IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37375
RYAN J. RODRIGUEZ, )
) 2011 Opinion No. 10
Plaintiff-Appellant, )
) Filed: March 10, 2011
v. )
) Stephen W. Kenyon, Clerk
BELINDA ALEXIA RODRIGUEZ, )
)
Defendant-Respondent. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Kathryn A. Sticklen, District Judge. Hon. Michael J. Reardon,
Magistrate.
Decision of the district court, on intermediate appeal from the magistrate,
reversing order dismissing petition to modify visitation, affirmed; case remanded.
Jerry M. Ward, Boise, for appellant.
Bauer & French, Boise, for respondent. Charles B. Bauer argued.
______________________________________________
MELANSON, Judge
Ryan J. Rodriguez appeals from the district court’s intermediate appellate decision
reversing the magistrate’s order dismissing Belinda Alexia Rodriguez’s petition to modify
visitation. For the reasons set forth below, we affirm the district court’s decision and remand to
the magistrate for further proceedings.
I.
FACTS AND PROCEDURE
Ryan and Belinda were divorced in 2001. The decree of divorce awarded Ryan and
Belinda joint legal custody of their two children with primary physical custody awarded to Ryan.
Belinda was ordered to pay child support in the amount of $289 per month. Approximately one
month after the entry of the decree of divorce, Ryan filed a motion to modify custody. Belinda
failed to appear at the hearing, and the divorce decree was modified to give Ryan full physical
custody of the children. Belinda was awarded six hours of supervised visitation once a week.
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Belinda did not make any child support payments. In 2006, Ryan filed a motion for contempt
against Belinda for failure to pay child support. Belinda failed to appear at the contempt hearing
and was subsequently arrested, found guilty of contempt, and sentenced to forty-five days in jail,
which she served from September to November 2006. Sometime during that same year, the
parties’ son was diagnosed with leukemia.
In 2007, Belinda filed a petition to modify visitation so she could visit her son more
frequently while he was in the hospital. In response, Ryan filed an additional motion for
contempt alleging Belinda had failed to pay child support for the months of August through
December 2006. A hearing on Belinda’s petition was delayed due to scheduling difficulties, but
a temporary order was issued allowing Belinda additional visitation of the parties’ son at the
hospital. In late 2008, the magistrate conducted a hearing on Ryan’s motion. The magistrate
found that Belinda was incarcerated from late-September to mid-November 2006 and that
Belinda was incapable of making payments during that time. The magistrate further found that
Belinda was not incarcerated in August, early September, or December 2006 and failed to make
child support payments during those months. The magistrate ultimately found Belinda in
contempt for August, early September, and December 2006. Based on this finding of contempt,
the magistrate dismissed Belinda’s petition to modify visitation holding that, as a contemnor,
Belinda was prevented as a matter of law from having a hearing on the petition.
Belinda appealed the dismissal of her petition to modify visitation to the district court.
The district court reversed, holding, in pertinent part, that the magistrate erred by dismissing
Belinda’s petition without a hearing and remanded the case for further proceedings. Ryan
appeals the district court’s reversal of the magistrate’s dismissal of Belinda’s petition to modify
visitation. Ryan also seeks costs and attorney fees on appeal.
II.
ANALYSIS
Ryan argues that the district court erred in reversing the dismissal of Belinda’s petition to
modify visitation. Specifically, Ryan asserts that the magistrate correctly applied the law to
conclude that it was without the authority to hear Belinda’s modification action regarding
visitation because she was found in contempt for failure to pay child support. On review of a
decision of the district court, rendered in its appellate capacity, we review the decision of the
district court directly. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 (2008). We
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examine the magistrate record to determine whether there is substantial and competent evidence to
support the magistrate’s findings of fact and whether the magistrate’s conclusions of law follow from
those findings. Id. An abuse of discretion will be found if the magistrate’s findings of fact are
not supported by substantial evidence or if the magistrate does not correctly apply the law.
