Hays v. Hays

• Decision Date: 26 October 1939
• Docket Number: 27211.
• Citation: 22 N.E.2d 971,216 Ind. 62
• Parties: HAYS v. HAYS.
• Court: Indiana Supreme Court

22 N.E.2d 971

216 Ind. 62

HAYS v. HAYS.

No. 27211.

Supreme Court of Indiana

October 26, 1939

Appeal from Jennings Circuit Court; Wm. Fitzgerald Judge.

Noble Hays, of Scottsburg, for appellant.

John M. Wood, of Greensburg, for appellee.

SWAIM, Judge.

This is an appeal from a judgment of the Jennings Circuit Court finding appellant guilty of contempt of court for his failure to comply with an order directing him to pay the sum of $5 per week for the support of the appellant's minor child which order for support had been entered by said court, on January 24, 1938, as a part of the judgment granting to the appellee a divorce from said appellant and awarding to appellee the care and custody of said child.

Said judgment for contempt of court was based on an affidavit filed by appellee showing the original order for payment and the failure of appellant to comply therewith.

The appellant bases this appeal on the alleged error of the court (1) in overruling appellant's verified objection to the jurisdiction of the Hon. William Fitzgerald over said cause of action, a change of venue having theretofore been taken from him in the divorce action between the parties herein (2) in overruling appellant's motion to require the information to be made more specific, (3) in overruling appellant's demurrer to the information, (4) in overruling appellant's verified motion in discharge of the rule to show cause, (5) in hearing evidence without issue being joined on the appellant's verified answer in discharge of the rule to show cause, (6) in overruling appellant's motion for a new trial, and (7) in overruling appellant's verified petition to be permitted to appeal herein as a poor person.

The objection of the appellant to the jurisdiction of the regular presiding judge of the Jennings Circuit Court to hear and try said contempt proceedings on the ground that a change of venue had been taken from said judge in the divorce action because of his alleged bias and prejudice was not well taken. The jurisdiction of the special judge who was chosen to try the divorce action terminated with the entry of the final judgment in that action. State ex rel. v. Davisson, Judge, 1925, 196 Ind. 451, 459, 148 N.E. 401. Many of our cases have held that a court trying a divorce case has a continuing jurisdiction over the children of the litigants during the minority of such children. This does not mean that the particular judge who tries the case, merely by reason of having tried the case, has such continuing jurisdiction over the custody of the children. The order entered by the special judge in the divorce action above mentioned was the order of the court and the violation of that order by the appellant constituted a contempt of the Jennings Circuit Court and not of the special judge who had made the order. Only the regular presiding judge of that court, or some one duly authorized to act for him, could hear the contempt proceedings. Kissel v. Lewis, 1901, 27 Ind.App. 302, 306, 61 N.E. 209.

The second, third, fourth and fifth alleged errors assigned are all based on the erroneous impression of the appellant that he is charged with criminal contempt. Here the appellee by the order of the court in the divorce action was given the custody and control of the child and the appellant was required to pay a stipulated sum each week for its support. The appellant is not charged with having committed some act injurious to the other party which the court has forbidden but only with having failed to make the weekly payments for the benefit of the other party as ordered by the court. The order of the court that he be committed to jail for contempt until he complies with the original order is not punitive but coercive. Perry v. Pernet, 1905, 165 Ind. 67, 70, 74 N.E. 609, 6 Ann.Cas. 533. This constitutes a case of civil contempt and is expressly excepted from the operation of all of the provisions of the statute on criminal contempts. § 3-910, Burns, 1933, § 887 Baldwin's, 1934; Muchliki v. Woefel, 1922, 192 Ind. 62, 135 N.E. 177.

In the case of a civil contempt evidence may be heard and the same strictness in pleading is not required that obtains in cases of criminal contempt. In civil contempt the affidavit or information is sufficient when it shows the order of the court and its violation. Both of these...