Jones v. Jones

• Decision Date: 06 June 1967
• Docket Number: No. 9634,9634
• Citation: 428 P.2d 497,91 Idaho 578
• Parties: Pauline E. JONES, Plaintiff-Respondent, v. William T. JONES, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 497

428 P.2d 497

91 Idaho 578

Pauline E. JONES, Plaintiff-Respondent, v. William T. JONES, Defendant-Appellant.

No. 9634.

Supreme Court of Idaho.

June 6, 1967.

John Hjellum, II, Boise, for appellant.

Allan G. Shepard, Atty. Gen., and Eugene L. McCoy, Sp. Asst. Atty. Gen., Boise, for appellee.

SMITH, Justice.

Appellant was adjudged in contempt of court for violation of a child support order entered by the district court. From the order adjudging him in contempt appellant appeals.

The author of this opinion has serious reservations as to the propriety of an appeal from judgments and orders of contempt. I.C. § 7-614 expressly provides that '(t)he judgment and orders of the court or judge, made in cases of contempt, are final and conclusive.' We have previously ruled that a contemnor should proceed by way of an extraordinary writ, and not by appeal. Mathison v. Felton, 90 Idaho 87, 408 P.2d 457 (1965); Poff v. Scales, 36 Idaho 762, 213 P. 1019 (1923); Levan v. Richards; 4 Idaho 667, 43 P. 574 (1896).

A majority of the court, however desire to resolve this appeal on the merits inasmuch as respondent does not challenge the appeal, see Nez Perce County v. Latah County, 3 Idaho 413, 31 P. 800 (1892), and since Idaho's Constitution, Art. 5, § 9, provides that '(t)he Supreme Court shall have jurisdiction to review, upon appeal, any decision of the district courts * * *.' See also State ex rel. State Board of Medicine v. Smith, 80 Idaho 267, 328 P.2d 581 (1958); Idaho Const., Art. 5, § 13, I.C. § 1-1622. We therefore consider and resolve appellant's substantive contentions.

Respondent's action for divorce from appellant was tried in the third judicial district court in Ada County on June 19, 1964. Appellant personally appeared at the trial, Seven days later, on June 26, 1964, the court entered a decree of divorce in respondent's favor; awarded respondent the custody of the six minor children, issue of the marriage, and ordered appellant to pay each month to respondent, child support money in the amount of $33.33 for each child. The court further ordered that the child support money be paid to the clerk of the district court as trustee, he to receipt therefor and pay over the money so received to respondent. The record does not indicate whether such decree and order were served upon appellant or appellant's counsel.

On November 24, 1964, the clerk of the district court filed an affidavit in said court and cause, which alleged,

'That he is the Clerk of the above District Court; That a such official, he has custody of the above entitled file and records pertinent thereto: that he does hereby state that said file contains an order of the above entitled court ordering above named WILLIAM T. JONES to pay to the Clerk of said Court the sum of Two Hundred ($200.00) Dollars per month as and for the support of his minor children. That the records pertaining to the file of the above entitled cause disclose that the above named WILLIAM T. JONES has failed to comply with the terms and conditions of said order.'

The affidavit, together with an order to show cause in re contempt, were personally served upon appellant.

At the hearing pursuant to the order to show cause, appellant moved to strike the aforesaid affidavit, contending that it did not contain the essential allegation that appellant was served with the order for child support, or that appellant had actual knowledge of such order at the time of the alleged violation. The court denied appellant's motion and, upon judicially noticing its own records, adjudged appellant in contempt of court for violation of the June 26th child support order. The court made no express finding as to appellant's actual or constructive notice of such support order.

The challenge to the sufficiency of the clerk's affidavit, as set out in appellant's motion to strike, is preserved on this appeal, since denial of that motion was an interlocutory order not in itself subject to an immediate appeal. Maxwell v. Twin Falls Canal Co., 49 Idaho 806, 292 P. 232 (1930); Steinour v. Oakley State Bank, 32 Idaho 91, 177 P. 843 (1918).

Under the Idaho Code, contempts are of two classes-direct contempts, which occur in the immediate presence of the court, and indirect contempts, which occur outside the presence of the court, Appellant's alleged conduct falls within the second class, as an indirect contempt. I.C. § 7-603 provides that in such cases,

'* * * When the contempt is not committed in the immediate view and presence of the court, or judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt * * *.'

The affidavit on which contempt proceedings are based constitutes the complaint, and its function is to apprise the alleged contemnor of the particular facts of which he is accused, so that he may meet such accusations at the hearing.

