Hillyard v. District Court of Cache County

• Decision Date: 16 September 1926
• Docket Number: 4439
• Citation: 28 Utah 220,249 P. 806
• Court: Utah Supreme Court
• Parties: HILLYARD v. DISTRICT COURT OF CACHE COUNTY et al

249 P. 806

28 Utah 220

HILLYARD v. DISTRICT COURT OF CACHE COUNTY et al

No. 4439

Supreme Court of Utah

September 16, 1926

Rehearing Denied October 4, 1926.

Original proceeding in certiorari by George A. Hillyard against the District Court of Cache County, Hon. M. C. Harris, Judge, and another, to review an order of the court committing petitioner to jail.

ORDER ANNULLED.

Young &amp Bullen, of Logan, for plaintiff.

George C. Heinrich, of Logan, for defendants.

GIDEON C. J. THURMAN and FRICK, JJ., STRAUP, J., concurring. CHERRY J., dissents.

OPINION

GIDEON, C. J.

On November 27, 1923, the district court of Cache County made and entered its findings of fact, conclusions of law, and decree of divorce in favor of Harriet Hillyard and against petitioner here, George A. Hillyard, awarding to Mrs. Hillyard a decree dissolving the bonds of matrimony between herself and petitioner. In that decree the petitioner was required to pay and discharge a certain real estate mortgage in the sum of $ 700 on real property awarded by the decree to Harriet Hillyard. The petitioner was also directed to pay $ 20 per month permanent alimony, to pay an attorney's fee of $ 50, and other items mentioned in the decree. Thereafter, on December 23, 1924, Harriet Hillyard filed an affidavit in said cause, and in that affidavit it was recited that petitioner had neglected to pay any of the amounts or items in the decree of divorce directed to be paid by him. In the affidavit it was also stated that petitioner had had due and legal notice of the decree of divorce. Mrs. Hillyard asked for an order requiring the petitioner to show cause before the court why he had not complied with the orders contained in the decree of divorce. The court issued its order directing petitioner to show cause on February 14, 1925, why he had not made the payments provided for in the decree of divorce. A copy of that order was served upon petitioner, and on the day mentioned therein he appeared in court with counsel. A continuance was had, and at a later date a hearing was had. At this hearing both plaintiff and defendant in the divorce action appeared and testified.

On March 28, 1925, the court made its order directing George A. Hillyard to pay to his former wife the sum of $ 100 and that he be remanded to the custody of the sheriff of Cache county and committed to jail until such payment was made. On May 4, 1926, he filed with the clerk of this court an affidavit and sought a writ of certiorari to review the order of the court committing him to jail. In the affidavit it is claimed that the order is void and that the court was without jurisdiction and had exceeded its jurisdiction and that its jurisdiction was not regularly pursued in making the order, upon the following grounds: (a) That upon the hearing on the order to show cause the court failed to make any findings of fact or conclusions of law, failed to find that any alimony was due under the decree of divorce, and did not find that petitioner had failed to pay all alimony due, and that the court did not find that petitioner had failed to pay the mortgage upon the property awarded to the wife or had failed to make any of the other payments specified in the decree of divorce; (b) that the court failed to find that petitioner was able to make the payments specified in the decree and failed to find that the petitioner was in contempt of court; (c) that the order of March 28, 1925, was made in the absence of petitioner and while he was absent from the state. It is stated in the affidavit that the time for appeal from the said order has long since expired, and that petitioner has no speedy or adequate remedy at law or in equity; that the court will cause the sheriff of Cache county to arrest petitioner upon such order, and that petitioner will be confined by the sheriff as set forth in said order unless the relief prayed for therein is granted.

