Jones v. Jones, 36287--8

Decision Date21 May 1954
Docket NumberNo. 36287--8,36287--8
Citation64 N.W.2d 508,242 Minn. 251
CourtMinnesota Supreme Court
PartiesJONES v. JONES.

Syllabus by the Court.

1. In the absence of fraud or other controlling circumstances which prevent the filing of an affidavit of prejudice within the time specified by Rule 63.03 of the Rules of Civil Procedure or which justifiably mislead a party in failing to do so, the filing of an affidavit of prejudice, after the time specified in the rule, is without effect unless the purpose of the rule has otherwise been substantially satisfied. Held under the controlling circumstances here that the affidavit was timely filed and should have been honored.

2. Where, under the circumstances here, an order adjudging the defendant guilty of contempt of court and directing his imprisonment in jail as punishment therefor is based, in part, upon defendant's failure to comply with the judgment, which judgment is now reversed and a new trial granted, and where the extent to which the judgment furnished the basis for the order of contempt and the imposition of the sentence does not appear Held, in the interest of justice, that the order adjudging the defendant guilty of contempt and the sentence imposed should be vacated and the proceeding returned for further consideration below.

Olson & Powell, Bemidji, for appellant.

John J. Benton, Grand Rapids, for respondent.

DELL, Chief Justice.

This is an appeal from a judgment in a divorce action awarding the custody of two minor children of the parties to the plaintiff and also an appeal from an order adjudging defendant in contempt of court.

Plaintiff and defendant were married in 1926. At the time of the trial plaintiff, the wife, was 44 years of age and the defendant 46. They are the parents of five children who, when the case was tried, were of the following ages: Lucille 22, Glen, Jr., 20, Carol 16, Iris 14, and Dale 13. Only the custody of Iris and Dale are involved. Their custody was awarded to the plaintiff.

Before the commencement of the trial but after the term at which the case had been noticed for trial had convened, an affidavit of prejudice was filed by the defendant against the Honorable J. J. Hadler, one of the three judges of said district and the judge who had been assigned to and presided at said term. He refused to recognize the affidavit on the ground that it was filed too late, and he therefore presided at the trial. The trial resulted in findings in favor of the plaintiff which granted her the right to live separately and apart from the defendant, awarded her the custody of Iris and Dale and allowed her alimony and support money. Judgment was entered upon the findings and thereafter defendant was found guilty of contempt of court for failure to obey the judgment as well as prior orders of the court granting custody of Iris and Dale to plaintiff and also for his failure to keep up the alimony payments as directed.

1. Defendant contends that the court erred in refusing to recognize and honor the affidavit of prejudice filed by him and in proceeding with the trial of said action.

On June 7, 1952, when the action was commenced, an order to show cause was issued by the Honorable D. H. Fullerton, one of the judges of said court. It directed the defendant to show cause before him on July 7 why an award of temporary alimony, support money, and attorney fees should not be made. Nothing is mentioned in the order concerning the custody of the children. On July 7 the parties appeared before Judge Fullerton but the hearing was dispensed with, counsel for the parties having then advised the judge that the matter would be worked out between them. Apparently their efforts proved futile since counsel for the plaintiff thereafter brought the matter to the attention of Judge Hadler, who, upon the pleadings and affidavits of the parties, on July 23, 1952, issued an order requiring defendant to pay plaintiff $150 a month for her support and the support of her minor children during the pendency of the action together with $65 to apply upon plaintiff's attorney's fees. The order contains no express provision awarding the custody of any of the children to the plaintiff.

