Martin, Application of

• Decision Date: 08 February 1955
• Docket Number: No. 8269,8269
• Citation: 279 P.2d 873,76 Idaho 179,53 A.L.R.2d 582
• Parties: , 53 A.L.R.2d 582 Application of Duke H. MARTIN for a Writ of Habeas Corpus.
• Court: Idaho Supreme Court

Page 873

279 P.2d 873

76 Idaho 179, 53 A.L.R.2d 582

Application of Duke H. MARTIN for a Writ of Habeas Corpus.

No. 8269.

Supreme Court of Idaho.

Feb. 8, 1955.

Anderson & Anderson, Pocatello, for appellant.

No appearance for respondent.

TAYLOR, Chief Justice.

This is an original proceeding in habeas corpus by which petitioner seeks release from custody of the sheriff of Blaine County, who holds him in the county jail by virtue of an order of the Honorable D. H. Sutphen, judge of the district court. The order was entered in contempt proceedings arising out of the failure of the petitioner to pay the sum of $115, for the support of his minor children, as required by order made, subsequent to the decree, in divorce proceedings brought against him by his former wife.

A few days before the action for divorce was commenced, the petitioner and his then wife entered into a property settlement agreement by the terms of which petitioner agreed to pay to the wife the sum of $150 per month for the support of the two minor children of the parties. The agreement was referred to in the divorce complaint and was received in evidence upon the hearing. In its decree of July 19, 1951, the court provided that the agreement 'for the maintenance and support of the said children be approved, confirmed and ratified by this court, and the parties are each ordered and directed to comply with the terms and provisions thereof on his or her part to be performed with the same force and effect as if such terms and provisions were set out in haec verba as a part hereof.'

Sometime in 1953 petitioner made application to the district court to modify the decree. After hearing thereon an order was made October 15, 1953, making some modification and continuing the application to February 4, 1954, on which date, and after further hearing, the following order was made and entered:

'Now therefore, it is hereby ordered, adjudged and decreed That the decree of divorce heretofore entered on the 19th day of July, 1951, be and the same hereby is amended and the previous order of said Court dated October 15, 1953, is also amended in the following particulars, to-wit: That the defendant Duke H. Martin shall pay to the plaintiff, Gwen J. Martin, the sum of One Hundred Dollars ($100.00) for the support and maintenance of the children of the parties hereto for the month of February, 1954. That thereafter the defendant, Duke H. Martin, shall pay to the plaintiff the sum of One Hundred Twenty-Five Dollars ($125.00) per month for the support and maintenance of the said minor children and that this order shall continue until further order of the Court.'

Thereafter, on November 27, 1954, an affidavit, made by the former wife, was filed in the divorce proceedings, in which the affiant alleged the making of the order of February 4, 1954; that the payments required by the order were made by petitioner for the months of February, 1954, through September, 1954, and for November, 1954; and that the October payment had not been made. Based upon this affidavit order to show cause was issued and upon the hearing thereof, on December 16, 1954, the following findings, conclusions and order were made and entered:

'1. That the said defendant is in default in the payment of support money due the plaintiff for the month of October, 1954, for the support of the minor children of the parties, under an order of the Court dated February 4, 1954, in the amount of $115.00.

'2. That the said sum is due the plaintiff from the defendant under said Order, and that the same has not been paid.

'3. That the said defendant is employed by the Triumph Mining Company, at a salary of $15.19 per day; that his average 'take-home' pay is in the amount of $350.00 per month; that the said defendant is remarried, and that he and his present wife are building a home, for which they have bought material out of their joint funds.

'4. That the defendant received the sum of $4,900 from the sale of a club formerly owned by him; and that said sum was received by defendant in February 1954, as a payment to him from the sale of said club; and that defendant owns a 1954 model Ford automobile.

'5. That the said defendant at present has the sum of $510.00 available to him and owned by him; and that said defendant has the present ability to pay the sum of $115.00 due from him to the plaintiff as aforesaid.

'6. That plaintiff has requested that the sum of $50.00 be granted for the prosecution of said Order to Show Cause, and that said sum is a reasonable sum to be allowed for such purpose.

'As a conclusion of law, from the foregoing facts, the Court finds that the said defendant, Duke H. Martin, has willfully failed and neglected to pay the said sum of $115.00 to the plaintiff, having the present ability so to do, and that by reason thereof the said defendant is in contempt of this Court.'

