In Re the Marriage of:
Belia Jimenez Lorente,
Petitioner,
and
ORDER
Axel Ture Johansson,
File No. DC 218153
a/k/a Axel Johansson,
Respondent.
Linda L. Wold, Esq., 6609 - 59th Avenue North, Crystal, MN 55428, appeared for and on behalf of Petitioner. Respondent appeared pro se by telephone from Sweden.
Based upon the evidence adduced and the complete files, records, and proceedings herein, the Court finds:
2. Respondent was questioned concerning his representing himself in this matter. He expressed the opinion that he could not afford representation. Respondent affirms that he has income in an amount equal to $2242 net per month. This is sufficient income to allow Respondent to have representation in this matter if he so desires.
3. Petitioner did not cause personal service of this motion upon Respondent since his residence in a foreign country makes personal service expensive and since Respondent failure to pay support and attorney's fees in compliance with the existing Court orders has left her without funds beyond what is required for care of the minor children.
4. Although Respondent was not personally served in this matter, he was aware of this hearing and had received Petitioner's moving papers alleging, inter alia, his failure to pay support and his successful resistance to establishing Court-ordered withholding subsequent to his taking up residence in Sweden. Respondent placed the telephone call to the Court and admitted on the record he had possession and knowledge of the motion papers.
5. On February 28, 1996, the Court ordered temporary relief in this matter, ordering Respondent to pay $1863.75 per month in child support and $1500 per month in spousal maintenance. These sums were to be paid commencing March 1, 1996 by income withholding. In addition Respondent was ordered to pay temporary attorney's fees in the amount of $2000, thereby enabling Petitioner to assert her rights in this action.
6. The order for temporary relief was reviewed at a hearing on May 8, 1996. The order for modified relief from that hearing was issued on June 4, 1996.; the Court adjusted temporary relief consistent with Respondent's reduction in income as a consequence of his return to Sweden. Based on his income of $2242 net per month, Respondent was ordered to pay Child support in the amount of $785 per month and he was relieved of his obligation to pay temporary maintenance.
7. Respondent represents that the expense of establishing himself again in Sweden has prevented him from making payment of child support. However, in spite of the fact that Respondent has had consistent income in the amount of $2242 per month, Respondent has not paid a single cent since May 1, 1996 and his residence in Sweden. Respondent's income of $2242 net per month is sufficient income to enable him to make the child support payments.
8. In addition Respondent has represented on the record that his family has assisted him financially as he has reestablished himself in Sweden. Respondent should have paid child support voluntarily and directly or he could have allowed or assisted in establishing income withholding.
9. Sufficient income is prima facie evidence of contempt. The support amount ordered was set based on Respondent's reduced income. Respondent cannot escape either his moral or his legal obligation to support his children by leaving the jurisdiction. The fact that Respondent has paid nothing is evidence of wilful failure not to comply with the Court's order.
10. Willful failure to pay constitutes criminal contempt, punishable as a misdemeanor. 9588.20(8) Respondent has neither alleged nor proven that he has made a good faith effort to comply with the prior orders of this Court.
11. Respondent is in constructive civil contempt of this Court's order for his failure to pay child support. Incarceration is reasonably necessary to induce compliance with the existing orders of the Court and with future orders. The Court will impose a sentence of 90 days in the Hennepin County Workhouse and the sentence will be stayed to allow Respondent an opportunity to purge the contempt.
12. A warrant will issue for Respondent's arrest; Respondent will be brought before the court and heard on the issue of his wilful non-compliance with prior court orders and his performance or excusable non-performance of the purge condition established herein. The Court will order immediate incarceration if it finds that Respondent failure to comply with the purge conditions was a wilful failure. Respondent is advised that it will be his burden of proof that he is unable to satisfy the purging conditions.
13. Respondent admitted on the record that pursuant to court order his arrearages were in excess of $7000. He expresses the opinion, however, that this figure lacked moral- authenticity. The Court has merely ordered that Respondent support his children pursuant to the guidelines established by the states legislature; to question the justification for this award without submitting proof of inability to pay is to question the rightful authority of the Court.
14. As well as being in constructive civil contempt of this Court, Respondent is in direct criminal contempt of this Court. He has made it clear that he questions the authority of this Court to order him to support his children. He has assumed an attitude that offends the dignity of the Court. This Court has allowed Respondent the opportunity to appear by telephone from his home country. Respondent has used his foreign residence as an impediment to this Court's authority to provide for minor children within its jurisdiction.
15. Respondent expressed his contempt as follows: When questioned concerning his failure to pay support, respondent stated, "My company -- I mean we live in Sweden, and my company has to fulfill the laws of Sweden as I have to, because I'm a resident of Sweden now. Whether or not this is a lie, this a total evasion of legal and moral reality. Certainly nothing in the laws of Sweden mandates Respondent's failure to support his children.
16. Disregarding at this point whether or not Respondent has lied to this Court, he has chosen to represent himself and has then attempted to use this to his advantage by interpreting the Rule of Civil Procedure, particularly those involving discovery, in light of his own wilful and self-serving misunderstanding and not in light of the purposes of discovery.
