Garroutte v. Garroutte

• Decision Date: 03 June 1969
• Docket Number: No. 41900,41900
• Citation: 455 P.2d 306
• Parties: John M. GARROUTTE, Plaintiff in Error, v. Ethel L. Rich GARROUTTE, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 306

455 P.2d 306

John M. GARROUTTE, Plaintiff in Error, v. Ethel L. Rich GARROUTTE, Defendant in Error.

No. 41900.

Supreme Court of Oklahoma.

June 3, 1969.

Syllabus by the Court

One cannot be punished for contempt in failing to comply with a judgment, if, without fault of his own, it has not been within his power to do so since the judgment was rendered.

Appeal from District Court of Kay County; Lester R. Maris, Judge.

Citation for Contempt against defendant for failure to obey order of Court in divorce property settlement. From judgment of guilt and jail sentence defendant appeals. Reversed.

Fred A. Tillman, Bill Heskett, Jack Heskett, Pawhuska and Bartlesville, for plaintiff in error.

Geb & Wideman, Leonard G. Geb, Joseph A. Wideman, Ponca City, for defendant in error.

BERRY, Vice Chief Justice.

This is an appeal from judgment and jail sentence imposed upon plaintiff in error for indirect civil contempt. The sole question is whether failure to comply with a trial court's order for delivery of personal property constitutes a civil contempt, when contemnor's failure to comply does not result from fault upon his own part?

Ethel Garroutte sued plaintiff in error for divorce, alimony and equitable property division. On May 25, 1965, the trial court granted divorce, set over to each the separate property brought into the marital community, and decreed equitable division of jointly acquired property. Among personal property awarded plaintiff were certain named registered horses, which defendant was ordered to return to plaintiff, along with registration papers.

July 25, 1965, during pendency of motion for new trial, plaintiff applied for order requiring payment of temporary support payments previously ordered, vacation of a described tract of land awarded plaintiff, and to require defendant to surrender the horses owned by plaintiff. The trial court granted the order as prayed. On September 28th plaintiff applied for citation for indirect civil contempt by reason of defendant's failure to comply with terms of the divorce decree, particularly including disobedience of order requiring delivery to plaintiff of registration papers on named horses. Citation issued commanding defendant to appear October 1, 1965, and show cause why he should not be punished for contempt by reason of failure to obey the court's order.

October 15, 1965, the citation for indirect contempt was heard and matters supporting the application found to be true. Defendant was found guilty of willful indirect contempt and sentenced to 90 days in jail, sentence to be suspended if defendant purged himself within 10 days by fulfilling terms of original order, otherwise sentence was to be carried out.

Defendant responded to citation by showing compliance with requirements as to release of outstanding judgment and vacation of real property. Response further showed registration papers upon certain horses had not been delivered to plaintiff for the reason for a long period such papers had been, and at the time remained, in possession of a third party in another state so these horses could be raced, all of which was with plaintiff's consent.

At the October 25th hearing the evidence showed defendant had been unable to obtain papers on two horses. These papers were held by defendant's adult son who had not responded to defendant's efforts to communicate. It appeared this son held the papers under claim of a lien for training and feeding. The court, expressing unwillingness to punish defendant, deferred time for imposition of sentence, directed defendant to continue efforts to communicate with his son and seek his agreement to return the registration papers, and thereby relieve defendant of the predicament. The court stated he could not imagine a son who would not cooperate to aid his father, but recognized impossibility of defendant making the son act. Imposition of sentence was deferred until November 5th, at which time the court also was to hear pending motion for new trial in the divorce action.

Upon further hearing November 5, 1965, the court was advised both defendant and his attorney had attempted to communicate with the son. The attorney had learned an attorney in Hastings, Nebraska, had advised against surrendering the registration papers. Communication with the Nebraska attorney disclosed the son was asserting a possessory lien upon the papers because of a claimed training bill due from plaintiff. The court recognized defendant's difficulty and good faith efforts and again deferred action, since there having been no direct communication with the son, to afford the son opportunity to come to defendant's aid.

Further hearing on December 10, 1965, disclosed defendant had communicated with his son by letter, and long distance telephone. Not only had the son verbally disclaimed intention to return the ownership papers, but defendant had received a letter which showed the son's refusal to mail 'those horse papers because of the training bill Ethel owes me.' The court again recognized defendant's good faith attempts to comply with directions and instructions in attempting to secure return of the papers. However, the trial court then overruled motion for new trial and sentenced defendant to 60 days in jail. Upon oral announcement of intent to appeal the trial court fixed bond and the cause was brought to this Court.

By statute, 21 O.S.1961, § 565, contempts of court are divided into two classes. Willful disobedience of an order made by a court in this state not committed in presence of the court is an indirect contempt. Browning v. Ray, Okl., 440 P.2d 721; Seifried v. State ex rel. Bash, 184 Okl. 299, 86 P.2d 1008. The mentioned...