249 P.3d 413
Idaho Ct. App.2011Background
- Ryan and Belinda Rodriguez divorced in 2001 with joint legal custody and Ryan awarded primary physical custody; Belinda ordered to pay $289/month child support.
- Belinda failed to appear at a hearing after which the decree was modified to give Ryan full physical custody and Belinda received six hours of supervised visitation weekly.
- Belinda did not pay child support, and in 2006 Ryan filed a contempt action; Belinda was incarcerated and later served 45 days for contempt.
- In 2007 Belinda petitioned to modify visitation to visit the hospitalized son more; Ryan filed contempt for nonpayment for Aug–Dec 2006.
- A 2008 magistrate hearing found Belinda was incarcerated Sept–Nov 2006 and not incarcerated in Aug, early Sept, or Dec 2006, and held her in contempt for those months; the magistrate dismissed Belinda’s petition to modify visitation as a contemnor.
- The district court reversed, remanding for further proceedings, and the court of appeals affirmed, holding Nab applies to custody/visitation modifications and remanding for a purge-impossibility determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nab applies to custody/visitation modifications | Rodriguez argues Nab governs whether contemnors can seek modification. | Rodriguez contends Nab is applicable to support and custody/visitation, and purge-impossibility must be shown. | Nab applies to both support and custody/visitation modifications. |
| Whether the magistrate had authority to hear Belinda’s modification petition without a purge determination | Rodriguez contends a hearing was permissible if purge was impossible. | Belinda argues a hearing should be allowed only after purge or impossibility is shown. | Remand for a determination whether purge was impossible at the time of the hearing. |
Key Cases Cited
- Sauvageau v. Sauvageau, 59 Idaho 190, 81 P.2d 731 (Idaho 1938) (contempt-related modification rights discussed (dicta))
- Brown v. Brown, 66 Idaho 625, 165 P.2d 886 (Idaho 1946) (contempt purges required before modification; welfare of children governs remand)
- Hoagland v. Hoagland, 67 Idaho 67, 170 P.2d 609 (Idaho 1946) (contempt purges required; lack of authority to hear modification until purge)
- Lusty v. Lusty, 70 Idaho 382, 219 P.2d 280 (Idaho 1950) (burden to show no ability to pay; cannot modify until purge)
- Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Idaho Ct.App. 1988) (trial court without authority to modify if contemnor unless purge-impossibility shown; incarceration can create impossibility)