Nicholls v. Blaser, 102 Idaho 559, 561, 633 P.2d 1137, 1139 (Ct. App. 2007).
Generally, a party who is in contempt for failure to pay child support is not entitled to a
hearing on a motion to modify a divorce decree unless the party purges himself or herself of the
contempt. See Sauvageau v. Sauvageau, 59 Idaho 190, 193, 81 P.2d 731, 732 (1938). In
Sauvageau, a wife filed for divorce from her husband and requested custody of the couple’s two
minor children. The district court refused to grant the divorce on a procedural technicality, but
entered an order giving custody of the couple’s two children, one to each parent, and ordered the
husband to pay spousal and child support to the wife. The husband subsequently filed an appeal
contesting the district court’s order. Before addressing the merits of the husband’s arguments on
appeal, the Idaho Supreme Court noted that the husband was in contempt for failing to pay
spousal and child support. The Court went on to state, in dicta, that because the husband was in
contempt it was “doubtful if [he] would be entitled to a hearing on appeal until he either
complies with the order or purges himself of contempt.” Sauvageau, 59 Idaho at 193, 81 P.2d at
732. The Court went on to state that it was not passing on that question. Id.
The Idaho Supreme Court’s statement, in dicta, in Sauvageau was the genesis of a line of
cases that describe a contemnor’s rights in relation to a request to modify a divorce decree. The
Court next addressed the issue in Brown v. Brown, 66 Idaho 625, 165 P.2d 886 (1946). In Brown
a husband, who was found in contempt for failure to pay child support, sought modification of
his child support payments and of a child custody order which granted custody to his children’s
grandparents. The Court held that the husband had no right to be heard on his motion to modify
child support until he had purged himself of the contempt by payment of the past-due
installments. Id. at 628, 165 P.2d at 887. The Court also held that the husband had no right to be
heard on his motion to modify child custody unless he purged himself of contempt or could
provide a valid excuse for nonpayment. Id. at 629, 165 P.2d at 887. The Court went on to note,
however, that the welfare of the children was paramount and remanded the case for further
findings on whether the modification of child custody in favor of the grandparents was in the
best interest of the children. Id. at 629-30, 165 P.2d at 888.
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Several months later, the Court again addressed the issue of a contemnor’s ability to
move for modification of a child custody agreement. Hoagland v. Hoagland, 67 Idaho 67, 170
P.2d 609 (1946). In Hoagland, a husband, who was found to be in contempt for failure to pay
child support, moved to modify a child custody decree. The Court held that, as a contemnor, the
husband was not entitled to a hearing on his motion to modify because “the trial court was
without authority to proceed with the hearing or modify the decree until the applicant had purged
himself of the contempt by payment of the delinquent installments.” Hoagland, 67 Idaho at 70,
170 P.2d at 611. The Court based this holding on Sauvageau and Brown. Hoagland, 67 Idaho at
69, 170 P.2d at 610. The holding in Hoagland marks a change in the Court’s stance on the rights
of contemnors who are seeking modifications of child support or child custody decrees. While
Sauvageau and Brown held that a contemnor does not have a right to modify a divorce decree
until he or she has purged himself or herself of contempt, Hoagland holds that a court is without
authority to hear a contemnor’s motion until he or she has been purged of the contempt. Thus,
under Hoagland, a court lacks authority to entertain the motion until the contemnor can
demonstrate he or she has purged themselves from the contempt by paying the past-due child
support installments. The Hoagland Court provided no procedural opportunity for a contemnor
to explain his or her present inability to make payments or to pay off the past-due installments.
The Court next addressed this issue in Lusty v. Lusty, 70 Idaho 382, 219 P.2d 280 (1950).