'It is hereby ordered, adjudged and decreed, that the said defendant, Duke H. Martin, is guilty of contempt of this court for his willful failure to pay to the plaintiff the sum of $115.00, which is due and owing from him to the said plaintiff under that certain Order of the Court dated February 4, 1954;

'And it is further ordered, adjudged and decreed, that the said defendant, Duke H. Martin, is hereby sentenced to be confined to the county jail, at Hailey, Blaine County, Idaho, until such time as he shall purge himself of his contempt of this Court by the payment to the said plaintiff of the sum of $115.00, together with the further sum of $50.00 as plaintiff's attorneys' fees herein, and the further sum of $2.70 as costs.

'Witness my hand this 16th day of December, 1954.'

Petitioner's first contention is that the order of February 4th, modifying the decree, is void because the court lacked jurisdiction to make it. He contends that, since the decree did not incorporate the agreement for support, but merely approved it, and ordered the parties to comply with its terms, there was nothing in the decree with reference to support for the court to modify, citing, among other cases, Bainbridge v. Bainbridge, 75 Idaho 13, 265 P.2d 662. The Bainbridge case is not in point. While there was a child involved in that case, the trial court did not undertake to modify either the decree or the contract as to child support. It attempted to modify the decree only as to support for the wife. There is a vital difference. As we recognized in the Bainbridge case, the parties to a divorce proceedings are competent to contract. Parke v. Parke, Idaho, 279 P.2d 631. The minor children are not competent. Their natural and legal right to support cannot be denied or abridged by any agreement between the parents. Hay v. Hay, 40 Idaho 159, 232 P. 895; Miller v. Superior Court, 9 Cal.2d 733, 72 P.2d 868; Smith v. Smith, 125 Cal.App.2d 154, 270 P.2d 613; Holloway v. Holloway, 130 Ohio 214, 198 N.E. 579, 154 A.L.R. 439.

'* * * The duty of a father to supply necessaries for a child's maintenance cannot be discharged by a separation agreement between husband and wife. Melson v. Melson, 151 Md. 196, 134 A. 136. It follows that that portion of the property settlement agreement and the decree relieving respondent from all further liability for the support and maintenance of the minor child is void as between said minor and its parents.' Keyes v. Keyes, 51 Idaho 670, at page 674, 9 P.2d 804, at page 805.

Further, our statute expressly provides:

'In an action for divorce the court may, before or after judgment, give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same.' § 32-705, I.C.

Decrees and orders affecting the custody and support of children are subject to the continuing control of the court and do not become final. Sauvageau v. Sauvageau, 59 Idaho 190, 81 P.2d 731; Arkoosh v Arkoosh, 66 Idaho 607, 164 P.2d 590; Smith v. Smith, 67 Idaho 349, 180 P.2d 853; Rosgen v. Rosgen, 68 Idaho 521, 200 P.2d 1005; Hendricks v. Hendricks, 69 Idaho 341, 206 P.2d 523, 9 A.L.R.2d 617. Under the foregoing statute (assuming the parties and the children remain subject to its jurisdiction) the court may make a valid order for the support of the children 'after judgment', even though no provision had been made for them in the decree. Hence, whether we regard the decree in this case as merely defective as to child support and subject to modification, or whether it be considered without any provision for such support, the result is the same. The court's jurisdiction in the premises continued, and properly invoked it could make provision for support of the children. Nor do we think the fact that the proceedings culminating in the order of February 4, 1954, and the order itself, purported to modify the decree, would in any way affect the validity of the order. The court had jurisdiction of the parties, of the subject matter, and the power to enter the order. In such circumstances, however erroneous the court's action might be, it could not be void.

Moreover, the petitioner brought the proceedings and procured the order of February 4th. It required him to pay $125 per month support, instead of the $150 per month, which he had by contract agreed to pay. Thus, he sought the aid of the court to relieve him from a part of his contractual obligation and he accepted the benefits of the order by paying the lesser amount over a period of several months before he defaulted. True, a party cannot confer jurisdiction upon a court by consent, by agreement, or by seeking to invoke jurisdiction which does not exist. But, here the court had jurisdiction of the subject matter and the power to act in the premises. Having invoked that jurisdiction, the petitioner cannot now be heard to challenge the action of the court for want thereof. McDonald v. McDonald, 55 Idaho 102, 39 P.2d 293.

Petitioner also urges that the affidavit of his former wife was insufficient and fatally...