[Copyrighted Material Omitted]
James M. Runsvold, Caldwell, argued for appellant.
Bobbi K. Dominick, Boise, argued for respondent.
This is an appeal out of Ada County from a judgment by the district court upholding a magistrate judge's order dismissing a father's motions to modify child custody and child support on the ground that the father, who was in contempt for failing to make one payment of child support and was unable to purge the contempt by paying all delinquent child support, had failed to show that his current inability to purge the contempt was for reasons beyond his control. We reverse the judgment of the district court.
On June 11, 2003, the State of Idaho Department of Health and Welfare obtained a judgment decreeing that Steven Wayne Adams (Father) and Amy Beth Slane (Mother) were the parents of a baby girl. The judgment included an order that the Father shall pay child support in the sum of $635.00 per month, beginning on April 1, 2003. The judgment did not address custody of the child.
On March 11, 2010, the Mother filed a motion seeking to have the Father held in contempt for failing to pay child support. In response, on April 20, 2010, the Father filed a motion seeking to modify the judgment by granting him sole legal and physical custody of the baby girl and by terminating his obligation to pay child support. On the same date, he also filed a motion seeking to reduce the amount of his monthly child support payment on the ground that his income had substantially and materially changed.
A hearing on the motion for contempt was held before a magistrate judge on January 5, 2011. The judge found the Father guilty of one count of contempt for failing to pay child support due for November 2009 in the sum of $635.00. The judge also found that the Father had failed to make the child support payments due for seven other months, but the Mother had only alleged one count of contempt rather than a separate count for each month. The judge sentenced the Father to thirty days in jail, suspended twenty-five days of the sentence, and placed the Father on probation for two years. The terms of probation included that he pay $5,715.00 in back child support by December 1, 2011.
On March 2, 2011, the magistrate judge entered an order dismissing the Father's motions to establish child custody and reduce child support on the ground that: (a) he had
been found guilty of one count of contempt for non-payment of child support in November 2009 in the sum of $635.00; (b) he admitted he was unable to purge the contempt by paying $5,715.00 before his sentencing for contempt; and (c) he did not show that his inability to purge the contempt was for reasons beyond his control, such as incarceration. The court held that it was therefore unable to entertain a motion to modify child support pursuant to Nab v. Nab,114 Idaho 512, 757 P.2d 1231 (Ct.App.1988), and that both ...