Hodous v. Hodous
| Decision Date | 22 March 1949 |
| Docket Number | 7122A. |
| Parties | HODOUS v. HODOUS. |
| Court | North Dakota Supreme Court |
[Copyrighted Material Omitted]
Syllabus by the Court.
1. An ex parte order of the trial court issued during the pendency of a divorce action directing payment by the defendant of temporary alimony and suit money, is not vulnerable to attack on the ground that no opportunity was given to the defendant to be heard, where it appears that a hearing had been had upon the issues involved in the action including the ability and liability of the defendant to pay alimony, the defendant had furnished the court with a financial statement, and the court was waiting further information from the defendant concerning his income before rendering final judgment.
2. It is the duty of a husband to support his wife out of his property or by his labor.
3. During the pendency of a divorce action the court may in its discretion require either party to pay as alimony any money necessary for the support of the other or to prosecute or defend the action. The authority of the court in this respect is derived from the statute (Section 14-0523 RCND 1943) and it is error for the court to direct payments for purposes that the statute does not contemplate.
4. A debt incurred by the wife for hospital, doctor, and medical expenses cannot be made the basis of a payment required to be made as temporary alimony where the debt was incurred several months prior to her application and its payment does not appear to be necessary for her support.
5. The failure of a party to obey an order that is void for want of authority in the court to issue it is not punishable as contempt, but the rule is otherwise in a case where the court having jurisdiction of the subject matter and the parties has issued an erroneous order.
6. Where the court entered an order requiring payment as temporary alimony and suit money of three different amounts, and the order was erroneous with respect to one of these amounts but valid and proper as to the other two, and the defendant made no attempt to comply with any portion of the order but wholly ignored it, the court did not err in adjudging him guilty of civil contempt.
7. The court may punish, as for civil contempt, a party to an action or proceeding, for the non-payment of a sum of money lawfully ordered by the court to be paid, in a case where by law execution cannot be awarded for the collection of such sum or for any other disobedience of a lawful order of the court. Where the misconduct for which a party is held guilty of contempt consists of an omission to perform a duty which is yet in the power to the contemner to perform, he may be imprisoned only until he has performed it and paid any fine imposed by the court.
8. Inability to comply with an order is a defense in a contempt proceeding based on a violation of the order, but where a defendant has voluntarily placed himself in the position where he is unable to conform to the order he may not avail himself of his inability thus created as a defense.
9. Where a defendant admits his default the burden is upon him to establish his defense of inability to comply with the order.
J. A. Hyland and C. L. Foster, both of Bismarck, for defendant and appellant.
Traynor & Traynor, of Devils Lake, for plaintiff and respondent.
This is an appeal from a judgment finding the defendant guilty of contempt of court for failure to make certain payments provided in an order of the District Court of Eddy County entered on May 5, 1948. This proceeding arises out of a divorce action brought by the wife of the defendant wherein the summons and complaint were served in August 1947. In September 1947 an order was issued by the court requiring the defendant to show cause why he should not be required to pay temporary alimony, suit money, and attorneys fees. The sheriffs of Burleigh County and Eddy County were unable to locate the defendant and no service was made upon him of that order and it was abandoned. An answer to plaintiff's complaint, dated September 6, 1947 and signed by the defendant personally, was served on the plaintiff's attorney by mail. No attorney's name appears on the answer and the defendant's post office address is given as Box 1073, Bismarck, North Dakota. The case was tried March 9, 1948. The defendant appeared at the trial in person and by attorney. The defendant testified in his own behalf and further participated by examining and cross-examining witnesses. The defendant's answers to questions concerning his income and property were evasive and unsatisfactory. Near the close of the trial the court asked defendant to submit a financial statement and copies of his 1946 and 1947 income tax returns, which the defendant agreed to do. When the defendant's counsel suggested that the defendant might have to go to Billings, Montana, to get necessary information, he stated, When the court inquired if the statement could be furnished in a couple of weeks the defendant said that it should not take that long. On March 24 the defendant filed a document designated as a financial statement. No copies of the defendant's income tax returns were ever presented to the court. The financial statement does not show his earnings or income. It does show that the defendant had cash on hand amounting to $3,800, 1000 bushels of oats, 250 bushels of wheat, and 275 bushels of barley. It also shows that the defendant had set up a trust fund of $12,000 for the maintenance and education of his youngest son and a similar fund of $8000 to be applied on payment of income tax that was then in litigation. An item of $19,500 salvage out of real property is unexplained. The statement does not show who is trustee of the funds mentioned therein, or what control thereover is retained by the defendant. It also states that income tax is to be paid on approximately $11,825, income for the year 1948.
On May 5, 1948 the court having heard nothing further from the defendant regarding his income or property, issued an order ex parte which provided that the defendant pay to the plaintiff or her attorneys the following sums for support, attorneys fees, and costs and expenses.
'The sum of $419.24 to pay for hospital, doctor and medical expenses, payable within 10 days after the date of this Order;
'The sum of $200.00 for attorneys fees for plaintiff's attorneys fees and suit expenses;
'That defendant pay to the plaintiff, within 10 (days) said $200.00 and also within 10 days * * * pay to plaintiff for support money the sum of $75.00 and thereafter on the first of June and each succeeding month likewise pay to plaintiff the sum of $75.00, until the further Order of the Court.'
A copy of this order was received by the defendant on or about May 8, 1948 at Billings, Montana. Upon application of plaintiff's attorney, the court, on June 3, 1948 issued an order returnable June 28, directing the defendant to show cause why he should not be held in contempt of court for his failure to comply with the order of May 5. On the return day of the order to show cause a motion to vacate it, made by the defendant, was denied and the matter continued till July 26, 1948. On the date last mentioned the defendant appeared in person and by attorney. Interrogatories were filed and the defendant also testified in person. The court found that the defendant was well able to pay the sums directed to be paid and that if he did not have the required funds at that time the condition was caused by the defendant's own act in divesting himself of funds for the purpose of avoiding payment. The court then adjudged the defendant guilty of contempt of court and ordered him committed to jail for ninety days.
The defendant and appellant attacks the validity of the order of May 5 upon the ground that it was issued ex parte and without notice to the defendant. The order is not vulnerable upon that ground. It was made after the court heard all the evidence submitted at the divorce hearing and the defendant had furnished a financial statment. The court was waiting for information regarding defendant's income taxes which he had agreed to produce within two weeks after the hearing. The court could have made a final disposition of the case, but instead chose to make an order temporary in nature, and wait further for the defendant to furnish information regarding his income. One attempt to secure an order for support and suit money had been made prior to the hearing and abandoned. The marriage relation had not been dissolved. It was the duty of the defendant to support his wife out of his property or by his labor. Section 14-0703, RCND 1943. The matter was still pending before the court. During the pendency of a divorce action the court may in its discretion require either party to pay as alimony any money necessary for the support of the other or to prosecute or defend the action. Section 14-0523, RCND 1943. Swanson v. Swanson, 75 N.D. 332, 28 N.W.2d 73. The fact that the court instead of finally disposing of the case and ordering judgment, decided to wait and give the defendant an opportunity to furnish additional information, and in the meantime issue a temporary order on the basis of the evidence already before him, does not indicate an abuse of power on the part of the court. In fact it was a reasonable and proper step to take in the pending litigation. The order of May 5 was not void for want of power of the court to make it.
The defendant next challenges the order upon the ground that in part at least it exceeds the statutory authority of the court to make an award pendente lite. The statute under which the court acted is Section 14-0523, RCND 1943...
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