Lusty v. Lusty

Decision Date31 May 1950
Docket NumberNo. 7589,7589
PartiesLUSTY v. LUSTY.
CourtIdaho Supreme Court

Robert M. Kerr, Jr., Blackfoot, Idaho, and Ira A. Huggins, Ogden, Utah, for appellant.

Holden & Holden, Idaho Falls, and Willard C. Burton, St. Anthony, for respondent.

GIVENS, Justice.

Appellant and respondent inter-married May 29, 1941, and have no children. Following his graduation from medical college, respondent was in the Navy from 1943 to May 21, 1946, when he commenced the practice of his profession in St. Anthony, August 6, 1946.

Appellant and respondent were divorced December 19, 1947, settling their property rights by stipulation, approved by the court in the divorce decree whereby appellant received their house and lot, household goods, etc. subject to the indebtedness thereon, and the use of a Ford car. Respondent received his office furniture, fixtures, medical supplies, etc., guns, fishing rods, and a Buick car. Appellant was to assume and pay a note to her father for $800.00 and respondent to assume and pay a note to his father for $1,000.00, and respondent was to pay appellant $250.00 per month alimony from January 1, 1948, on. Appellant has been in poor health and under a doctor's care extensively since the divorce.

Respondent began to fall behind in his alimony payments at least by the first of July, 1948. Respondent remarried November 7, 1948. November 1, 1948, appellant instituted proceedings requiring respondent to show cause why he should not be punished for contempt of court because of arrearages in payment of alimony of $800.00 as of October, 1948. Pursuant thereto, respondent was ordered to show cause on November 19, 1948, why he was not in contempt. December 30 of the same year respondent filed a motion to modify the decree.

At the hearing on the motions January 7, 1949, appellant insisted respondent's motion to modify could not be considered until he had purged himself of contempt. The learned trial court recognized such had been the holding of this court and complied therewith by undertaking to first determine whether respondent was guilty of contempt and then, upon holding he was not, modified the decree, reducing the payments to $150.00 per month; thus hearing both matters at one sitting--evidently for the convenience of the litigants and their witnesses. Such course is, perhaps, permissible if the distinction is made between the quantum and character of evidence necessary to purge of past and present contempt and to justify modification in the future.

If respondent was, without his fault, unable to make the payments required in the decree, he would not be guilty of contempt. In re Hamberg, 37 Idaho 550, 217 P. 264. On the other hand, if he were financially able to pay, or his lack of ability to pay were occasioned by his own dereliction, he would be guilty of contempt. Vollmer v. Vollmer, 46 Idaho 97, 266 P. 677; Selph v. Selph, 27 Ariz. 176, 231 P. 921; Bailey v. Superior Court of Los Angeles County, 215 Cal. 548, 11 P.2d 865; Fisch v. Marler, 1 Wash.2d 698, 97 P.2d 147 at page 153.

The court found that respondent was delinquent on the first of November, 1948, including the November installment, in the sum of $900.00; that he was entitled to a credit of $322.51 for obligations against or in connection with the property originally awarded appellant, paid by him after the divorce decree on the theory they were lienable items or encumbrances. It is doubtful if respondent is entitled to such credits, because appellant was granted the property decreed to her, subject to the indebtedness thereon, and these payments were made by respondent without appellant's initial knowledge or consent. However, conceding respondent was entitled to credit therefor, and certain articles awarded respondent which he contended appellant had not turned over to him, though she denied purposely depriving him thereof, and giving him the benefit of all his contentions in these respects, the court found that as of March 1, 1949, respondent was delinquent in the sum of $976.49 for failure to pay as required by the original decree. The court made these exculpatory findings:

'3. That the record establishes that the defendant has suffered a substantial decline in income in 1948, as compared with 1947 and since the aforementioned decree was made and entered, and that the defendant has been harried by debts long past due. That the aforementioned decline in income of this defendant is material, substantial and permanent.

'4. That there were two physicians and surgeons, including defendant practicing their profession in St. Anthony, Idaho in 1947, and until September or October, 1948, when a third doctor entered the practice there, and it is reasonable to assume that defendant's practice will be decreased somewhat, and that the decline in his income will be more or less permanent.

'5. That the default of the defendant in making the monthly alimony payments, as provided for in said divorce decree, is not, and has not been, contemptuous.

