Bahre v. Bahre
Decision Date | 24 October 1967 |
Docket Number | No. 30750,30750 |
Parties | George BAHRE, Appellant, v. Rosemary BAHRE, Appellee. |
Court | Indiana Supreme Court |
Harry M. Stitle, Jr., Albert W. Ewbank, Indianapolis, for appellant.
Sidney A. Horn, Paul Rochford, John J. Rochford, Paul E. Blackwell, Frank W. Morton, Indianapolis, Ivan Pogue, Franklin, for appellee.
This is an appeal from a finding and judgment adjudging appellant to be in contempt for failure to pay attorney fees pursuant to orders previously made by the court.
The judgment appealed from, omitting formal parts thereof, reads as follows, to-wit:
Appellant's Motion For New Trial contained four (4) specifications, reading as follows, to-wit:
(Exhibits omitted by writer of this opinion).
Appellant's Assignment of Error contains two grounds, viz:
A brief resume of the marital and legal entanglement of the parties to this action is necessary to properly evaluate the issues to be here determined. On September 28, 1959, Rosemary Bahre was granted an absolute divorce and was awarded an alimony judgment of $24,400. George Bahre was ordered to support two minor children. On appeal the Appellate Court reversed that judgment insofar as alimony and support were involved. (See Bahre v. Bahre (1962), 133 Ind.App. 567, 181 N.E.2d 639.)
After the cause was certified back to the trial court for retrial on the questions of alimony and support, Rosemary filed three petitions in the trial court--one for attorney fees for services rendered on the appeal, one for support for the minor children, and one for preliminary attorney fees for the retrial of the cause. The trial court had a hearing on the petitions and ordered George to pay, inter alia, attorney fees and expenses relating to the first appeal. That order was appealed to this Court as an interlocutory order. Rosemary filed a motion to dismiss that appeal alleging, inter alia that the order granting attorney fees and expenses related to the first appeal was a final judgment for a fixed sum of money and that no timely motion for a new trial had been filed from which an appeal could be taken. This Court concurred in her contentions and granted her motion to dismiss the appeal. (See Bahre v. Bahre (1964), 245 Ind. 522, 198 N.E.2d 751.)
No question is involved in this appeal as to the retrial on the merits of the award of alimony and support growing out of the original action for divorce, as those issues were determined by the Appellate Court on appeal therefrom. (See Bahre v. Bahre (1965), Ind.App., 211 N.E.2d 627.)
The issues in the case at bar were formed by the petition for citation for contempt for failure to comply with the order of court to pay to the clerk of the Johnson Circuit Court the various sums of money to the various attorneys and by the defendant-appellant's answer thereto alleging that the refusal to discharge a money judgment is not a contempt of court. The petition for citation for contempt, omitting formal parts and signatures, reads as follows:
'Rosemary Bahre, by and through her counsel, Sidney A. Horn, John Rochford, Paul Blackwell and Frank W. Morton, who are petitioners, who first being duly sworn upon their separate oaths, depose and say:
'1. That on or about the 10th day of January, 1963, the said George Bahre, defendant herein, was ordered by this Court to pay on or before February 1, 1963, as follows:
'2. That subsequent to said order the defendant has failed and neglected to comply with said order and that nothing has been paid thereon and that there is now due and owing the total sum of $17,403.50 under said orders to each as follows:
Sidney A. Horn $6,325.00 John Rochford 2,750.00 Paul Blackwell 750.00 Frank W. Morton 7,578.00
'WHEREFORE, petitioners ask the Court that the said George Bahre be cited to show cause, if any he have, why he should not be punished for contempt of Court for failure to comply with the orders of this Court as above outlined, and that he be ordered to pay reasonable additional attorneys fees for the prosecution of this citation.'
The appellant's answer, omitting formal parts and signatures, reads as follows:
'George Bahre, for answer to the Petition For Citation For Failure To Comply with The Order of Court filed herein on August 13, 1964, respectfully shows to the Court:
'1. That on the 10th day of January, 1963, this Court did make an entry after a hearing on three petitions which were:
'(a) Petition for order for payment of expenses, suit money and attorney fees for post trial procedures and appellate review.
'(b) Petition for support of two minor children pendente lite, new trial and for lump sum award for adequate support from September 28, 1959 to date.
'(c) Petition for suit money, legal expenses and attorney fees for preparation and new trial of cause 'which entry read in part as stated as follows:
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...n. 4.5 The order disobeyed by the Jacksons was not the judgment itself but rather an order in aid of execution. Cf. Bahre v. Bahre (1967), 248 Ind. 656, 230 N.E.2d 411 (judgment is enforced by execution not contempt citation); but see Linton v. Linton (1975), 166 Ind.App. 409, 339 N.E.2d 96......
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