In Lusty, a husband who was in arrears on his alimony payments sought to have the court modify
the amount of his payments. The trial court conducted a unified hearing to first determine
whether the husband was in contempt for failure to pay child support and, if it determined he was
not, to also consider his motion to modify child support. Id. at 384, 219 P.2d at 281. The Court
noted that the burden was on the husband to show that he did not have the ability to pay. Id. at
388, 219 P.2d at 284. The Court held that the husband failed to meet this burden because the
evidence he provided via testimony and other sources did not sufficiently demonstrate that he did
not have the ability to pay and that, consequently, he had not purged himself of contempt. Id.
The Court went on to hold that he was not entitled to urge a modification of his divorce decree
until he had complied with the terms of his original divorce decree. Id. See also Hoagland, 67
Idaho at 69, 170 P.2d at 609.
This Court most recently addressed the issue of whether a contemnor may move to
modify child support in Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988). In Nab, a
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husband, who was in prison and also in arrears in his child support payments, sought to modify
the child support provision of his divorce decree. The trial court ruled that, as a matter of law, it
could not entertain Nab’s motion to modify until Nab’s contempt was purged. On appeal, this
Court reversed holding that a trial court is without authority to modify a child support order if the
movant is in contempt unless the movant shows that, for reasons beyond the movant’s control,
purging himself or herself of the contempt is impossible. Nab, 114 Idaho at 518, 757 P.2d at
1237. This Court held that, because Nab was in prison, it was presently impossible for him to
purge himself of his contempt and that, therefore, he was entitled to a hearing on his motion to
modify his child support payments. Id. at 519, 757 P.2d at 1238. In reaching this conclusion, we
noted that Nab’s incarceration was not voluntary because it was for an unrelated crime and was
not incurred for the purpose of avoiding child support payments. Id.
Here, the parties do not dispute the magistrate’s finding that Belinda was in contempt for
failure to pay child support. Belinda argues, however, that the magistrate failed to properly
apply the law because it did not determine whether, under Nab, it was presently impossible for
her to purge herself from her contempt. We begin by noting that Nab dealt with modification of
child support and not modification of child custody or visitation. Having noted that distinction,
we conclude that the holding of Nab applies in modification of child custody or visitation
proceedings. Under Nab, the magistrate was without authority to conduct a hearing on Belinda’s
motion to modify only if it determined that it was presently possible for Belinda to purge herself
of her contempt. In making this finding, the magistrate should have considered whether, at the
time of the hearing on her motion to modify child custody, it was impossible for Belinda to purge
herself of the contempt incurred for the period of August to late-September and December of
2006. 1 The burden was on Belinda to show that it was impossible at the time of the hearing to
purge herself of the arrearage she incurred from August to late-September and December 2006.
In this case, the magistrate failed to make a determination of whether it was presently
impossible for Belinda to purge herself of her contempt. The magistrate erred in failing to make
this determination before it decided whether or not to conduct a hearing on Belinda’s motion to
1
Belinda was also found in contempt for nonpayment of child support for the period of
July 2001 to September 2006. The July 2001 to September 2006 contempt finding was not
before the magistrate and the parties did not raise it as an issue on appeal. Therefore, we will
only address the magistrate’s finding of contempt for August to mid-September and December
2006.
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modify child custody. Therefore, we remand this case to the magistrate for a determination of
whether it was impossible at the time of the hearing to purge herself of the arrearage she incurred
from August to late-September and December 2006.
Ryan seeks costs and attorney fees on appeal. We have affirmed the district court, and
Ryan is not the prevailing party on appeal. Belinda did not seek attorney fees on appeal. Costs,
however, are granted as a matter of course to Belinda as the prevailing party. I.A.R. 40.
III.
CONCLUSION
We hold Nab applies to both modification of child support and child custody
proceedings. We also hold that the magistrate erred in failing to conduct a hearing on Belinda’s
motion to modify child custody without first determining whether it was impossible for Belinda
to purge herself of her contempt. Therefore, we affirm the district court’s decision and remand
to the magistrate for further proceedings. Costs on appeal, but not attorney fees, are awarded to
respondent, Belinda Alexia Rodriguez.
Chief Judge GRATTON and Judge GUTIERREZ, CONCUR.
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