Bork v. Richardson, 62775
| Decision Date | 19 March 1980 |
| Docket Number | No. 62775,62775 |
| Citation | 289 N.W.2d 622 |
| Parties | Walter E. BORK, Jr., Plaintiff, v. The Honorable R. K. RICHARDSON, Judge of the Second Judicial District of Iowa, Defendant. |
| Court | Iowa Supreme Court |
Arthur E. Ryman, Jr., of Boone County Legal Aid, for plaintiff.
Thomas J. Miller, Atty. Gen., and Robert E. Keith, Asst. Atty. Gen., for defendant.
Considered by REYNOLDSON, C. J., and REES, HARRIS, McGIVERIN, and LARSON, JJ.
Plaintiff in this certiorari action asserts the respondent judge acted illegally in finding him in contempt of court for failure to pay amounts required to be paid under a temporary support order. He alleges the trial court could not, after the dissolution, action was dismissed pursuant to Iowa R.Civ.P. 215.1, find him in contempt for failure to make payments during the pendency of the action. We conclude that the court had authority to enter the order and therefore annul the writ.
Cynthia R. Bork filed a petition for dissolution of marriage in 1974. Respondent denied paternity and the existence of a marital relationship. Pursuant to a local rule, temporary support in the amount of $150 per month and $100 in attorney's fees were awarded without hearing. Mr. Bork then petitioned for a hearing, but before it was held he stipulated to a $115 monthly support payment. The hearing on temporary support was therefore cancelled. A November 4, 1974, docket entry indicates that the court was aware of the existence of the stipulation and that it was "to be presented to (the) Court for approval." However, there is no later entry to indicate that the trial court ever approved the stipulation or rescinded its earlier order. The petition was dismissed by operation of law on January 1, 1977. Cynthia's attempt to have the dismissal set aside was denied as untimely.
On July 6, 1978, Cynthia filed an application with the court to find Walter in contempt for failure to have made the support payments. There is no explanation in the record for the long delay in enforcement of the temporary award; however, this issue is not presented on appeal. Walter responded to the application with a petition to vacate the temporary order. Following hearing, the trial court found Walter in contempt of court and sentenced him to serve thirty days in jail. However, the order allowed Walter "the right to purge himself of this contempt by the payment of the $150.00 as ordered by the Court in the (temporary) support order for the months of September, October, and November of this (i. e., 1978) year . . . ." Walter filed this action alleging ten bases of illegality in the trial court's actions. By stipulation of the parties, agreed to by this court, only one such basis is currently presented: Are temporary support orders enforceable after the dismissal of a dissolution action under rule 215.1 for amounts owed prior to dismissal?
Other jurisdictions are split on the effect of the termination of underlying proceedings upon the enforceability of pendente lite allowances. Several allow enforcement as to amounts accrued during the pendency of the dissolution proceeding, even after a dismissal or a judgment in favor of the party against whom the order is directed. See, e. g., Douglas v. Superior Court, 143 Cal.App.2d 17, 18-19, 299 P.2d 285, 286 (1956) cited with approval in Sarracino v. Superior Court, 13 Cal.3d 1, 9, 529 P.2d 53, 59, 118 Cal.Rptr. 21, 26 (1974). Others follow the rule that there can be no recovery following such a termination. See, e. g., Brunell v. Brunell, 494 S.W.2d 621, 623 (Tex.Civ.App.1973).
This court has never addressed the precise question presented in this case. However, in Britven v. Britven, 259 Iowa 650, 659, 145 N.W.2d 450, 456 (1966), we recognized that temporary allowances are not necessarily merged in or terminated by a final judgment. We said:
Without passing upon the terminability of unpaid alimony awarded pendente lite (by the entering of a divorce decree,) we do elect to accept the holding that accrued installments of temporary alimony previously allowed in a divorce action may be saved by a judgment for the total sum then owing as a part of a final decree of divorce.
The plaintiff argues that if the accrued installments under a temporary support order are not preserved in the final decree there is "no enforceable residue" which will survive the decree.
Each of the litigants points to a different provision of our dissolution statute which, it is argued, is dispositive of this case. Section 598.14 provides:
If the order is not . . . modified it shall continue in force and effect until the action is dismissed or a decree is entered dissolving the marriage.
Walter argues that the negative implication of this section is that such orders are without force or effect after final disposition. He focuses on the word "effect" and argues that to allow a temporary support order to be enforced, after dismissal, would give it "effect" after "the action is dismissed," in violation of this provision. We reject Walter's argument because, despite the canon of statutory construction that "effect must be given, if possible, to every word, clause and sentence of a statute," 2A A. Sutherland, Statutes and Statutory Construction § 46.06 (4th ed. 1973) (quoting State v Bartley, 39 Neb. 353, 358, 58 N.W. 172, 174 (1894), we do not believe the legislature intended such a literal interpretation of the phrase "force and effect" here. See Sutherland, supra, § 46.07. These yoked words, or their equivalents, are legal terms which occur frequently in statutory provisions and in the "legalese" of our profession. (For example, the term is used in each of the two code provisions quoted above.) This militates strongly against construing each word separately so as to give it independent effect. The "force and effect" language of this section simply means that no new obligations will accrue under the temporary order after dismissal or decree; it does not proscribe the collection of such amounts already accrued.
Cynthia's argument, on the other hand, is based upon section 598.22, which provides:
All orders or judgments providing for temporary or permanent support payments . . . shall have the same force...
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...reach the opposite result." (Footnotes omitted) E.g., Washington v. Washington, 163 Cal.App.2d 129, 329 P.2d 115 (1958); Bork v. Richardson, 289 N.W.2d 622 (Iowa 1980); Button v. Button, 222 A.2d 245 (Me.1966); Mazer v. Mazer, 276 A.D. 733, 97 N.Y.S.2d 59 (1950); Ex parte Davis, 597 S.W.2d ......
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...reach the opposite result. (footnotes omitted) E.g., Washington v. Washington, 163 Cal.App.2d 129, 329 P.2d. 115 (1958); Bork v. Richardson, 289 N.W.2d 622 (Iowa 1980); Button v. Button, 222 A.2d 245 (Me.1966); Mazer v. Mazer, 276 A.D. 733, 97 N.Y.S.2d 59 (1950); Ex parte Davis, 597 S.W.2d ......
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...recently refused to nullify a judgment for temporary support ordered prior to the dismissal of a dissolution action. Bork v. Richardson, 289 N.W.2d 622, 625 (Iowa 1980). We held that the remedy of contempt for failure to pay the support was preserved. The rationale for this determination wa......
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