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Daum v. Daum

MAY 4, 1973.




APPEAL from the Circuit Court of Bond County; the Hon. JAMES O. MONROE, Judge, presiding.


This is an appeal from the Circuit Court of Bond County.

On February 3, 1967, the court entered a decree for divorce to the plaintiff, Leona Carole Daum; the defendant, Gene Walter Daum, was ordered under the terms of the decree to pay to the plaintiff $40 per week as partial support for the couple's four children. This decree was subsequently modified on November 18, 1968, as a result of the plaintiff's Petition to Modify, wherein the court increased the child support payments to $50 per week.

On July 17, 1970, the plaintiff filed a Petition for Rule to Show Cause alleging that the defendant failed to meet the support obligations of the court's decree. An Order to Show Cause was entered the same day. In response thereto the defendant filed his own Petition for Order to Show Cause alleging that plaintiff denied him visitation to the children. On August 5, 1970, the defendant filed a Notice to Appear and Produce Tax Records and a Petition for Modification of Decree, seeking a reduction in the amount of the support payments. The defendant next filed, on December 18, 1970, a Petition for Order to Show Cause for the plaintiff's failure to provide tax records.

The plaintiff agreed at a hearing held on November 20, 1970, to produce the requested income tax returns, but the court, subsequent to the hearing, determined that it would not be necessary for the plaintiff to produce the actual tax records. The originals having been lost, the court indicated its opinion that it would cause an unnecessary delay to obtain duplicates from the Internal Revenue Service.

The defendant was, however, supplied by letter from the plaintiff's counsel the tax information for the years requested. The plaintiff did subsequently on July 26, 1971, produce copies of the tax returns, and defendant's Petition for Order to Show Cause was denied by order filed July 28, 1971. The information in the tax returns was in accord with the information that had previously been supplied by the plaintiff's counsel. The hearing on July 26, 1971, was to be the initial hearing on all matters then outstanding, but the defendant's counsel requested that the hearing only consider the discovery issues. The defendant's request was granted and the hearing was continued until August 9, 1971, an agreed upon date. It appears that on August 3, 1971, the defendant's counsel realized that he had an apparent conflict in the date set for the hearing, in that he had planned to take a vacation from August 6 until August 22. The defendant's counsel, without first obtaining a continuance from the court, proceeded on his vacation.

Apparently the defendant's counsel informed the clerk of the Circuit Court that he was desirous of obtaining a continuance, but made no attempt to communicate with the trial court. He did, without success, attempt to inform opposing counsel of his desire for a continuance. No continuance was granted. The court so informed the defendant's counsel by letter, who replied by letter that "it will be impossible for me to be present." The defendant's counsel's letter was not received by the court until August 10, one day after the hearing. When the matter was called for hearing on August 9, 1971, the plaintiff and counsel were present; the defendant and his counsel were not. The trial court then obtained the presence of the defendant and proceeded to hear the issues. A full hearing was held and the defendant testified and made his position known, especially regarding his financial status.

The court granted the defendant visitation for the period of from August 10 to August 24, 1971, so that the defendant could exercise rights of visitation prior to the children's return to school.

The court also ruled, among other things, that the defendant was in contempt for willful failure to pay any child support for a period of approximately six months total payment (more than 24 weeks accrual), plus medical bills of some $675, and gave defendant two weeks to purge himself in an unspecified amount. The court also denied defendant's Petition for Order to Show Cause, finding that the plaintiff was not willfully withholding visitation of the children, and further finding that the defendant was then living with a woman not then his wife. The court also denied defendant's petition to reduce support payments, finding that the payment of $50 per week for four children was equitable and appropriate.

The court then, on August 23, 1971, with a defendant's counsel present, reconsidered all the matters determined on August 9, 1971. After reconsideration, the court confirmed its August 9th holdings in all relevant aspects.

On August 23, 1971, the defendant admitted that he made no payments to purge his contempt, so remaining in contempt, he was sentenced to 30 days in the County Jail with further purgation allowed by paying $200. The case was then reset for hearing on November 1, 1971, for further punishment or purgation after the defendant's crops were harvested. At this state of the proceedings, this appeal was brought by the defendant.

The defendant urges that the court erred in the following regard:

(a) holding the defendant in contempt of court for failure to pay the ordered child support;

(b) that the court should have found a change in circumstances and modified the ...

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