In response to the writ issued by this court on May 4, 1926, the district court has certified to this court the original files in the divorce action including the complaint, summons, demurrer, answer, and counterclaim, order to show cause, affidavit upon application for temporary alimony in said action, findings of fact, conclusions of law and decree of divorce, affidavit on order to show cause, order to show cause, proof of service of that order, and the order committing petitioner to the custody of the sheriff until payment of $ 100 is made. The record so certified also contains all minute entries made at the hearing in the divorce action, at the time of the issuance of the order to show cause and of the hearing upon that order, and the minute entry of the judgment of the court made upon such hearing. The defendant court also appeared by counsel and demurred to the petition for the writ of certiorari on the ground that the facts stated in the petition do not entitle petitioner to any relief. Defendants also filed a motion to quash. This motion is based upon the alleged ground that it does not appear either in the petition for the writ or from the files and records certified to this court by defendants that the district court in the exercise of its judicial function exceeded its jurisdiction or its authority in the premises, and that petitioner has a speedy and adequate remedy at law. Upon that state of the record the matter has been submitted for determination.

Petitioner did not, by answer or other pleading, put in issue the statements of the affidavit upon which the court issued its order to show cause on December 23, 1924. The court did not make findings either in an oral review of the testimony or in written findings at the hearing on the order to show cause or at the time of entering its order committing petitioner to the custody of the sheriff. That order recites the fact of the filing by Mrs. Hillyard of the affidavit on December 23, 1924, the issuance of the order to show cause, the appearance of petitioner in response to that order, the subsequent hearing, and concludes as follows:

"That on the date last mentioned this matter came to a hearing upon the affidavit of the defendant above named before the court, and, the court having heard the evidence introduced by the parties hereto, and the court having heard the arguments of counsel, E. T. Young, Esq., appearing for the plaintiff, and George C. Heinrich, Esq., appearing for the defendant, the court now finds, and it is hereby ordered and adjudged, that plaintiff pay to the defendant the sum of $ 100 forthwith, and that he be remanded to the custody of the county sheriff and committed to jail until the payment of the said amount of $ 100."

No claim is made that the court was without jurisdiction of the parties and subject-matter in granting the divorce and in entering its decree dissolving the bonds of matrimony then existing between the parties. Neither is it claimed that the court exceeded its jurisdiction in issuing the order to show cause upon the affidavit made on December 23, 1924. Counsel's contention, therefore, in its final analysis, is that the court did not regularly pursue the authority conferred in making the order committing petitioner to the custody of the sheriff and therefore exceeded its jurisdiction in making such order. He bases his objections to the jurisdiction of the court to enter the order committing petitioner to the sheriff and his right to have the same reviewed by writ of certiorari, stating the objections in the language of his brief, as follows:

"(1) No findings of fact were made or filed either separate from the order or recited therein, and findings were not waived. (2) The order or the record anywhere failed to find that any alimony was in fact due and unpaid. (3) The court failed to find that plaintiff is in contempt of court. (4) The court failed to find that plaintiff was able to pay the $ 100 or any other sum."

The second ground is without substance. It is stated in the affidavit that the petitioner had knowledge of the orders made in the divorce decree. It is also stated therein that petitioner had not paid any of these amounts. The record does not show that those statements were denied. If the petitioner had knowledge of the contents of the decree, then it must follow as an unanswerable conclusion that he knew that he had not complied with that order. Having knowledge of the contents of the decree, it was incumbent upon him to show that he had complied therewith if such were the fact. Where it is made to appear in the affidavit that the party whose duty it was to pay the alimony had knowledge of the order requiring such payment, the fact of payment or inability to pay is a matter of defense. Bice v. Bice (Wash.) 244 P. 1000.

A contempt proceeding of the nature disclosed by this record is a civil action. Snow v. Snow, 13 Utah 15, 43 P. 620. It is therefore earnestly contended that it was the mandatory duty of the court under the provisions of Comp. Laws Utah 1917, §§ 6828, 6829, to make findings of fact and conclusions of law, and that they should be separately stated unless such findings and conclusions are waived. Section 6828 provides that upon a trial of a question of fact by the court its decision must be given in writing and filed with the clerk within 30 days after the cause is submitted for decision. Section 6829 is:

"In giving the decision, the facts found and the conclusions of law must be separately stated, and the judgment must thereupon be entered accordingly."

It is contended by petitioner that the findings of fact were not waived, and that therefore the court exceeded its jurisdiction in entering its order and committing him to jail until findings were made to support the order.

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