Baker v. Baker, 7433

• Decision Date: 22 November 1950
• Docket Number: No. 7433,7433
• Citation: 119 Utah 37,224 P.2d 192
• Parties: BAKER, v. BAKER.
• Court: Utah Supreme Court

Page 192

224 P.2d 192

119 Utah 37

BAKER, v. BAKER.

No. 7433.

Supreme Court of Utah.

Nov. 22, 1950.

Wilson & Wilson, Ogden, for appellant.

Dobbs & Dobbs, Ogden, for respondent.

LATIMER, Justice.

This is an appeal brought by the plaintiff from a decree entered September 27, 1949, finding plaintiff in contempt of court, modifying a decree of divorce and making other orders favorable to the defendant. The parties are referred to as they appeared in the court below.

On June 30, 1948, the district court in the original divorce action granted plaintiff a divorce and awarded her the care and custody of the two minor children, subject to defendant's right of visitation at reasonable times and places. In dividing the property, the court awarded plaintiff certain real property located in Ogden, Utah, and defendant real property located in Salt Lake City, Utah. In addition, the court found that the defendant was capable of earning approximately $300 per month, and that he had no other dependents. He was, therefore, ordered to pay the sum of $50 per month toward the support and maintenance of each of the two minor children. He was also directed to pay $250 to plaintiff for attorneys fees and $56.20 for court costs.

On August 4, 1948, plaintiff filed an affidavit in which she requested an order to show cause why defendant should not be punished for failure to comply with the judgment. She alleged that the defendant was in contempt of court in that he had failed to pay the attorneys fees and costs assessed against him and that he had paid only $50 support money to the minor children of the parties during the month of July, 1948, and was, therefore, $50 in arrears in the payments. The order to show cause was served upon the defendant on August 16, 1948, and filed on August 18, 1948. On September 8, 1948, defendant was ordered to pay $150 monthly until all payments were brought up to a current basis.

On or about October 18, 1948, defendant notified plaintiff that he desired to take the children to see their grandmother on the following day, it being her birthday, and at that time plaintiff refused to have them available. In the latter part of November, defendant sought to take the children to see his mother, who was then very ill. Plaintiff insisted that the visit be limited to one-half hour. Upon defendant's demand that he be allowed to take the children for a longer period, a dispute arose between the parties during the course of which defendant told plaintiff that he would make no further contributions toward the support of the children unless or until he was given opportunities to see them and visit them without the plaintiff or other relatives being present. The following day, when defendant went to plaintiff's home for the children, he found no one at home.

In the fall of 1948, plaintiff sold the property awarded to her and purchased a home in Nyssa, Oregon, where her children by a former marriage and other relatives and friends resided. On November 25, 1948, she left Ogden with the two children and went to that town where she established her residence and made her home. Defendant knew nothing about her departure and did not learn of his children's whereabouts until the following January.

On February 5, 1949, a second affidavit and order to show cause were served upon the defendant. In this affidavit, plaintiff alleged that the defendant was in arrears in his payments of support and maintenance money in the amount of $300.00. On February 28, 1949, defendant filed a return to the order to show cause, alleging: That by the terms of the divorce decree the award of $50.00 per month towards the support of each of the children was made subject to the right of visitation by the defendant; that the actions of plaintiff in depriving him of this right were in contempt of the court decree; and, that by preventing him from seeing the children and by taking them to Oregon plaintiff had lost her right to require compliance with the decree. He further alleged a change in financial circumstances due to a fire which had destroyed the improvements on the Salt Lake City property and requested that the amount of support and maintenance payments be reduced.

