July 15, 1999
DANIEL LóPEZ, APPELLANT
ELIZABETH YSLA, APPELLEE.
Before Terry, Steadman and Ruiz, Associate Judges.
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Appeal from the Superior Court of the District of Columbia
(Hon. Henry F. Greene, Trial Judge)
Argued April 29, 1999
Ruiz, Associate Judge: This appeal arises from the trial court's dismissal of appellant Daniel López's motion to reduce child support and its order holding López in civil contempt for failure to pay child support. López claims that the trial court abused its discretion in dismissing his motion and in holding him in contempt. After a review of the record, we reverse the trial court's dismissal of López's motion to reduce child support and remand for a hearing to determine whether López did in fact make child support payments to Barbara Kolb between July 1994 and June 1995. As for the civil contempt order, because there is no certified transcript of the complete proceedings before Judge Greene on March 1, 1996, we are unable to review the order on the present record. *fn1 We, therefore, instruct the parties to pursue the preparation of a statement of proceedings and evidence. See D.C. App. R. 10 (d) (1999). *fn2 We note, however, that if the unofficial portion of the transcript provided by Ysla as an appendix to her brief on appeal is an accurate representation of the March 1, 1996 proceedings, we discern no abuse of discretion in the trial court's decision to hold López in civil contempt for failure to pay child support for the period of June 1995 to February 1996.
On August 13, 1993, Daniel López was ordered to pay $110 bi-weekly in child support to Elizabeth Ysla for the maintenance of their daughter. *fn3 López filed a motion to reduce child support on April 25, 1994, arguing that he was entitled to a downward adjustment in his child support payments to Ysla based on the child support he paid to Barbara Kolb, the mother of his three older children. After a modification hearing on July 7, 1994, the trial court denied his motion on the ground that López had failed to show a consistent child support payment record. In a written order dated July 14, 1994, the court indicated the conditions under which López might file another modification motion, stating:
"As the Court indicated at the July 7 hearing, should plaintiff establish a consistent record of child support payments to Ms. Kolb by making such payments into the Court Registry for at least five months, he could file another motion seeking a reduction for child support paid to the Kolb children, but in the absence of such a record, this Court would be unwilling to entertain another motion regarding this issue." *fn4
López did not appeal from the trial court's denial of his first motion to reduce child support payments.
Two weeks later, López filed a second motion to reduce child support, requesting a hearing on or about January 1, 1995 and asking that the court make any reduction retroactive to the July 29, 1994 filing date. *fn5 A year and a half later, on February 14, 1996, the trial court summarily denied the motion on the ground that it was a "frivolous" attempt to relitigate the same issue that had been presented in his first motion to reduce child support and denied by the court. The court further noted that it discredited López's claim that he had permission to refile his motion before he had established a consistent payment record. *fn6
On December 7, 1995, Ysla filed, inter alia, a motion to hold López in contempt for failure to pay child support. *fn7 At the February 14, 1996 hearing, after denying appellant's second motion to reduce child support, the trial court then considered the contempt motion, continuing the hearing to March 1, 1996. After determining that López was in arrears on his child support obligations in the amount of $2,310 and that appellant had "willfully failed to pay any child support since June 12, 1995, notwithstanding his financial ability to do so," the trial court held López in contempt of court, sentenced him to sixty days in prison, and stayed the sentence upon condition that he make bi-weekly $135 payments. *fn8
López appeals from the denial of his second motion to reduce support and from the order holding him in contempt of court for failure to pay child support.
1. Motion to reduce child support.
López argues that the trial court abused its discretion by denying his second motion to reduce child support without considering his support payments for his other children since the denial of his first motion to reduce child support. Under the District of Columbia Code, a child support order may be modified upon a showing that there has been a "substantial and material change" in a party's ability to pay since the order was issued. See D.C. Code § 30-504 (a) (1998); see also D.C. Code § 16.916.1 (o) (10) (1997) (party may move to modify a child support order at any time). When a party seeks to modify an existing child support order, the trial court must conduct a hearing, make a finding, and enter a judgment pursuant to the child support guideline. See D.C. Code § 16.916.1 (a). Whether a child support order should be modified is a question committed to the sound discretion of the trial court, and this court will not reverse absent a clear showing of abuse of discretion. Burnette v. Void, 509 A.2d 606, 608 (D.C. 1986) (citation omitted).
In this instance, the trial court did not conduct a full evidentiary hearing on López's motion to reduce his child support payments to Ysla, despite López's representations that he had documentation showing that he had made child support payments to Barbara Kolb, the mother of his three older children, between July 1994 and June 1995. *fn9 Instead, the trial court summarily denied López's second motion based on its belief that the motion, filed two weeks after the trial court's July 14, 1994 order denying López's first motion to reduce child support, was a "frivolous" attempt to relitigate the same issue. However, as López explained at the hearing, he filed the second motion soon after his first motion was denied in an attempt to ensure that any future reduction would be retroactive to the second motion's filing date of July 29, 1994. *fn10 See supra notes 6 and 7. This claim is supported by the language of the second motion, in which López recognizes the condition under which the trial court would be willing to entertain another motion to reduce, namely that he establish a consistent payment record of at least five months, but asks the court to make any future reduction retroactive to the July 29, 1994 filing date. In addition, in his second motion López requested a hearing on or about January 1, 1995, approximately five months from the motion's July 29, 1994 filing date.
