McDonald v. McDonald
Decision Date | 13 December 1934 |
Docket Number | 6155 |
Citation | 39 P.2d 293,55 Idaho 102 |
Parties | JAMES MCDONALD, Plaintiff on Review, v. BEULAH B. MCDONALD (Now BEULAH B. MARTIN), Defendant on Review |
Court | Idaho Supreme Court |
DIVORCE-ALIMONY CONTRACT-ORDER WITHHOLDING PAYMENTS-JURISDICTION-CONSTITUTIONAL LAW-DUE PROCESS-APPEARANCE-REVIEW-ATTORNEYS' FEES AND SUIT MONEY.
1. Court held not without jurisdiction to enter order authorizing withholding payments to divorced wife under alimony contract because no undertaking was given, since order, being nothing more than permissive order running to applicant and not enjoining adverse party, was not "injunction" nor "restraining order," requiring bond (I. C. A., secs. 6-401, 6-405, 6-406).
2. Court did not lack jurisdiction to enter order authorizing withholding payments to divorced wife under alimony contract because order was unenforceable, since trust company or others having custody of funds involved were not parties.
3. Court had jurisdiction to enter order authorizing withholding payments to divorced wife under contract whether plaintiff was seeking modification of divorce decree on theory that payments provided for in contract constituted alimony or was relying upon wife's breach of contract (I. C. A., sec 31-706).
4. Divorced wife could not complain of court's lack of jurisdiction to enter order authorizing withholding payments under alimony contract, where she made no objection that she was not in court but appeared generally and voluntarily and asked affirmative relief (I. C. A., sec. 5-512).
5. Party wishing to insist upon objection that he is not in court must keep out for all purposes except to make such objection, since any appearance whereby case is recognized as pending, with jurisdiction of subject matter and of parties constitutes general appearance, and gives jurisdiction (I. C A., sec. 5-512).
6. Court having jurisdiction of parties and subject matter had jurisdiction to enter order authorizing withholding of payments to divorced wife under alimony contract (I. C. A sec. 1-1622).
7. Order authorizing withholding of payments to divorced wife under alimony contract, however irregular or erroneous, was not void, where court had jurisdiction of parties and of subject matter and of particular matter before it.
8. Setting aside order authorizing withholding of payments to divorced wife under alimony contract on sole ground of lack of jurisdiction to make it held error, where court had jurisdiction of parties and of subject matter and of particular matter before it.
9. Issuance ex parte of order authorizing withholding of payments to divorced wife under alimony contract held not denial of due process, where wife subsequently had ample opportunity to present defense.
10. To invoke Supreme Court's original jurisdiction to order payment of attorney fees and suit money in divorce case, it must appear that there is occasion for exercise of such appellate jurisdiction and that allowance is necessary or proper to complete exercise thereof (Const., art. 5, sec. 9).
11. Divorced wife was not entitled to allowance for attorneys' fees and suit money to enable her to defend against writ of review growing out of husband's application for order authorizing withholding of payments under alimony contract, where $300,000 had already been paid, wife had sufficient separate estate to enable her to properly defend in such proceeding, and there was no community property from which payment could be made (I. C. A., secs. 31-704 to 31-709; Const., art. 5, sec. 9).
Original proceeding for a Writ of Review. Granted.
Reversed and remanded, with instructions. Each Party to paid their own costs.
James F. Ailshie, Jr., and W. H. Langroise, for Plaintiff on Review.
The lower court had jurisdiction to entertain appellant's motion for order to show cause and withhold payments. Both James McDonald and Mrs. Martin had submitted to the jurisdiction of the court, and the subject matter was before the court. (Meredith v. Santa Clara Min. Assn. of Baltimore, 60 Cal. 617; Toledo Scale Co. v. Computing Scale Co., 281 F. 488; Bunnell & Eno Inv. Co. v. Curtis, 5 Idaho 652, 659, 51 P. 767; People v. McKelvey, 19 Colo. App. 131, 74 P. 533.)
Section 11-102, I. C. A., gives the court power to correct error in the issuance of ex parte orders upon ex parte application, but does not and could not permit a court to declare void those acts or any act within the jurisdiction of the court to perform.
