League v. League , 1983 Okla. Civ. App. LEXIS 201 ( 1983 )

BRIGHTMIRE, Presiding Judge.

The main question is whether the defending father can be jailed for failure to pay a judgment previously granted plaintiff mother for accrued unpaid child support. We hold he cannot be and reverse.

I

The plaintiff mother obtained a default divorce from defendant father in 1969. The mother asked for and was awarded custody of their two minor children and the father was ordered to pay $75 a month support per child. The father thereafter paid no child support, so on January 19, 1977, the mother filed a motion for an order to increase the monthly support payments to $200 per child and at the same time she asked the court to cite the father for contempt of court because of failure to pay the child support and her attorney’s fee as ordered.

The citation was heard February 17, 1977. The father pleaded guilty to willful failure to comply with the 1969 payment orders. The court thereupon found the father guilty of indirect contempt of court, ordered the father to pay $50 a month on the arrearage, passed sentencing to September 15, 1977, and released the father on a $10,000 bond. Then, however, the court further found that the child support arrear-age amounted to $12,775 and entered a judgment against the father for that amount, together with eight percent per annum interest until paid.

Sentencing on the contempt finding was thereafter passed from time to time. On November 18, 1980, the court entered a judgment for the unpaid interest on the February 1977 judgment and recited that the total judgment was for $14,545, which should begin to draw interest at eight percent. The court also decreed that the February 1977 order for paying accrued child support was modified to $96 a month and the father ordered to present a proposal for total satisfaction of the arrearage judgment on May 18, 1981 — the date to which sentencing for the February 17, 1977, contempt finding was passed. The father did present a proposal for satisfying the judgment as ordered.

Eventually, on July 13, 1981, an order was entered that forms the foundation for this appeal. In it the trial court found that defendant had not satisfied the November 18, 1980, judgment, found the father “guilty of indirect civil contempt” without mentioning why or for what reason, and sentenced him to jail for one year or until he purged himself of contempt by paying off the $14,545 judgment. An appeal bond of $15,000 was set, which the supreme court reduced to $2,000 a short time later.

II

We hold the trial judge exceeded his jurisdiction in imposing the sentence he did. Historically there had been but one post-decree contempt citation issued against the father and that was the one he pleaded guilty to on February 17, 1977.

The first trouble with the July 13, 1981, “Judgment and Sentence” arises from the fact that after finding the father guilty of contempt the court did not impose a remedial sentence but instead passed sentencing to a future date and then reduced the arrearage to judgment. When this happened the contempt finding became inoperative and the mother’s enforcement remedies were narrowed to those relating to enforcement of the judgment.¹ As a matter of fact, so far as we can discern, no court ever attempted to sentence the father in connection with the February 17, 1977, contempt finding.

The second problem with the July 13 order is that it finds the father “guilty of indirect civil contempt” — a finding based on a charge that was never lodged, identified or heard, and was thus, as to the father, a fundamental deprivation of due process. The only thing we can see that the contempt finding could possibly have been for was for a failure to pay the earlier judgment in full. If indeed it was, then the order ran afoul of laws that prohibit enforcement of judgments for debt by contempt proceedings. It is constitutionally impermissible to imprison one for debt. Okla. Const, art. II, § 13.²

Ill

Complaint is also made that the November 18, 1980, judgment erroneously reduced to judgment the interest due under the original judgment, which had the effect of compounding interest on the original judgment. The contention, of course, has merit. On November 18, 1980, accrued interest on an earlier judgment was not a justiciable matter — only unpaid child support payments that had accrued since the earlier judgment. As we understand the evidence the father made the required support payments as they came due after rendition of the first judgment and had made some reduction in the judgment itself. Certainly the court could not effectively adjudicate that which had already been adjudicated. In other words to reenter the previous judgment amounted to a judicial redundancy and accomplished nothing.

Under the circumstances the November 18, 1980, “judgment” has to be considered merely a recital of the amount of principal and accrued interest due on the 1977 judgment.

The July 13, 1981, “Judgment and Sentence” is reversed.

DeMIER, J., concurs. STUBBLEFIELD, J., concurs in result.

1 . Wade v. Wade, Okl., 570 P.2d 337 (1977).

2 . 12 O.S.1981 § 850, authorizes the court to order a judgment paid in installments and to enforce compliance with the order by punishment as for contempt. No such installment order was made after entrance of the judgment.