In a contempt proceeding the court acquires no jurisdiction to proceed until a sufficient affidavit is presented. Harkness v. Hyde, 31 Idaho 784, 176 P. 885 (1918). Since contempt proceedings are quasi-criminal in nature, even though designed to impose punishment for violation of an order made in a civil action, no intendments or presumptions may be indulged to aid the sufficiency of the affidavit. Phillips v. Superior Court, 22 Cal.2d 256, 137 P.2d 838 (1943), construing Calif. Code Civ.Pro. § 1211, identical to I.C. § 7-603.

The initiating affidavit must allege that the contemnor or his attorney was served with the order which he is charged as having violated I.R.C.P. 5(b) and 77(d), or that he had actual knowledge of it. Collins v. Superior Court, 145 Cal.App.2d 588, 302 P.2d 805 (1956); Doyle v. Superior Court, 113 Cal.App.2d 880, 249 P.2d 299 (1952); Young v. Superior Court, 69 Cal.App. 281, 231 P. 347 (1924); Trullinger v. Howe, 58 Or. 73, 113 P. 4 (1911); State ex rel. Oregon State Bar v. Lenske, Or., 405 P.2d 510 (1965).

The clerk's affidavit failed to state a prima facie case against appellant, in that it did not contain any allegation to the effect that the child support order was served upon appellant or his attorney, or that he had actual knowledge thereof. Hence, the trial court erred in denying appellant's motion to strike the affidavit, or in failing to direct respondent to file an amended or additional affidavit.

Respondent contends that the initiating affidavit need not allege service or notice of the order where the records of the court in the contempt proceedings indicate the contemnor's actual notice of such order. In particular, respondent directs the court's attention to the trial court's June 19, 1964, minute entry which recites that appellant personally appeared in the divorce action engendering the child support order. Where the affidavit fails to allege all essential material facts, however, such deficiencies cannot be cured by proof supplied at the hearing, Phillips v. Superior Court, supra; Frowley v. Superior Court, 158 Cal. 220, 110 P. 817 (1910), or by judicial notice of the court's own records. State v. Lenske, supra. Moreover, the mere allegation by affiant that the alleged contemnor personally appeared in the action giving rise to the order is insufficient to charge actual or constructive notice of that order. Freeman v. Superior Court, 44 Cal.2d 533, 282 P.2d 857 (1955); Phillips v. Superior Court, supra.

Order is reversed and the cause remanded for further proceedings including leave to amend the affidavit. State v. Lenske, supra, No costs allowed.

TAYLOR, C. J., and McQUADE, McFADDEN and SPEAR, JJ., concur.

TAYLOR, Chief Justice (concurring specially):

The constitution gives appellant the right to have the decision adjudging him guilty of contempt reviewed by this court 'upon appeal.' 'The Supreme Court shall have jurisdiction to review, upon appeal, any decision of the district courts, or the judges thereof, * * *.' (Emphasis added) art. 5, § 9. It should not be necessary to repeat that in the American political system the constitution is the fundamental organic law of the state, and that the act of any department or officer contrary to its provisions is null and void. Need we remind ourselves that any act of the legislature contrary to, or violative of, any provision of the constitution is null and void. We have repeatedly held that the legislature may not diminish the jurisdiction conferred by the constitution upon the district court. State v. Interest of Lindsey, 78 Idaho 241, 300 P.2d 491 (1956); Boise City v. Better Homes, 72 Idaho 441, 243 P.2d 303 (1952); Clemens v. Kinsley, 72 Idaho 251, 239 P.2d 266 (1951); Robinson v. Robinson, 70 Idaho 122, 212 P.2d 1031 (1949); Fox v. Flynn, 27 Idaho 580, 150 P. 44 (1915). Likewise, the legislature may not diminish, or circumscribe, the jurisdiction conferred upon this court by the constitution.

In State ex rel. State Board of Medicine v. Smith, 80 Idaho 267, 268, 269, 328 P.2d 581 (1958), we held:

'* * * Despite dicta to that effect in some of our earlier decisions, the right of appeal to the supreme court is not purely statutory. Art. 5, § 9, * * * constitution. * * * That section is the source of the jurisdiction of the supreme court. The jurisdiction thus conferred cannot be denied or diminished by any act of the legislature. Art. 5, § 13, Const.'

It is not sufficient to say that the constitutional provision providing the right to review upon appeal is not self-executing. If the right cannot be exercised in the absence of legislation providing procedure therefor, then it follows as a matter of logic that the legislature by failure to provide the procedure can deny the right, and prevent the exercise by this court of the jurisdiction conferred by the constitution. That would mean that the legislature, at its pleasure, could strike out or modify a provision of the constitution. That power the legislature does not possess.

'The legislature shall have no power to deprive the judicial department of any power or...