Clausen v. Clausen

• Decision Date: 26 July 1957
• Docket Number: No. 37060,37060
• Parties: Luella B. CLAUSEN, Respondent, v. Frank CLAUSEN, Appellant.
• Court: Minnesota Supreme Court

Page 675

84 N.W.2d 675

250 Minn. 293

Luella B. CLAUSEN, Respondent, v. Frank CLAUSEN, Appellant.

No. 37060.

Supreme Court of Minnesota.

July 26, 1957.

Syllabus by the Court

1. Under our statutes a person may not be placed in jail for constructive contempt unless that person has first appeared before the court and been examined.

2. A person may not be found guilty of contempt for failing to make alimony payments where he is unable to make the payments even though such inability is due to a refusal to work.

We are not deciding whether a party who wilfully refuses to comply with an order for the payment of alimony or one who stubbornly, defiantly, and rebelliously renders himself unable to obey the decree by refusing to perform his regular work, or who purposely and wilfully reduces his income with the intent of defying the court and evading alimony obligations, can successfully plead inability to pay as a defense in contempt proceedings as that question is not before us in the instant case.

3. A court may not order that a person make payments on a promissory note and, upon his failure to make such payments, that he be placed in jail for contempt.

Charles W. Kennedy and Bradford & Kennedy, Wadena, for appellant.

Frank L. King and King & Flora, Long Prairie, for respondent.

FRANK T. GALLAGHER, Justice.

Appeal from a judgment of contempt dated August 9, 1956, and from an order of the district court directing the issuance of a warrant of commitment dated August 16, 1956.

An examination of the record reveals that on May 16, 1955, a judgment was entered providing, among other things, that the bonds of matrimony existing between plaintiff, Luella B. Clausen, and defendant, Frank Clausen, be dissolved and that the parties be divorced each from the other, and further, that Frank Clausen pay to Luella Clausen as alimony $150 per month, commencing June 1, 1955.

On July 11, 1955, pursuant to a stipulation between the parties, an amended judgment was entered providing, among other things, that defendant should pay the sum of $100 per month alimony and that he should also pay to the Staples State Bank $100 per month on an indebtedness incurred by defendant to plaintiff in the sum of $4,100, this indebtedness being represented by a promissory note dated June 25, 1955, and payable to the plaintiff. It is also recited in the judgment that the note has been endorsed by the plaintiff to the Staples State Bank and that the payments of $100 shall be made to the bank on the first day of each month until the note and interest thereon are entirely paid.

Apparently the defendant neglected to make the payments to the bank and to his former wife as provided for in the amended judgment as an order was issued on May 16, 1956, ordering him to appear on May 26 to show cause why he should not be adjudged in contempt for his failure to comply with the terms of the amended judgment.

A hearing was then held on the return date of the order to show cause but defendant did not appear. Thereafter an order was issued by the district court stating that, upon reading the affidavit and upon all the files, records, and proceedings therein, the court found the following facts: That the defendant had been personally served with the above-mentioned order to show cause; that he had failed to comply with the terms of the amended judgment; that he had failed to pay alimony for the months of December 1955 through May 1956; and that he had failed to make payments to the Staples State Bank in the amount of approximately $500; also that he is employed as a locomotive engineer and is capable of earning sufficient income to comply with the judgment but that he had wilfully and deliberately absented himself from his employment and thereby reduced his earned income so as to render him incapable of financially complying with the terms of the judgment. The court also found that defendant has wilfully committed constructive contempt of the court and should be found guilty of such constructive contempt. The court then concluded that the defendant be adjudged guilty of constructive contempt and should be punished. The court stayed the sentence and punishment until August 9, 1956, upon the following terms: That before July 1 defendant should pay the sum of $75 to the Staples State Bank, and also $75 to the plaintiff; that payments of like amounts should also be paid on July 15 and on August 1, 1956; and that he should appear before the court on August 9 to be dealt with in such manner as the court might then see fit.

While this order is somewhat confusing, subsequent proceedings indicate that the court meant that defendant could purge himself of the contempt if he made the payments provided for in the order.

