Adair v. Superior Court of State

• Decision Date: 09 July 1934
• Docket Number: Civil 3315
• Citation: 33 P.2d 995,44 Ariz. 139
• Parties: DONALD C. ADAIR, Relator, v. THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA, Respondent
• Court: Arizona Supreme Court

33 P.2d 995

44 Ariz. 139

DONALD C. ADAIR, Relator, v. THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA, Respondent

Civil No. 3315

Supreme Court of Arizona

July 9, 1934

Original proceeding in Certiorari by Donald C. Adair against the Superior Court of Maricopa County and the Honorable Howard C. Speakman, one of the judges of said court. Order of Superior Court adjudging the relator, Adair, guilty of contempt quashed.

Mr. D V. Mulhern and Mr. B. H. Gibbs, for Relator.

Mr Herman Lewkowitz, Mr. J. B. Zaversack and Mr. Renz L Jennings, County Attorney, for Respondent.

OPINION

McALISTER, J.

In July, 1922, the Superior Court of Maricopa County entered an order divorcing Bertha G. and Donald C. Adair and provided in the decree that the plaintiff, the mother, should have the custody of their five year old daughter and that the father should pay her $12.50 a month for the child's support. This decree was modified on three separate occasions thereafter in such a way as to increase to the following amounts the payments the defendant thereafter was required to make for the support of the child, namely: October 16, 1922, $20; December 19, 1927, $25; and October 3, 1932, $35. All of these orders were fully complied with by the defendant.

In the last of these applications for modification, namely, the one acted upon October 3, 1932, the plaintiff had asked for a monthly allowance of $50 for the child's support and $150 for money she had theretofore expended for this purpose. An increase of $10, that is, a monthly allowance of $35 instead of $50, as prayed for, was granted, and the defendant ordered to pay the plaintiff "the sum of $60 on back money expended on said minor" by her, instead of $150 as requested. However, upon the advice of his counsel that the order to pay the additional sum of $60 was made without jurisdiction, the defendant did not pay it and upon his failure to do so the plaintiff procured from the superior court an order directing him to show cause why he should not be punished for contempt. In response to this he answered alleging that the order of October 3, 1932, was not lawful because it was made without jurisdiction, but upon the hearing on January 9, 1933, he was adjudged guilty of contempt and allowed seven days in which to purge himself thereof. Before the expiration of this period he sought and obtained a writ of certiorari directing the superior court to certify to this court a transcript of the record of the proceedings in which he had been adjudged guilty of contempt, and the legality of this action is the matter upon which the validity of the contempt proceeding must rest.

It was based solely upon the failure of defendant to obey the order of the court directing him to pay the $60 which the mother, in addition to the regular monthly allowance, had expended for taking care of the child. It was the view of the defendant that section 2188, Revised Code of 1928, upon which the court relied for authority to make the order, does not confer this power. That section reads as follows:

"§ 2188. Modification of judgment affecting alimony and children. The court may from time to time after the entry of final decree, on petition of either party, amend, revise and alter such portions of the decree as relate to the payment of money for the support and maintenance of the wife or the expenses of the proceedings, as may be just, and amend, change or alter any provision therein respecting the care, custody or maintenance of the children of the parties as the circumstances of the parents and the welfare of the children may require."

It is admitted that under this section the court could upon a proper showing increase at any time the monthly allowance for the support of the child and that the three orders it made doing this were lawful, but the defendant points out that the original decree and the various amendments or modifications of it contain only two provisions falling within the terms of this paragraph and that these are, first, that relating to the custody of the child, and, second, that concerning the payment of a stipulated monthly sum for its support. The order of October 3, 1932, directing him to pay the $60 back money the mother had expended for the benefit of the child was, he argues, entirely outside of either of these provisions, the second as clearly as the first, and in this we think he is correct. It may be true that the $60 was spent for the maintenance of the child and for this reason the order directing its repayment might, literally speaking, come within the language of the statute, yet the order of December 19, 1927, which required him to pay...