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Wagley v. Evans

May 14, 2009

JOHN R. WAGLEY, APPELLANT,
v.
POLLY KING EVANS, APPELLEE.



Appeal from the Superior Court of the District of Columbia (DRB3497-91) (Hon. Judith N. Macaluso, Trial Judge).

The opinion of the court was delivered by: Ferren, Senior Judge

Argued March 30, 2009

Before RUIZ and KRAMER, Associate Judges, and FERREN, Senior Judge.

A father appeals from an order holding him in civil contempt, with accompanying imprisonment, for failure to pay a substantial arrearage in child support. We affirm.

I.

Appellant John Wagley and appellee Polly Evans divorced in 1993. At that time, they agreed to joint custody of their two children (L.C., born December 22, 1982, and I.K., born May 6, 1984), and Wagley was ordered to pay child support.*fn1 In 1998, Evans filed a motion for sole custody and increased child support. At the hearing, both parties acknowledged that their contentious relationship had harmed their children and contributed to a deterioration in L.C.'s mental health. The trial court granted Evans's motion, finding that "the parents are unable to communicate and act jointly for the good of the children." As part of the new custody and visitation order, Evans received sole legal custody, and Wagley was ordered to pay $2,261 per month in child support.

In February 2002, Wagley, then living in Massachusetts, stopped paying child support.

L.C. turned twenty-one in 2003.*fn2 On March 4, 2005, shortly before I.K. became twenty-one, Evans filed a motion seeking an order for Wagley to show cause why he should not be held in contempt of the 1998 child support order. Nine months later, in December 2005, the trial court granted Wagley, who had been representing himself, a continuance to obtain counsel. In April 2006, Wagley's counsel filed another motion to continue based upon Wagley's age and a doctor's note saying that Wagley was "too ill to travel to Washington." The court granted the second continuance, rescheduling the hearing for August 21, 2006. A week before that date, Wagley sought a third continuance, attaching to his motion an unsworn, typewritten doctor's note stating, without elaboration, that Wagley was "ill, suffering from anxiety and stress, and . . . unable to travel for the next four weeks." Evans opposed the continuance, arguing that she had been prejudiced by the delays and that Wagley had not shown a valid reason for further delay. The court denied Wagley's motion, concluding that the matter was ripe for decision, that Evans was suffering prejudice from the repeated delays, and that there was "no admissible evidence before the Court with respect to the state of Mr. Wagley's health."

Wagley did not appear at the contempt hearing, although he was represented by counsel. Evans testified that she had not received any child support payment from Wagley since February 2002. Her counsel introduced in evidence a certified copy of the payment detail from the Court Registry confirming that Wagley had not made a payment since February 2002 and was $85,918 in arrears (thirty-eight months times $2,261 per month). Evans explained that she had faxed Wagley each month, for thirteen months, a reminder that the child support had not been paid and advising him to send it as soon as possible. She further testified that Wagley had never told her he was unable to pay and that he had responded to only one of her reminders, stating in July 2002: "I have already explained more than three times, and you know full well, that my child support obligations have been paid more than three times over. Enough is enough." On cross-examination, Evans added that she rarely talked to Wagley and had no personal knowledge of his health. She acknowledged that a Wagley family trust*fn3 had paid many of the children's educational expenses.

At the conclusion of the hearing, the court ruled that Evans had shown, by clear and convincing evidence, the existence of a court order to pay child support and Wagley's failure to comply with the terms of that order. The court then found that Wagley had not established his inability to comply with the court order, and thus that he had acted in contempt of court by refusing to pay any amount of child support since 2002. In response to a contention by Wagley's counsel that a civil contempt order was not an allowable remedy once the children had reached the age of majority, the court requested briefing on that issue. After reviewing the submissions, the trial court concluded that it had the authority to enter the requested contempt order, held Wagley in contempt, and ordered him confined in prison until he purged himself by paying the $85,918.*fn4

On appeal, Wagley contends that (1) the trial court abused its discretion by refusing to grant the third continuance, (2) the court did not have authority to enter a civil contempt order when children had reached the age of majority (in this case twenty-one),*fn5 (3) Evans failed to prove that he had the ability to pay the purge amount, (4) he was entitled to the defense of laches, and (5) financial contributions for the children's education from his family trust should be credited against the purge amount. We address each argument in turn.

II.

"The grant or denial of a continuance rests within the sound discretion of a trial judge, to whom we accord a wide latitude." Fischer v. Estate of Flax, 816 A.2d 1, 8 (D.C. 2003) (citations omitted). The party seeking the continuance must show "specific and sufficient reasons why [he or she] cannot attend the trial as scheduled or cannot try the case on the date scheduled." Super. Ct. Civ. R. 40-I (d).

The trial court did not abuse its discretion when it refused to grant Wagley a third continuance. Evans's motion for a contempt order had been pending for nearly eighteen months, and Wagley had already sought, and received, two continuances. When seeking the third continuance, Wagley's counsel proffered only an unsworn, typewritten statement purporting to be from Wagley's doctor that referred generally to Wagley's health and stress level. As the trial court noted, Wagley's request was "barren of convincing detail." The reasons given were neither "specific" nor ...


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