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.
The opinion of the court was delivered by: Melanson, Judge
Decision of the district court, on intermediate appeal from the magistrate, reversing order dismissing petition to modify visitation, affirmed; case remanded.
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.
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.
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.
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 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, ...