Ex Parte Sedillo.

• Decision Date: 07 May 1929
• Docket Number: No. 3382.,3382.
• Citation: 278 P. 202,34 N.M. 98
• Parties: Ex parte SEDILLO.
• Court: New Mexico Supreme Court

34 N.M. 98

278 P. 202

Ex parte SEDILLO.

No. 3382.

Supreme Court of New Mexico.

May 7, 1929.

Syllabus by the Court.

While permanent separation is an indispensable element of a cause of action under Code 1915, § 2774, for disposition of children, a father adjudged in contempt for failure to pay monthly sums decreed for support of children will not be discharged on habeas corpus on the ground that court had no jurisdiction to render the decree, where it appears from the record that both parties and court regarded the separation as permanent, though not expressly alleged in the complaint.

Code 1915, § 2774, giving a cause of action to spouses permanently separated for disposition of children, independent of divorce action, creates a “civil action” rather than a special proceeding, and adds to equitable jurisdiction of district courts.

Code 1915, § 2190, though giving execution for money decrees in equity, does not abrogate equity power to enforce by attachment as for contempt its decree for monthly payments for support of children.

Present ability to pay arrears of monthly sums allowed for support of children is essential to validity of a contempt sentence to continue until payment, and, where record shows that such sentence was imposed in absence of ability to pay, the sentence must be held for naught on habeas corpus.

Original habeas corpus by Filimon Sedillo to test the legality of petitioner's restraint by the sheriff of Socorro county. Petitioner discharged.

Equity has power to enforce by attachment as for contempt its decree for monthly payments for support of children. Code 1915, §§ 2190, 2780.

William J. Eaton, of Socorro, and Roberts & Brice, of Santa Fé, for petitioner.

Charles H. Fowler, of Socorro, for respondent.

WATSON, J.

Upon the petition of Filimon Sedillo a writ of habeas corpus issued out of this court to test the legality of petitioner's restraint by the sheriff of Socorro county, under an order of the district court committing him for contempt for failure to comply with the terms of a decree of the court requiring him to pay $50 monthly for the support of his children.

The record before us consists of: (1) The complaint in a cause in Socorro county wherein petitioner's wife was plaintiff, and wherein she charged that petitioner had abandoned her and her two children on March 5, 1927, about three months prior to the filing of the complaint, since which time she and the petitioner had lived separate and apart, and had not cohabited as husband and wife, and since which time petitioner had wholly failed to support the wife and children, failed to allege that petitioner had any property or means, alleged that he was able-bodied, employed at $20 per week, and had small expenses, and prayed that she be awarded the care, custody, and control of the children, and that petitioner be required to furnish adequate support for said children; (2) petitioner's answer denying the allegations of the complaint, and his cross-complaint charging the wife with abandonment on said March 5, 1927, and praying for a divorce and the custody of the children; (3) an answer to the cross-complaint wherein it is charged that, while the plaintiff did, on March 5, 1927, leave the marital residence for that of her parents, she was justified in doing so because of petitioner's failure to support her and the children; (4) the final decree, finding that the allegations of the complaint had been substantially proven and that the plaintiff was justified in leaving the marital abode, dismissing the cross-complaint, and awarding to plaintiff $200 suit money, the custody of the children and $50 per month for their support; (5) the petition of the plaintiff praying citation to petitioner for contempt, supported by plaintiff's affidavit that $600 had accrued under said decree and that no part thereof had been paid, that petitioner had wholly failed, neglected, and refused to make any of said payments, and had not offered or attempted to comply with the decree, that ever since the entry of the decree he had been well able to meet the payments as they became due, that he had been employed and receiving good wages, and that he was then so employed, and that he had “wantonly and flagrantly failed to obey said orders of the court and has (had) brazenly flouted the same”; (6) petitioner's answer to the order to show cause, admitting that he had made no payments, but attempting to deny that he had been able to make such payments, alleging that in the quest of work, to enable him to earn better wages, and to comply with the decree, he had borrowed money from his father and gone to Los Angeles, where, after a short time, he had fallen sick and been compelled to call upon his father for money to enable him to return home, failing to set forth what sums, if any, he had earned during the period in question, and denying, generally, that he had been employed and receiving good wages, or that he was then so employed; (7) an order reciting that the court had examined the petition and the answer to the order to show cause, and had heard the evidence adduced, finding “that the defendant, Filimon Sedillo, has made no payments under said decree or as therein commanded, that he is in contempt of court for his failure to obey said decree, and that his contempt herein is wanton”; and ordering “that the defendant, Filimon Sedillo, be committed to the county jail of Socorro County, New Mexico, until he purges himself of said contempt by complying with said decree, or until the further order of the court. The filing with the clerk of a good and sufficient bond for the use of plaintiff, in the penal sum of $1,000.00 with sureties to be approved by the clerk, conditioned that defendant will pay the plaintiff the sums due under said decree within thirty days from the date of such bond and that he will promptly pay the six monthly payments next becoming due under said decree and as they become due respectively, shall also be deemed a purging of said contempt.”

The foregoing documents are set up as exhibits to the petition herein. They are also referred to in the sheriff's return to the writ. The return further shows that on the citation and the return full hearing was had and evidence adduced by the parties.

Petitioner's principal contentions are (1) that the original decree is void for lack of jurisdiction; (2) that it is not such a decree as may be enforced by attachment as for contempt; (3) that the order of commitment is itself void. These contentions will be considered in order.

[1] 1. The original decree is said to have been void, for the reason that a permanent separation of the spouses is a jurisdictional requisite in a suit under Code 1915, § 2774, which provides: “Whenever the husband and wife shall have permanently separated and no longer live or cohabit together, as husband and wife, either may institute suit in the district court for * * * the disposition of the children, without asking for or obtaining in said suit a dissolution of the bonds of matrimony, * * *” and that the complaint fails to allege any such permanent separation, and that such failure is not cured by the allegation of any other pleading or by any finding.

The proposition that a permanent separation is an essential fact is not questioned. We cannot doubt, however, that the separation in this case was deemed permanent both by the parties and by the court. Petitioner claimed that it was an unjustified act of abandonment and demanded a divorce because of it. The wife claimed that her departure and remaining away from the marital abode was rendered necessary by petitioner's failure to support herself and the children, and relied upon it as an abandonment by petitioner. It may well be that, if we were testing the present complaint on demurrer, as in the cases petitioner cites, we might find it insufficient. But in this collateral proceeding we must consider the issue of permanent separation to have been litigated and decided.

Petitioner advances the idea that a separation, to support an action for custody of children, must be mutually acquiesced in. “Otherwise,” he says, “a wife could leave her husband today and tomorrow could seek separate maintenance and division of property.” But, if the rule were as petitioner suggests, a husband, by refusing to acquiesce, could forever block any attempt of the wife for separate maintenance, division of property, or custody of children. At first impression it would seem that it is not a matter of mutual acquiescence, but that the cause of action should consist in a showing that the complaining party is found justifiably living apart from the spouse, with no intention or prospect of resuming the marital relation. Petitioner has not pressed the matter sufficiently, however, to put us to a decision. In the present case, while there was apparently no mutual acquiescence in the act of separation, there is mutual acquiescence in the fact.

Petitioner's first contention will therefore be overruled.

[2] 2. As petitioner reads Code 1915, § 2778 express power is given...