French v. French, 35626

• Decision Date: 02 May 1952
• Docket Number: No. 35626,35626
• Citation: 53 N.W.2d 218,236 Minn. 444
• Parties: FRENCH v. FRENCH.
• Court: Minnesota Supreme Court

Page 218

53 N.W.2d 218

236 Minn. 444

FRENCH v. FRENCH.

No. 35626.

Supreme Court of Minnesota.

May 2, 1952.

Syllabus by the Court.

Since the order adjudging defendant in contempt for failure to make support payments includes matters not responsive to the order to show cause, and there was no appearance by defendant or his counsel, it is erroneous.

A. M. Joyce, South St. Paul, Burton R. Sawyer, Northfield, for appellant.

Grannis & Grannis, South St. Paul, for respondent.

MAGNEY, Justice.

Defendant, Harold French, was adjudged guilty of contempt of court for failure to make certain payments claimed due plaintiff under an order of the court in the divorce action in French v. French, Minn., 53 N.W.2d 215, filed herewith.

The parties among themselves agreed upon certain payments to be made by defendant for the support of the family during the pendency of the divorce action. No formal order granting temporary alimony or support was signed by the court. On March 27, 1951, the court granted defendant a divorce on his amended cross-complaint. The court denied plaintiff alimony, but required defendant to pay her $27 weekly toward the support of the four minor children commencing June 1, 1951. On May 9, 1951, the court made an order supplementing the findings of fact and conclusions of law. This order sets out the temporary arrangement of the parties for payment by defendant of $20 per week to a grocery store for the support of the children and plaintiff. It directs that defendant pay said sums forthwith and continue to make the payments until June 1, when the original decree providing for payments of $27 weekly becomes effective. The order of May 9, 1951, was made part of the findings of fact of the original decree, Nunc pro tunc.

On June 4, 1951, defendant gave notice of appeal from the order of the court denying his motion for amended findings of fact and conclusions of law or for a new trial. On June 8, 1951, plaintiff gave notice of motion for an order adjudging defendant in contempt for failure to obey the order of May 9, 1951. An order to show cause was issued, setting the hearing for June 13, 1951. Thereafter, but before the hearing, a supersedeas bond was executed, served, and filed by defendant. Neither defendant nor his attorney was present at the hearing on the contempt motion, June 13, the attorney having notified attorney for plaintiff that he was ill. Defendant also was ill. Upon the hearing, the court found, by order dated June 19, that defendant was guilty of contempt of court for failure to pay the grocer $20 per week from and after May 9, 1951, and the sum of $27 per week for support from and after June 1, 1950, a total of $141 up to June 18, 1951, and imposed a penalty of 40 days in the county jail. Defendant appealed to this court from the order adjudging him to be in contempt of court and imposing a penalty.

Insofar as the order adjudging defendant in contempt is based upon defendant's failure to make support payments after June 8, 1951, the order is erroneous. The order adjudging a defendant in contempt cannot include matters not responsive to the order to show cause, ...