge in this case had given notice orally from the bench on the record at the court hearings preceding October 22, 1981, that on the October 22 date the court would be considering the defendant’s compliance with the court’s orders to seek work and to comply with support payments with contempt as a potential alternative if noncompliance, that would have been notice and would have satisfied the need of due process and the statutory requirement. There is nothing in this record to show any formal notice of a contempt hearing being served on the defendant, nor any order of the judge that such hearing would be conducted. The statutory requirements and due process require that the defendant be aware of what he must answer to so that he can be prepared to offer proof and explanation showing his good faith efforts to comply with the court’s orders.

In O’Connor v. O’Connor, 48 Wis. 2d 535, 543, 180 N.W.2d 735 (1970), we held: “Due process requires at least a notice and a hearing in the contempt process, whether the proceeding is under statutory authority or is an exercise of the inherent power of the court to enforce its order by an in personam remedy.”

This record reveals that Dennis was never put on notice that the October 22 hearing was for the purpose of determining whether he was in contempt for either failure to seek work or failure to provide support.

The case is sent back to the trial court to conduct a contempt hearing to determine whether the defendant has complied with the court’s orders to seek work and make the support payments or if he has failed to comply after good faith efforts. The defendant, with notice as to the purpose of the hearing, may present evidence and after proof is received, the trial court must determine whether the defendant should be held in contempt for contumacious disregard of the court’s orders or whether the defendant has substantially complied with them.

By the Court. — The decision of the court of appeals is reversed and the cause remanded for further proceedings consistent with this opinion.

2 Secs. 767.305 and 785.03(1) (a), Stats., provide as follows:

“767.305 Enforcement; contempt proceedings. In all cases where a party has incurred a financial obligation under s. 767.23, 767.25, 767.255, 767.26, 767.261 or 767.262 and has failed within a reasonable time or as ordered by the court to satisfy such obligation, and where the wage assignment proceeding under s. 767.265 is inapplicable, impractical or unfeasible, the court may-on its own initiative, and shall on the application of the receiving party, issue an order requiring the payer to show cause at some reasonable time therein specified why he or she should not be punished for such misconduct as provided in ch. 785.”

“785.03 Procedure. (1) Nonsummary procedure, (a) Remedial sanction. A person aggrieved by a contempt of court may seek imposition of a remedial sanction for the contempt by filing a motion for that purpose in the proceeding to which the contempt is related. The court, after notice and hearing, may impose a . remedial sanction authorized by this chapter.”

3 The transcript of that hearing is dated October 23, 1981.

4 The relevant portions of the order are as follows:

“3. EMPLOYMENT: David Ira Dennis shall actively and diligently seek work, including but not limited to:

“(a) Going to Job Service once a week and following up on all leads.

“(b) Applying for work at 10 new places each month for jobs which he can perform.

“(c) Keeping a list of places and dates of applications filed.

“(d) Reading the Help Wanted section of local newspapers and responding to appropriate ads.

“(e) Reporting by telephone to the Barron 'County Family Support Agency once a month and within 1 business day of obtaining a job.

“(f) Not refusing any job which he is physically able to do, even if the job is not in his chosen trade or occupation, or is not full-time, or pays less than the pay he is used to, or is temporary.”

5 Sec. 767.01, Stats., provides as follows:

“Jurisdiction. (1) The circuit courts have jurisdiction of all actions affecting the family and have authority to do all acts and things necessary and proper in such actions and to carry their orders and judgments into execution as prescribed in this chapter. All actions affecting the family shall be commenced and conducted and the orders and judgments enforced according to these statutes in respect to actions in circuit court, as far as applicable, except as provided in this chapter.

“(2) A person who has sexual intercourse in this state thereby submits to the jurisdiction of the courts of this state as to an action brought under this chapter with respect to a child who may have been conceived by that act of intercourse.

“(3) An action under s. 767.46 may be brought in the county in which the child or the alleged father resides or is found or, if the father is deceased, in which proceedings for probate of his estate have been or could be commenced.”