Davis v. Davis

• Decision Date: 30 October 1942
• Docket Number: 28756.
• Citation: 130 P.2d 355,15 Wn.2d 297
• Court: Washington Supreme Court
• Parties: DAVIS v. DAVIS.

130 P.2d 355

15 Wn.2d 297

DAVIS v. DAVIS.

No. 28756.

Supreme Court of Washington

October 30, 1942

Department 1.

Suit by Blanche E. Davis against Thomas H. Davis for separate maintenance, wherein defendant filed a cross-complaint praying for annulment of marriage or in the alternative for divorce. Upon defendant's failure to comply with order that he pay plaintiff $175 attorney's fee to enable her to resist defendant's appeal from a judgment dismissing without prejudice separate maintenance suit and cross-complaint, plaintiff moved for an order to show cause why defendant should not be punished for contempt of court. From an order that defendant be confined to jail until amount specified in prior order be paid into court, defendant appeals.

Judgment affirmed.

Appeal from Superior Court, King County; William G. Long, judge.

James G. Mulroy, of Seattle, for appellant.

Ralph A. Horr and Tworoger, Rombauer & Franco, all of Seattle, for respondent.

JEFFERS Justice.

This is an appeal by Thomas H. Davis from an order made and entered by the superior court for King county, on January 29, 1942 decreeing that Mr. Davis be confined in the King county jail until an order dated September 25, 1941, be complied with by payment into the registry of the court of the sum of one hundred seventy-five dollars. The order appealed from was entered after the court had made and entered findings of fact to the effect that Davis was guilty of contempt of court, in that he had wilfully refused to make the payment of one hundred seventy-five dollars, although able to do so.

In order that a true picture of the various legal steps heretofore employed by the parties may be presented reference is made to the case of Davis v. Davis, 12 Wash.2d 499, 122 P.2d 497, decided February 19, 1942. To obtain a further picture of the facts leading up to the present proceeding, it appears that after the order had been made by Judge Meakim, and upon the refusal of Mr. Davis to make the payment therein required of him, Mrs. Davis obtained a show cause order, returnable Before Honorable William G Long. Upon the hearing on this show cause order, on September 25, 1941, Mr. Davis was directed to pay to Mrs. Davis, on or Before October 20, 1941, the sum of one hundred seventy-five dollars, attorney's fees, to enable Mrs. Davis to resist defendant's appeal to this court. After the entry of the last mentioned order by Judge Long, Mr. Davis applied to this court for a writ of prohibition. The writ was denied by this court on January 13, 1942.

On January 23, 1942, Mrs. Davis filed a motion for an order to show cause why Mr. Davis should not be punished for contempt of court. This motion is supported by the affidavit of Ralph A. Horr, one of Mrs. Davis's attorneys. On the filing of this motion and affidavit, a show cause order was issued, requiring Mr. Davis to appear January 29, 1942, to show cause why he should not be punished for contempt, for failure to comply with the order of court requiring him to make payment of one hundred seventy-five dollars attorney's fees and suit money to Mrs. Davis, on or Before October 20, 1941.

Thereafter, on January 29, 1942, the matter came on for hearing Before Judge Long, on the show cause order last above referred to. Judge Long made and entered findings of fact, conclusions of law, and a decree. The court found that an order had been made requiring Mr. Davis to make the payment of attorney's fees and suit money; that Mr. Davis had wilfully refused to make such payment, although able to do so. The court ordered Mr. Davis confined in the King county jail until he had complied with the order requiring him to pay the sum of one hundred seventy-five dollars into the registry of the court. It is from this order entered January 29, 1942, that this appeal is taken.

Appellant assigns error in overruling his demurrer to the motion and affidavit to show cause, on the ground that the affidavit upon which the show cause order was issued did not meet the requirements of Rem.Rev.Stat. § 1052, and was insufficient to give the court jurisdiction to punish for contempt; in not holding that the contempt proceeding should have been brought in the name of the state; in holding that the court had jurisdiction, by contempt proceedings, to compel payment of a judgment for attorney's fees and suit money.

Appellant in his brief refers to an affidavit made by Albert M. Franco. As we read the record Before us, the affidavit filed in support of the motion for an order to show cause was signed by Ralph A. Horr.