'6. That the above named defendant has not been adjudged guilty of contempt and has offered timely excuse for his failure to make said alimony payments.'

The court did not make a specific finding that respondent was unable to pay, though evidently intending that to be the effect of the findings thus drawn. Considering them to be such, they are clearly and obviously insufficient as findings because they do not find that by the decline in income or debt harrassment he was unable to pay the paramount debt imposed by this decree. Furthermore, considered and construed as findings of respondent's inability to pay, without respondent's fault, they are unsupported by and contrary to respondent's own evidence when the nature of the original decree is correctly considered.

Respondent's analysis 1 of his income and expenses not only does not show he was unable to pay, but does show he had the ability and possessed sufficiently adequate funds, aside from potentional credit, not disclosed, to pay. Vollmer v. Vollmer, supra; Smith v. Smith, Sup., 11 N.Y.S.2d 1015; Bice v. Bice, 138 Wash. 598, 244 P. 1000. The burden of proof was on respondent to prove his inability to pay. Armijo v. Armijo, 29 N.M. 15, 217 P. 623; Phillips v. Phillips, 165 Wash. 616, 6 P.2d 61. This was not met by merely showing decreased income or increased expenses. He had a good balance by his own reckoning.

The result of respondent's analysis is strengthened by appellant's analysis. 2 It is not a question of resolving disputed questions of fact, because we take respondent's own figures at their face value. Though respondent had been harried by debts long past due, it does not appear that any other judgment had been rendered against him, except the decree for alimony. It, therefore, constituted the highest form of debt which he owed and it was not within his discretion to fail to pay it, and pay and prefer other debts. Smith v. Superior Court of Yuba County, 89 Cal.App. 177, 264 P. 573 at page 580.

After a decree awarding alimony, and particularly when based on a voluntary stipulation by the husband, Stafford v. Stafford, 18 Wash.2d 775, 140 P.2d 545, has been entered requiring him to pay alimony, compliance therewith does not depend upon his volition and does not present the same problem as an initial determination. It is a positive decree; all pros and cons and ability and necessities having been adjudicated and determined, and until modified in proper proceedings, is an absolute commandment by the court and imperative requirement. Dissatisfaction therewith and regret over his stipulated liberality are not grounds for failure to comply. Chaffee v. Chaffee, 63 Utah 261, 225 P. 76.

Much is made of the helpless position respondent would be in if he could not seek a modification until he had purged himself of contempt, his hands thereby being tied. If respondent presently or prospectively at any time felt the decree was excessive, it was incumbent upon him to immediately apply for modification, State ex rel. Murphy v. Second Judicial Dist. Court in and for Silver Bow County, 99 Mont. 209, 41 P.2d 1113, not to default and take the chance of showing, when called to account for failure to pay, he did not have the ability to pay. Bradshaw v. Bradshaw, 23 Tenn.App. 359, 133 S.W.2d 617. If he takes such chance and his own evidence shows he had the ability to pay, and that he alone is responsible for his failure to pay, and he subjects himself to the result of his own recalcitrance--he alone is to blame--not the court, or his wife or anyone else. Johnson v. Johnson, 148 Kan. 682, 84 P.2d 888. The court was open to him at any time after the rendition of the original decree to seek modification thereof. Section 32-706, I.C. Yet, at a time when he was taking--by his own admission--rather extensive trips not in the practice of his profession, though in connection therewith; entertaining on rather an extensive though not a lavish scale, and when he contends his living expenses were legitimately $466.00 per month when appellant's should only be $65.00 per month--more than seven times greater, an unreasonable disparity--Kelly v. Kelly, 78 U.S.App.D.C. 97, 137 F.2d 254; Ex parte Elliott, 23 Cal.App.2d 346, 73 P.2d 284; Karteus v. Karteus, 67 N.D. 297, 272 N.W. 185; Meisner v. Meisner, 220 Minn. 559, 20 N.W.2d 486, he waited until he was called to account under the order to show cause before he sought a modification.

Regardless of what might be considered as to prospective decline in his practice by reason of another doctor coming to St. Anthony, it is as plausible to infer his decrease in income in 1948 was due as much to his laxity and perhaps loss of appellant's assistance as it was to conditions over which he had no control. The advent of another physician in St. Anthony in October, 1948, could not have affected respondent's practice prior thereto and yet he was delinquent at least since...

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