We consider it immaterial whether or not the trial Judge "authorized" López to file a second motion to reduce child support. Court permission is not usually necessary before a litigant may seek judicial redress contemplated by law. Here, there was no prohibition on further filings, but rather a judicial cautionary note indicating that further motions to reduce would also be denied unless López proved his claim of competing child support payments by presenting a record of consistent payment of such other child support. In any event, the hearing on López's second motion was not in fact held until March 1, 1996, eighteen months after the motion was filed. At that hearing, the burden of proving changed circumstances was on López, as the party seeking modification. See Guyton v. Guyton, 602 A.2d 1143, 1145 (D.C. 1992). The record supports that the trial court did not permit López to provide proof of changed circumstances based, apparently, on a misunderstanding regarding the basis for López's second motion. Although there is no doubt that the second motion was filed before López had established the required payment record, López appears to have renewed his motion immediately after the court's denial of his first motion to preserve his right to a retroactive reduction in payments, see D.C. Code § 30-504 (c) (modification may be permitted for the period during which a petition for modification is pending), and stated that he was prepared, when the hearing was held eighteen months later, to prove his child support payments to Kolb. Therefore, we conclude that the trial court abused its discretion in denying López's second motion to reduce child support without first considering his alleged proof of child support payments between July 1994 and June 1995. *fn11
2. Motion for civil contempt for failure to pay child support. *fn12
López contends that the trial court also abused its discretion by finding him in contempt absent sufficient evidence of his ability to pay. *fn13 "It is settled that a court has discretion to adjudicate a person in contempt of court for wilful failure to obey an order of child support where the contemnor has the financial ability to comply." Desai, supra note 12, 711 A.2d at 825 (citations omitted); see also Hoffman v. Hoffman, 210 A.2d 549, 550 (D.C. 1965) ("court may enforce a father's obligation to support his minor children only commensurate with his financial ability to pay") (quotations and citation omitted). Ability to pay is "not merely a function of actual earnings but is to be derived, more broadly, from earning capacity in the current job market, given one's educational background and work experience." Freeman v. Freeman, 397 A.2d 554, 556 (D.C. 1979). When faced with a contempt motion for noncompliance with a support order, the defendant bears the burden of showing inability to pay. See Smith, supra note 12, 427 A.2d at 932 (citations omitted).
We note first that the record before us on appeal is incomplete due to the fact that a portion of the official transcript of the March 1, 1996 hearing, containing the trial court's findings of fact and Conclusions of law, is unavailable, apparently through no fault of the parties. See supra note 1. Absent the complete transcript, we are unable to review the trial court's March 1, 1996 ruling granting appellee's motion for contempt. We, therefore, direct the parties' attention to D.C. App. R. 10 (d) which outlines the conditions under which, by special leave of this court, a party may prepare and submit a statement of proceedings and evidence in lieu of an official transcript to enable appellate review. We further note, however, that should the parties and the trial court agree that the unofficial portion of the March 1, 1996 transcript, attached to appellee's brief on appeal, is an accurate statement of the proceedings, we discern no abuse of discretion in the trial court's decision to grant the contempt motion for the reasons that follow.
The trial court explicitly found that López had the financial ability to make child support payments, but failed to do so. Assuming that the official transcript of the March 1, 1996 hearing is as presented in the attachment to Ysla's brief, this finding is supported by López's testimony which suggested that he actually earned more than his reported gross income, *fn14 as well as certain statements which indicated that, on months where he had few business expenses, he failed to pay child support. *fn15 In particular, the trial court questioned López's decisions to pay other debts rather than cover his child support obligations. *fn16 Although López complains that the trial court overestimated his limited net income during the relevant time period, the trial court's findings in the unofficial transcript, if verified, are supported by the record. See Smith, supra note 13, 427 A.2d at 932. Moreover, based on the unverified record, the trial court's determination that López was not a credible witness is not clearly erroneous. See Johnson v. United States, 616 A.2d 1216, 1234 (D.C. 1992), cert. denied, 507 U.S. 996 (1993) (noting deference to the trial court's credibility determinations respecting witnesses who testify). Finally, the trial court determined that, whatever López's actual income might be, he had the ability to meet his "fundamental obligation to go out and earn money and support these children." *fn17 We conclude, on the basis of the unofficial transcript, that there is clear and convincing evidence supporting the trial court's finding that Lopez violated a support order that he had the ability to pay. Thus, the trial court did not abuse its discretion in holding López in civil contempt for noncompliance with the support order, but staying execution of the order on the condition that López meet his payment obligations. See Smith, supra note 13, 427 A.2d at 932 ("A court may order commitment for contempt but stay imprisonment on the condition of compliance with reasonable, specific requirements.")
For the foregoing reasons, we remand to the trial court for a hearing on López's motion to reduce, at which time López may present evidence in support of his claim that he made consistent child support payments to Barbara Kolb between July 1994 and June 1995 and any other evidence necessary to justify his claim for a reduction in child support payments. Absent an official transcript of the trial court's March 1, 1996 ruling, we also remand on the contempt issue to give López, in conjunction with Ysla and the trial court, the opportunity to prepare a statement of the proceedings.
Reversed and remanded.