Rem.Rev.Stat. § 1052, provides: 'In cases other than those mentioned in the preceding section, Before any proceedings can be taken therein, the facts constituting the contempt must be shown by an affidavit presented to the court or judicial officer, and thereupon such court or officer may either make an order upon the person charged to show cause why he should not be arrested to answer, or issue a warrant of arrest to bring such person to answer in the first instance.'

Appellant seems to argue that the affidavit is defective, in that it does not show that the show cause order herein was served upon appellant and a demand made that he comply therewith. Appellant cites State ex rel. Ewing v. Morris, 120 Wash. 146, 207 P. 18, and State ex rel. Dunn v. Plese, 134 Wash. 443, 235 P. 961.

It is true that in the Ewing case, supra, a statement was made in accordance with the contention of appellant. However, in the cited case, we also stated that where the one upon whom the show cause order is to be served was present at the hearing thereon, and was represented by his attorney, notice or knowledge must necessarily be imputed to him.

In the instant case, it appears from a minute entry of the court, made on January 29, 1942, that Thomas H. Davis was sworn and examined, and it also appears from the recitation found in the findings of fact, upon which the judgment of contempt is based, that appellant was represented at the hearing by his counsel, Mr. James G. Mulroy.

We are of the opinion that the affidavit and show cause order in the instant case substantially complied with the statute. The show cause order advised appellant that he was charged with failure to comply with a specific order of the court previously made. Also, the affidavit filed set forth that appellant had failed to comply with a specific order of the court previously made, although able to do so.

We are also of the opinion that it sufficiently appears that appellant had notice of the contents of the show cause order, he having been personally present in court and represented by his attorney at the hearing on such show cause order.

Appellant's first assignment of error cannot be sustained.

Appellant next contends that the record discloses that the purpose of this proceeding is to punish appellant for an alleged consummated contempt of court, and that such a proceeding must be brought in the name of the state, citing In re Harrington's Estate, 163 Wash. 516, 1 P.2d 850, 851. It is true that in the cited case we held that the contempt proceedings involved therein should have been brought in the name of the state. The reason for our decision is evident from the following statement found therein: 'The proceeding being criminal in its nature--the object of the proceeding was punishment--the state is the real prosecutor, and under our statute [Rem.Rev.Stat. § 1054] the proceedings should have been brought in the name of the state.'

In the cited case, the judgment was that Mr. Phipps pay a fine of one hundred dollars and costs, and that he be confined in jail until such fine and costs were paid. It is evident that the contempt proceeding was not in aid of the equity power of the court to enforce its decree.

Beginning with the case of Poland v. Poland, 63 Wash. 597, 116 P. 2, 3, we have expressly recognized a practice which permitted a proceeding to enforce the payment of alimony decrees to be entitled in the original action. In the case cited we stated: 'It has long been the established practice in this state in seeking the enforcement of alimony decrees to entitle the proceeding in the original action, and such practice has been recognized in this court in Holcomb v. Holcomb, 53 Wash. 611, 102 P. 653, and Metler v. Metler, 32 Wash. 494, 73 P. 535. * * * Had the respondent failed to appear and the court desired to move against him for his refusal, it would have been the commencement of a new proceeding, and, as such, brought under the contempt statute. But, so long as the only question Before the court involves the construction and enforcement of its original decree, it was an equitable proceeding, properly brought under the original proceeding and properly entitled therein.'

We further stated: 'This is a proceeding in a court of equity in aid of its original jurisdiction, in which the court is seeking the enforcement of its original decree; and, although the court required the respondent to appear in response to its order or be adjudged in contempt, the nature of the proceeding was not changed from one of equitable to one of criminal cognizance.'

In McGill v. McGill, 67 Wash. 303, 121 P. 469, we stated:

'This is an appeal from an order requiring the defendant to pay delinquent installments of alimony awarded to plaintiff for the support of a minor child, by a decree of divorce, within 10 days, failing which he stand committed to the county jail as for contempt. * * *

'It is urged that the proceeding, being for a contempt, could, under Rem. & Bal. Code, § 1054, be prosecuted only in the name of the state. It is a sufficient answer to say that this is not a proceeding for an independent contempt such as contemplated by the statute. The statutory proceeding is

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