Mower County Human Services ex rel. Swancutt v. Swancutt

539 N.W.2d 268, 1995 Minn. App. LEXIS 1368, 1995 WL 649825
CourtCourt of Appeals of Minnesota
DecidedNovember 7, 1995
DocketNo. C4-95-863
StatusPublished
Cited by1 cases

This text of 539 N.W.2d 268 (Mower County Human Services ex rel. Swancutt v. Swancutt) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mower County Human Services ex rel. Swancutt v. Swancutt, 539 N.W.2d 268, 1995 Minn. App. LEXIS 1368, 1995 WL 649825 (Mich. Ct. App. 1995).

Opinion

OPINION

DAVIES, Judge.

Appellant challenges both the district court’s refusal to modify his child support obligation and the district court’s contempt order. We affirm in part, but reverse the contempt order.

FACTS

Appellant Mark Swancutt is the father of three children, the youngest of whom was born in April 1991. While married, he and his former wife Kimberly Swancutt enjoyed a good living from appellant’s farm operation. Still, appellant claims he has made little or no income from farming since his divorce, but has instead shown consistent losses. Because appellant has not supported his children, they have relied on Mower County public assistance.

In August 1994, pursuant to Mower County’s motion for an upward modification, an administrative law judge (ALJ) increased appellant’s child support from $106 per month to $484 per month. The ALJ based this amount on appellant’s $1,384 net monthly earnings at a security job he had then held for more than eight months. The ALJ advised appellant that if he left his security job “in order to avoid child support,” that income would still be imputed to him. Six days later, appellant voluntarily quit the job.

In March 1995, the district court heard the matter, pursuant to a motion for contempt by Mower County Human Services and appellant’s own motion to reduce his child support obligation to $50 per month. The court found that appellant had child support ar-rearages of $11,035.74 through the date of the hearing. (Since 1987, appellant had made only five child support payments other than when payments were withheld from his security job paycheck.)

The district court further found that appellant was voluntarily unemployed because he quit his security job and had adamantly refused to search for employment off the farm despite his recent history of farm losses and that he thus showed a lack of good faith in not maintaining or obtaining gainful employment. The court ordered judgment against appellant for all child support arrearages, denied his motion to reduce his obligation, and held him in contempt for his failure to pay. The court sentenced appellant to jail, subject to two purge conditions: (1) that appellant pay four months of child support arrearages ($1,936) by March 31,1995, which he did; and (2) that appellant

keep himself purged of his contempt by continuing to make his court ordered child support payments along with 20% of the court ordered payment to be payable toward arrearages.

This appeal challenges this second “continuing” purge condition and the refusal to re[271]*271duce child support.1

ISSUES

I. Did the district court abuse its discretion by issuing a continuing prospective contempt order?

II. Did the district court abuse its discretion in denying appellant’s motion to modify his child support obligation?

ANALYSIS

I.

Appellant contends that the district court erred in its contempt order by requiring that, to avoid jail time, he regularly meet his future support obligations. He argues that this requirement will keep him in conditional contempt of court until his youngest child reaches age 18, ie., until April 2009. Mower County agrees, but argues that a prospective contempt order like this fosters judicial economy by eliminating the first hearing of the two-hearing contempt process.

Contempt law requires two hearings before a contemnor may be jailed. Mahady v. Mahady, 448 N.W.2d 888, 891 (Minn.App. 1989) (citing Tell v. Tell, 383 N.W.2d 678, 684 (Minn.1986); Westgor v. Grimm, 381 N.W.2d 877, 880 (Minn.App.1986)). At the first-stage hearing, the district court must do three things. First, to justify a conditional contempt order, the court must determine that the obligor had the ability to pay the obligations as they came due. Mahady, 448 N.W.2d at 890 (citing Hopp v. Hopp, 279 Minn. 170, 175, 156 N.W.2d 212, 217 (Minn.1968)). Second, the court must set purge conditions in consideration of the obligor’s then-current ability to meet them. Id. (citing Minn.Stat. § 518.12; Hopp, 279 Minn. at 175, 156 N.W.2d at 217). Third, the court must determine that the threat of confinement is “reasonably likely to produce compliance.” Hopp, 279 Minn. at 175, 156 N.W.2d at 217.

The obligor has a right to a second-stage hearing to determine if the obligor has met or is excused from meeting the purge conditions of the first-stage order. Mahady, 448 N.W.2d at 891. At this hearing, the obligor is again given an opportunity to show compliance with the order or to explain the reasons for noncompliance. Tell, 383 N.W.2d at 684. At this time, the court must make one final finding: whether the obligor inexcusably failed to comply with the purge conditions. Only if the court so determines may the court adjudge the obligor in contempt and order confinement. Mahady, 448 N.W.2d at 891.

In this case, the continuing contempt order would eliminate the first-stage hearing on any future nonpayment. Instead, if at any time appellant falls behind in his support payments, the court would need to conduct only a second-stage hearing — at which time it could execute an immediate jail sentence if appellant does not show compliance with his support obligation or an excuse for noncomplianee. In other words, appellant can never — until his youngest child reaches majority — completely escape the threat of an immediate second-stage contempt finding. He would be at risk of a confinement hearing whenever he missed a monthly support payment.

We find this sort of prospective and rolling purge condition unacceptable. Rather, a first-stage contempt order must always be expressly conditioned on appellant’s right to purge it in the immediate future. See generally Hopp, 279 Minn. at 170, 156 N.W.2d at 216 (purpose of threatening confinement is to compel compliance). In other words, the proceeding must preserve as to future obligations the right to a new first-stage (threatening) proceeding, as well as a second-stage hearing.

By this decision, we do not suggest that a district court may not set a purge date in the near future with a purge condition that includes a sum for one or more intervening support payments. For example, we believe in the case of a farmer whose income is seasonal, a district court could, following a [272]*272first-stage hearing in September, issue a conditional contempt order setting a December purge date. The court could reasonably include as part of the purge conditions that the farmer pay not only arrearages, but also the monthly support payments to come due between September and December. Such a contempt order would not be viewed as covering future obligations, but rather would have a one-shot purge date in the relatively near future by which time the obligor is to be “up-to-date.”

II.

Child support modification orders are reviewed under an abuse of discretion standard. Hennessy v. Stelton, 302 Minn. 550, 551, 224 N.W.2d 926

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Related

Mower County Human Services Ex Rel. Swancutt v. Swancutt
551 N.W.2d 219 (Supreme Court of Minnesota, 1996)

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Bluebook (online)
539 N.W.2d 268, 1995 Minn. App. LEXIS 1368, 1995 WL 649825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mower-county-human-services-ex-rel-swancutt-v-swancutt-minnctapp-1995.