State ex rel. Albrecht v. Albrecht

ROSSMAN, J. This is an appeal from an order finding father (respondent) in wilful contempt for failure to pay child support and sentencing him to a jail term of 60 days. Execution of sentence was suspended on the condition that respondent “pay the support obligation currently due.” We affirm. Father’s argument1 on appeal is two-pronged: He contends, first, that the motion and affidavit do not properly allege facts constituting contempt, and, second, that the proffered evidence fails to meet the requisite burden of proof, because his testimony that he was willing to pay support but unable to do so constituted a complete defense. We are convinced from a review of the record that there is sufficient evidence to support the trial court’s finding.2 dowever, we believe the pleading question requires discusión. Father argues that the motion and affidavit are eficient, because there is “no mention of [his] wilfully ailing to make support payments].” He relies heavily on State ex rel Blackwell v. Blackwell, 181 Or 157, 179 P2d 278, 79 P2d 1023 (1947), and State ex rel Bassett v. Bassett, 166 Or 628, 113 P2d 432, 114 P2d 546 (1941). Contrary to his pparent contention that those decisions insist on a specific llegation of “a wilful disobedience of a court order,” the ses are clearly less demanding. The court in State ex rel Bassett v. Bassett, supra, 166 Or at 634, referred to a quirement that the affidavit “set forth the facts constitutg the contempt,” and in State ex rel Blackwell v. Blackwell, supra, 181 Or at 163-64, concluded that an allegation those facts from which a “reasonable inference of wilful sobedience” may be drawn is sufficient. We find no sistence that the specific word “wilful” be added to the eadings. [202] In this case, the motion sought an order requiring father “to appear and show cause why he should not be held in contempt of Court for failure to support his minor children as previously ordered by this Court.” In a supporting affidavit, mother identified the prior order and father’s child support obligations thereunder and asserted that, according to Department of Human Resources records, he was delinquent in meeting those obligations. In addition, the record shows that the citation served with the motion and affidavit “commanded” father “to appear before the * * * Court * * * to show cause, if any exists, why [he] should not be held in contempt of Court for wilfully refusing to make support payments, * * (Emphasis added.) Surely, father, who sought out counsel and came forward to contest this matter, was well aware of the court’s purpose in issuing a citation requiring him to “show cause.” There could be no misapprehension as to what was happening and why it wa happening. To believe that matters would have bee improved somehow by placing the word “wilful” in th affidavit or motion can be nothing more than grasping at straw. The Supreme Court recently stated in In the Matter of Virginia Hanks, 290 Or 451, 460-61, 623 P2d 623 (1981) that: «* * * }n contempt proceedings initiated on the motion of a third party, * * * an affidavit stating facts sufficient to constitute a prima facie case is ‘essential to invoking the jurisdiction of the court.’ State ex rel Oregon State Bar v. Lenske, 243 Or 477, 480, 405 P2d 510, 407 P2d 250 (1966). The rationale for this rule is that the initial affidavit is in the nature of a complaint, to be governed by the rules of pleading and, like any initial pleading, it must give the contemnor adequate notice of the charge.” (Emphasis added.) The motion and affidavit in this case comply with th standard. Affirmed. Footnotes [1] Mother did not submit a brief. [2] The only direct evidence offered against father was a copy of the Department uman Resources record of his child support payment account. However, the 1 judge had the advantage of observing him, testify as to his financial situation, concluded from the evidence that there was an unexplained discrepancy een his actual and his purported available monies.