On August 9 the court held a further hearing but defendant did not appear. At that time an affidavit was filed from the president of the Staples State Bank which recited that payments on the note were delinquent as of August 2 to the extent of $861.30. The court also took the testimony of Luella B. Clausen. She said that the defendant had not paid her the $75 payments and that the last time he had paid anything was about November 15, 1955. The court also stated for the record that it had taken cognizance of the above-referred-to affidavit of the president of the Staples State Bank.

A judgment was then filed on August 9 but dated August 7. This judgment incorporated the terms and provisions of the order issued pursuant to the hearing which had been held on May 26. Subsequently an order dated August 16, 1956, was filed on August 20. This order provided, among other things, that the defendant had been found guilty of constructive contempt; that the court in its order of May 26 had given the defendant an opportunity to purge himself of this contempt by making the payments provided for therein; that the defendant had failed to do so and that he had not complied in any way with the terms of the order of May 26. The order further provided that the clerk should forthwith issue a warrant to the sheriff of Todd County commanding him to apprehend the defendant and commit him to the county jail until he should make the payments provided for in the judgment, but in no event to exceed six months. The order also stated that the warrant of commitment to be issued should comply in all respects with the provisions of M.S.A. § 588.12. Pursuant to this order a warrant was issued and the defendant was arrested and placed in the Todd County jail

On appeal to this court defendant raises numerous objections under which he contends that the proceedings on and after May 26 were invalid. After considering all such objections, we deem it necessary to discuss only the following three for a determination of this case.

(1) That the defendant was not personally before the court at any stage of the proceeding leading to his commitment to jail and that under M.S.A. c. 588 the court is without jurisdiction to have him placed in jail unless he had personally appeared before the court and been examined by the court;

(2) That a person may not be committed to jail for contempt of court because of his failure to pay alimony where the incapacity to pay is due to the defendant's absenting himself from his employment; and

(3) That in any case a person may not be confined to jail under contempt proceedings for failure to make payments on a note.

1. In regard to the first issue defendant contends that, when he did not appear in response to the order to show cause returnable May 26, 1956, the only action the court could take was to order his arrest or continue the matter and again order him to appear.

On the other hand the plaintiff contends that under § 588.04 the court could commit the defendant to jail upon notice or order to show cause without a previous arrest. Section 588.04 reads as follows:

'In cases of constructive contempt, an affidavit of the facts constituting the contempt shall be presented to the court or officer, who may either issue a warrant of arrest to bring the person charged to answer or, without a previous arrest, upon notice, or upon an order to show cause, which may be served by a sheriff or other officer in the same manner as a summons in an action, may commit him to jail, impose a fine, or both, and make such order thereupon as the case may require.'

Plaintiff contends that this section allows alternative methods of procedure. In other words, she argues that it was within the discretion of the court either to do what it did in the instant case or what the defendant claims it should have done.

The defendant maintains, however, that § 588.04 when read with §§ 588.09, 588.10, and 588.14, clearly requires that the accused must appear personally before the court may have him placed in jail. These statutes read as follows:

§ 588.09. 'When the person arrested has been brought into court, or has appeared, The court or officer shall investigate the charge by examining him and the witnesses for and against him, for which an adjournment may be had from time to time, if necessary.' (Italics supplied.)

§ 588.10. 'Upon the evidence so taken, the court or officer shall determine the guilt or innocence of the person proceeded against and, if he is adjudged guilty of the contempt charged, he shall be punished by a fine of not more than $250, or by imprisonment in the county jail, workhouse, or work farm for not more than six months, or by both. In case of his inability to pay the fine or endure the imprisonment, he may be relieved by the court or officer in such manner and upon such terms as may be just.' (Italics supplied.)

§ 588.14. 'When a warrant of arrest has been returned served, if the person arrested does not appear on the return day, the court or officer may issue another warrant, or may order the recognizance prosecuted, or both. If the recognizance is prosecuted, the measure of damages shall be the amount of the loss or injury sustained by the aggrieved party...