Hoffman v. Hoffman

• Citation: 26 S.D. 34,127 N.W. 478
• Parties: HENRY HOFFMAN, Plaintiff and appellant, v. ELLEN MARIE HOFFMAN, Defendant and respondent.
• Decision Date: 27 June 1910
• Court: South Dakota Supreme Court

26 S.D. 34, 127 N.W. 478 (1910)

HENRY HOFFMAN, Plaintiff and appellant v ELLEN MARIE HOFFMAN, Defendant and respondent South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Joseph W. Jones, Judge Reversed Null & Royhl Attorneys for appellant. Muller & Conway Attorneys for respondent. Opinion filed June 27, 1910

WHITING, P. J.

This is an appeal from the judgment of the circuit court adjudging the appellant guilty of contempt of said court, and which judgment provided for his punishment by imprisonment. The action out of which this matter arose was one brought for divorce, in which said action the appellant was plaintiff. In said action the court, upon proper notice, had entered an order requiring this appellant to pay certain sums by way of temporary alimony, suit money, and attorney's fees, and the appellant, having neglected to make the payments as ordered, was brought to the court upon an order to show cause, requiring him to show cause why he should not be punished for contempt owing to his failure to obey said order of such court directing him to pay alimony and suit moneys. Upon the return of such order to show cause, the appellant submitted his own and another affidavit to substantiate the claim of appellant that he was financially unable to obey the said order requiring such money payments. Upon such hearing on said order to show cause, the court rendered a judgment, as hereinbefore noted, finding the appellant in contempt and punishing him by imprisonment. There appears to have been no separate findings of fact made by the court, and the judgment itself, after setting forth the jurisdictional matters, so far as it purported to find facts showing the appellant guilty of contempt, was in words as follows:

"And the court having read the affidavits of the plaintiff in reply to said order to show cause as aforesaid, and heard arguments of counsel in behalf of the plaintiff and in behalf of the defendant, and being fully advised in the matter and having duly considered the same, and it further appearing that the plaintiff has refused to comply with the conditions of said order of February 1, 1910, and that he is now in contempt of court and guilty of disobedience of said order."

Appellant upon this appeal assigns as error the omission of the court to make any finding as to the ability of appellant to comply with the court's order requiring the said money payments; also, the adjudging of the appellant to be guilty of contempt without a finding that appellant was financially able to comply with the court's order. Certain other assignments are saved in the record, but, in the view which we take of this case, it is unnecessary for the same to be considered.

The sole question for our consideration herein is whether the court has the right to adjudge a party to be in contempt of court without in any manner making findings of fact showing as a matter of law that the party accused, was in fact guilty of contempt. A similar question arose in the case of In re Deaton, 105 N.C. 59, 11 S.E. 244, wherein a party had been adjudged guilty of contempt for acts not committed in the presence of the court; and in relation to the point before us the court said:

"It is the duty of the court in passing sentence for contempt when committed in the presence...