Josey v. Josey
| Decision Date | 13 April 1926 |
| Docket Number | 16303,16607. |
| Citation | 245 P. 844,114 Okla. 224,1926 OK 353 |
| Parties | JOSEY v. JOSEY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A divorce decree, awarding custody of minor children to the mother, does not destroy the relationship between the father and the children. The father's duty and liability to support remains the same as theretofore, except: (1) In so far as he is incapacitated; (2) in so far as the decree discharges and releases him from any natural, legal, or statutory duty to support his children; and (3) in so far as it can be said, in view of section 8035, Compiled Oklahoma Statutes 1921, that the support and maintenance rendered by the parent to whom custody has been awarded is voluntary, or without an agreement for compensation.
Under section 507, Compiled Oklahoma Statutes 1921, the court granting a decree of divorce and awarding custody of minor children to the plaintiff has authority, after final judgment in the action, to enter an order providing for the maintenance and support of such children.
Appeal from District Court, Oklahoma County; T. G. Chambers, Judge.
Action by Ina Pearl Josey against William C. B. Josey for a divorce. Judgment for plaintiff, and awarding her custody of minor children, later modified by an order directing defendant to pay maintenance and support of such children. From two convictions for contempt for failure to pay for support and maintenance of the children, and from a refusal to vacate the order which was the basis of the contempt proceedings defendant appeals. Causes consolidated on appeal. Affirmed.
Gustave A. Erixon and Claude Weaver, both of Oklahoma City, for plaintiff in error.
Mike Foster and Hoyt & Stephens, all of Oklahoma City, for defendant in error.
In cause No. 16303, the appeal is based upon a conviction of indirect contempt of court in the failure of the plaintiff in error to pay support and maintenance for his minor children as he was ordered to do. In cause No. 16607, the appeal is from a judgment of like contempt growing out of the same matter, but of a later date, together with a refusal by the court to vacate the order of December 3, 1924, which was the basis of the contempt proceedings. The parties will be mentioned as they appeared below.
Ina Pearl Josey filed her action for divorce from her husband William C. B. Josey, on May 17, 1924, in the district court of Oklahoma county. She was granted a decree of divorce June 5, 1924, at the fault of the defendant. Upon application of plaintiff on December 31, 1924, and without further notice to defendant, and upon an ex parte hearing, the court issued an order requiring defendant to pay $15 per week for maintenance of his minor children, whose custody had theretofore been awarded plaintiff under the decree of divorce. The defendant failed and refused to obey this order. On motion of plaintiff the court cited the defendant to answer the charge of contempt. The defendant demanded and secured a jury trial and on March 24, 1925, the jury rendered a verdict of guilty against him, and the defendant was sentenced to confinement in the county jail for a period of 30 days.
Forming the basis of cause No. 16607, on April 9, 1925, the defendant was again cited to answer a charge of contempt for a failure to obey the order of December 3, 1924, in his failure to pay maintenance and support for his minor children for a time subsequent to that upon which his first appeal lay. The defendant pleaded a lack of jurisdiction. This the court overruled. The defendant filed his petition in the court below to vacate the order of December 3, 1924, which was the support and maintenance order.
By agreement the contempt charge and the petition to vacate the order of December 3, 1924, were consolidated and tried to the court without the intervention of a jury. Judgment in both matters was rendered against the defendant, and he was sentenced to jail for contempt. On appeal the causes were consolidated, and both judgments were superseded.
It is first contended by the defendant that he and the plaintiff entered into a contract which was approved by the court in the divorce decree whereby the property rights of the parties were settled, and that such a status precluded the court from making such further order, as it did on December 3, 1924. We do not agree in any particular with this contention. The father's duty to support his minor children is a continuing obligation, subject to certain limitations.
A divorce decree, awarding custody of minor children to the mother, does not destroy the relationship between the father and the children. The father's duty and liability to support remains the same as theretofore, except: (1) In so far as he is incapacitated; (2) in so far as the decree discharges and releases him from any natural, legal, or statutory duty to support his children; and (3) in so far as it can be said, in view of section 8035, Compiled Oklahoma Statutes 1921, that the support and maintenance rendered by the parent to whom custody has been awarded is voluntary, or without an agreement for compensation.
The defendant contends that the equity conveyed to plaintiff in the property settlement was in the value of $1,500. The testimony of plaintiff is that she received by sale of this property $153, and that, after defendant was first...
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