On July 23, when the order was made, defendant's sole income was $118.45 a month, which sum he received from the Veterans' Administration under a 60-percent disability rating due to a heart condition. While at that time his doctors had certified defendant to the Veterans' Administration and his former employer, Danube Mining Company, as totally disabled, his disability allowance had not then been increased. Eventually the allowance was made and he thereafter received $228.50 a month from the Veterans' Administration and $52 a month from the mining company. Defendant claims that the matter, resulting in the order of July 23, was brought to the attention of Judge Hadler by plaintiff without his knowledge and without an opportunity of his counsel to be heard and that his first knowledge that the matter had been considered by Judge Hadler was when the order of July 23 was issued. Defendant claims that the matter should not have been brought before Judge Hadler or considered by him without defendant's knowledge and that an order should not have been made requiring defendant to pay alimony and support money substantially in excess of his entire monthly income.

On December 4, 1952, the case came on for trial before the Honorable Arnold C. Forbes, one of the judges of said court, by agreement of the parties. As far as was possible in a case of this type the issues were orally stipulated. The only matter left for consideration by the court, other than to have the case proved up as one of default, was the custody of Iris and Dale. After some evidence was introduced, Judge Forbes privately conferred with these children. Thereafter, in open court, in the presence of the parties but in the absence of the court reporter, he announced that because of the desire of Iris and Dale to live with their father he would grant their custody to the defendant. Counsel for the parties were instructed by Judge Forbes to inform the Veterans' Administration of his decision, and the matter was reset to be heard before him as a default matter on December 12. On December 12 plaintiff, apparently since she was not to have the custody of these children, repudiated the oral stipulation entered into on December 4, whereupon Judge Forbes continued the case to the February 1953 term of court for trial on all issues.

Prior to January 2, 1953, Iris and Dale were living with their mother at Grand Rapids. On that day they were taken to the defendant's home near Bovey by their brother Glen Jones, Jr. Iris and Dale have at all times consistently claimed that this was done at their request because of their desire to live with their father in preference to their mother, and defendant claims that he was in no way responsible for their return. Plaintiff claims that the facts justify an inference and finding that their return to the defendant on January 2 was brought about by his activities.

On January 17, 1953, Judge Hadler issued an order requiring the defendant to show cause before him on January 23 why he should not be held in contempt of court for his failure to make the payments to the plaintiff provided for under the order of July 23, 1952, and also for his failure to abide by said order of July 23 awarding the custody of Iris and Dale to the plaintiff, although as previously pointed out the order of July 23 contained no express provision awarding their custody to the plaintiff. The ex parte order of January 17 also provided that plaintiff should have the custody of Iris and Dale until the hearing on the order to show cause and required defendant to return said children to the plaintiff.

The hearing took place before Judge Hadler on January 23. Thereafter and on February 2 he issued his order in which he held that the order of July 23 awarded the custody of Iris and Dale to the plaintiff although it contained no express provision to that effect. He also held that the defendant had failed to make the payments required under the order of July 23; that he had not returned the children to the plaintiff as required under his order of January 17; and that his failure to make the payments and return the children was not excusable or justified. Defendant was thereupon adjudged guilty of contempt of court.

Defendant claims that he was unable to work because of his physical disability and was financially unable to meet the payments required by the order of Judge Hadler; that he was therefore not guilty of contempt of court. He also claims that the children were not returned to their mother because they protested bitterly saying that they would not again be subjected to the punishment, criticism, and unpleasantness of the plaintiff.

As punishment for contempt of court defendant was ordered imprisoned for a period of 60 days. However, execution of the sentence was stayed on condition that he forthwith pay the plaintiff the sum of $111.50 for alimony and support money for the month of February 1953 and $111.50 for each month thereafter and on the further condition that he forthwith return Iris and Dale to the plaintiff and also that he pay plaintiff's attorney $25 for attending the proceeding on January 23. The order expressly reduced the alimony and support money payments directed under the order of July 23 from $150 a month to $111.50 a month. It further provided that, upon defendant's failure to meet promptly all of the conditions of said order and upon the filing of an affidavit by plaintiff or her attorney with the clerk of court setting forth the default, the sheriff of Itasca county, upon receipt of a certified copy of the said order, should take defendant into his custody and execute the penal provisions of said order forthwith without any further order of the court. Thereafter such an affidavit was filed, whereupon defendant...

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