Due process of law as guaranteed by the federal Constitution did not require notice to Mrs. Martin prior to the entry of the order of April 30th, but merely required that she be given an opportunity to present every defense and to be heard. (York v. Texas, 137 U.S. 15, 11 S.Ct. 9, 34 L.Ed. 604.)
Attorneys' fees cannot be allowed in special proceedings or under the showings in the case at bar. (I. C. A., sec. 13-204; Callahan v. Dunn, 30 Idaho 225, 231, 164 P. 356; Vollmer v. Vollmer, 46 Idaho 97, 266 P. 677; Vollmer v. Vollmer, 43 Idaho 395, 253 P. 622.)
The only authority for the allowance of suit money and attorneys' fees is statutory, and when the relation of husband and wife ceases to exist and the support and maintenance of the children is not involved, there is no authority to grant a former wife suit money and attorneys' fees. (I. C. A., sec. 31-704; Mathers v. Mathers, 40 Idaho 189, 232 P. 573; Mathers v. Mathers, 42 Idaho 821, 248 P. 468.)
U. S. Webb and Chapman & Chapman, for Defendant on Review.
The order of April 30, 1934, is an order requiring the plaintiff on review, James McDonald, his agents, trustee or trustees, assignee or assignees, to withhold any and all payments of whatsoever kind or character directed to be made by the said James McDonald to Beulah B. McDonald, now Beulah B. Martin, in accordance with the agreement between said parties dated December 11, 1924, and the decree of the district court, dated December 15, 1924, and is an injunction, as defined by the statutes of this state. (Sections 6-401, 6-402, I. C. A. 1932; Wilson v. Boise City, 7 Idaho 69, 60 P. 84; Roberts v. Kartzke, 18 Idaho 552, 111 P. 1; Brinton v. Steele, 19 Idaho 71, 112 P. 319; Scholtz v. American Surety Co., 35 Idaho 207, 206 P. 187.)
Since the injunctive order of April 30, 1934, was granted without notice to the defendant on review, Beulah L. Martin, she had a right to apply to the judge who granted such injunctive order for its dissolution, and where she based her application upon the verified petition for an order to withhold payments pendente lite, it was unnecessary for her to give notice. An order made ex parte and without notice to the adverse party may be vacated by the judge who made it, without notice.
The writ of review issued by this court should be dismissed for the reason that the district court, in dissolving the order of April 30, 1934, did not exceed but clearly acted within its jurisdiction. (Sections 6-409, 11-102, I. C. A. 1932; Kimbley v. Adair, 32 Idaho 790, 189 P. 53; Meyer v. First National Bank, 10 Idaho 175, 77 P. 334.)
This court has jurisdiction to make an allowance of attorneys' fees and suit money upon the original proceeding for writ of review, which is a new and independent proceeding, but as regards the merits of the controversy, it is the same action as the one pending in the district court, although this proceeding divests the district court of any jurisdiction with respect to attorneys' fees and suit money in this court. (Chapter 2, title 13, I. C. A. 1932; 54 C. J. 748, 749; Little v. Bunce, 7 N.H. 485, 28 Am. Dec. 363; Roby v. Roby, 9 Idaho 371, 74 P. 957, 3 Ann. Cas. 50.)
This is an original proceeding for writ of review and grows out of an application by James McDonald, hereinafter referred to as plaintiff, for modification of a contract alleged to be a part of a decree of divorce made and entered in favor of Beulah B. McDonald, now Beulah B. Martin, hereinafter referred to as defendant, in the district court of the fourth judicial district, for Blaine county, on December 15, 1924. This decree of divorce made the following references to the contract:
The contract, which was entered into four days prior to the entry of the decree of divorce, provided, inter alia, that plaintiff at a subsequent time, dependent upon the result of certain litigation then pending in the Supreme Court of the District of Columbia, would pay to defendant the gross sum of $ 400,000. More than one year after the entry of the decree of divorce and by and through subsequent contracts or modifications between the parties the terms of payment of the $ 400,000 were so changed and modified that said $ 400,000 was to be paid: $ 100,000 in cash and the balance at the rate of $...
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