17. Respondent' s failure to comply with discovery has impeded the necessary and regular progress of this case to trial. This case is set for trial and Petitioner's attorney has not received the minimal cooperation necessary to establish her client' s rights.
18. When questioned concerning his failure to update discovery, Respondent stated, "I have cooperated in everything that is possible for me." Respondent misrepresented his cooperation to the Court. When questioned concerning various items of discovery, he provided various explanations inconsistent with his claim of cooperation. It ultimately was established that he had provided nothing since his return to Sweden.
19. When asked for updated information concerning bank accounts, he reiterated his outrage at having been excluded from the house and Petitioner's opportunity to do informal discovery of the parties financial status and an alleged disorder and loss of documentation at that time. Whether Petitioner's actions are defensible or not, they form no justification for Respondent failing to produce relevant documents.
20. At one point Respondent attempted to justify his failure to produce documentation with his reluctance to impose upon his mother. Respondent cannot seriously believe that he is justified in declining to produce requested and relevant information on this basis.
21. When questioned concerning his failure to provide updated information for approximately a year on certain Swedish accounts, Respondent stated that he only receives statement on an annual basis. Excepting this representation as literally true, Respondent has not asserted that information concerning these accounts is not available to him upon request.
22. Respondent has evaded and avoided discovery by his return to Sweden and by failure to account for marital assets which are located there. Clearly Respondent has not cooperated in discovery and has been successful in obstructing the process.
23. Before finding Respondent in direct criminal contempt, the Court
afforded Respondent an opportunity to demonstrate an intention to cooperate
and warned Respondent of the potential contempt. Respondent seized upon
this as an opportunity to argue with the Court. Respondent stated:
While Respondent's declaration of the priority he gives his children
is one which the Court wholeheartedly supports, Respondent clearly does
not live up to his proclamation as he has wilfully failed to support his
children.
24. The Court has allowed Respondent to appear by telephone in spite of the inconvenience and inefficiency this courtesy imposes upon the Court. Respondent has use this consideration as an opportunity to flaunt his disrespect. All future appearance should be in person.
25. As a result of Respondent's having been allowed to appear by telephone, the Court was placed in a position of functioning without the ability to bring stability to the situation by calling for a deputy to monitor the hearing and to be prepared to take Respondent into custody. Respondent was informed that he was found in contempt.
26. The Court will set purge conditions herein.
27. Petitioner requires funds for the support of the minor children. The Volvo automobile which is currently in her possession is too expensive for her to maintain. Petitioner should be granted permission to sell the parties, automobile for the support of the parties minor children. The proceeds from this sale will be viewed as a pre-decree withdrawal from Respondent' s portion of the marital estate and will reduce any arrearages owed by Respondent at the time of trial. Should Respondent be current in his support, the disposition of these fund will be considered de novo.
28. By court order dated May 14, 1996, the parties were ordered to sign all releases when requested to do so by Greg Sicheneder, the children's therapist, in order that he prepare a report. Respondent states that he was never requested to sign releases and Petitioner has presented no evidence to the contrary. Petitioner has requested that her counsel be given access to the information the releases that would have provided a basis for Mr. Sicheneder's report. The Court declined to grant this relief at this time and denies this motion without prejudice.
IT IS HEREBY ORDERED:
1. As a result of his direct criminal contempt, Respondent is
sentenced to 10 days in the Hennepin County Adult Correction Facility.
Let a bench warrant issue for the arrest and
apprehension of Respondent. The clerk of this court shall mail a copy
of this order to Respondent at c/o Rudolf Jonassons Vag 17#7, S-24136,
Eslov, Sweden.
2. Respondent is sentenced to 90 days at the Hennepin County Adult Correctional Facility; the imposition of that sentence is stayed to allow Respondent an opportunity to purge his constructive civil contempt for non-payment of child support. Respondent may purge the contempt by performance of the following:
a) Immediate payment of $2000 toward arrears and commencing timely regular
direct payments of current child support to Petitioner in the amount of
$785 per month;
b) By full compliance with all outstanding discovery requests, including
but not limited to updating previously provided information; and
c) Payment of $5250 to Petitioner's attorney; this sum represent the
$4500 previously ordered and $750 incurred by Petitioner to bring this
motion.
3. At such time as Respondent is taken into custody for his direct criminal contempt, he will be brought before this Court for a hearing pursuant to Mahady v. Mahady, 448 N.W. 888 (Minn.App. 1989). At that time Respondent will be heard on the issue of his compliance with the purge conditions regarding his constructive civil contempt, as set forth herein.
4. Any information not provided pursuant to discovery requests will be view in the light least favorable to the non-complying party.
5. Petitioner is awarded all right, title and interest in the parties' 1992 Volvo, free of any claim by Respondent. This order will act to transfer title to her.
6 All motions of the parties not granted herein are denied.
7. If Respondent fails to appear for trial in this matter on February 20, 1997, this matter will be heard by default.
February 3, 1997
BY THE COURT:
David M. Duffy
Judge of District Court
Family Court Division