The order to show cause came on for hearing on the 22nd day of July, 1949, and the lower court found the defendant was in contempt of court for his failure to pay the $250 attorneys fee and the $56.20 court costs assessed against him in the original decree, but allowed defendant to purge himself of this contempt by paying these amounts within fifteen days, which he did. The court further found that the plaintiff was in contempt of court because of her actions in depriving defendant of his right to visit the children both before she left Ogden and by taking them out of the state. Because of plaintiff's contempt and the change in circumstances the court modified the original divorce decree and ordered that the defendant's contributions to the support and maintenance of the children be reduced to $30 per month for each child; that the plaintiff be required to bring the children to the state of Utah at least three times a year; that defendant be allowed to visit the children in Oregon once a month; and that he be permitted to visit them out of the presence of the plaintiff and other relatives. The court further ordered that the reduction in the payments revert back to and be made effective as of March, 1949, the time at which defendant filed his return to the order to show cause, and that plaintiff be deprived of the right to enforce payment of the $350 due for the support of the children from November 15, 1948, to February 28, 1949.

On this appeal plaintiff has assigned eight points for argument, which we have grouped into five contentions for the purpose of this opinion. She contends that the court erred in (1) finding plaintiff in contempt of court; (2) imposing the $350 penalty against her for contempt; (3) modifying the original decree of divorce by decreasing the maintenance and support payments; (4) refusing to modify the decree so as to give her the express right to keep the children in Oregon; and (5) refusing to allow certain evidence to be admitted regarding defendant's unfitness to be alone with the children. We discuss these assignments in the order stated.

There is ample evidence to sustain the court's findings of contempt on the part of the plaintiff, particularly with respect to depriving defendant of his right of visitation prior to the time she departed from this state. On at least two occasions defendant's efforts to visit with the children were thwarted by plaintiff's actions. In October, 1948, she refused to allow the children to go with defendant to visit their grandmother on her birthday. About a month later, when he requested that she allow him to take the children to visit their grandmother who was then very ill, she refused because he would not promise to return the children in one-half hour. The evidence further indicates that on other occasions she refused to let him take the children or visit with them anywhere other than in her home or in the presence of herself or other relatives, though the divorce decree imposed no such restrictions.

While the court further found that plaintiff was in contempt of court because she removed the children from the state of Utah, we need no pass on that question. Taking the children from this jurisdiction is of importance in connection with defendant's change in circumstances which will be discussed later, but in view of plaintiff's earlier refusal to permit a fair visit by defendant a second finding of contempt is unimportant.

This brings us to a consideration of the second contention. As a consequence of plaintiff's contempt, the lower court concluded that a reasonable punishment would be to deprive her of the right to receive all payments which had accrued between November 10, 1948 and February 28, 1949. The issue thus becomes whether or not the plaintiff, having been found in contempt of the court's decree, may be denied the use of the court's processes to enforce payment of past due installments.

It is a general rule that a party who is in contempt will not be heard by the court when he wishes to make a motion or grant a favor, and if a party files a pleading while in contempt, it will be stricken from the file on motion. See Bradshaw v. Bradshaw, Tennessee, 1939, 23 Tenn.App. 359, 133 S.W.2d 617. In Cole v. Cole, 142 Ill. 19, 31 N.E. 109, 111, 19 L.R.A. 811, where a former husband who was in arrears in his payments for alimony petitioned the court for modification of the decree in order to have the alimony payments reduced, the court denied his petition, saying: 'He does not come into court with clean hands, and will not be permitted to ask relief from a decree of which he is in contempt. Before he should be permitted to be heard, he should be required to comply with the order of the court up to the time of his application.'

The Supreme Court of California, in the case of Weeks v. Superior Court of California, 187 Cal. 620, 203 P. 93, 94, refused to grant a writ of mandate requested by a party who was in contempt of court. There, the original interlocutory divorce decree granted custody of the minor children of the parties to the husband. The wife, however, took the children from the jurisdiction of the court and remained outside its jurisdiction. When one year had expired, she petitioned the court for a final decree of divorce, filing her petition through an attorney. The court refused to grant the petition and she sought a writ of mandate to compel action by the court. The Supreme Court said: '* * * the petitioner has treated the order of the court with contempt and removed herself and the minor from the jurisdiction so that it cannot be enforced. She should not be allowed to make application for final decree of divorce until she has submitted to the lawful order of the superior court in...