Mchan v. Mchan

• Decision Date: 02 June 1938
• Docket Number: 6491
• Citation: 59 Idaho 41,80 P.2d 29
• Parties: FLORENCE MCHAN, Respondent, v. VANCE MCHAN, Appellant
• Court: Idaho Supreme Court

80 P.2d 29

59 Idaho 41

FLORENCE MCHAN, Respondent, v. VANCE MCHAN, Appellant

No. 6491

Supreme Court of Idaho

June 2, 1938

DIVORCE-ALIMONY-CONTEMPT-MODIFICATION OF DECREE - APPEAL - STAY OF PROCEEDINGS-ALLOWANCE OF ATTORNEY'S FEE AND COSTS.

1. A husband's appeal from order denying motion to modify alimony provision of divorce decree would not be dismissed or abated because of a pending proceeding in trial court instituted after husband's appeal, charging husband with contempt for violation of the alimony provision of a divorce decree.

2. The court does not have the power to deprive one guilty of contempt of a right as distinguished from a favor.

3. Where it appears necessary to preserve the status quo to do complete justice, the appellate court will grant a stay of proceedings in furtherance of its appellate powers.

4. Where husband appealed from order denying a motion to modify alimony provision of divorce decree, the Supreme Court would grant a stay of contempt proceedings instituted in trial court after husband's appeal was taken, which charged husband with violating the alimony provisions of the divorce decree, pending determination of the husband's appeal, in order to preserve the status quo and do complete justice.

5. An allowance of suit money and attorney's fees to wife in divorce suit is addressed to the sound discretion of the court. (I. C. A., sec. 31-704.)

6. The Supreme Court may allow attorney's fees to a wife in a divorce case when the allowance is necessary to complete exercise of the Supreme Court's appellate jurisdiction. (I. C. A., sec. 31-704.)

7. A husband who sought modification of an alimony provision of a divorce decree recognized that the divorce suit for the purpose of the proceeding was still pending, as regards whether the Supreme Court would grant wife's motion for attorney's fees and costs of printing wife's brief in supreme court. (I. C. A., sec. 31-704.)

8. Where the evidence created uncertainty of the financial ability of either husband or wife to pay attorney's fees and costs of printing the wife's brief in Supreme Court and uncertainty of what would be the final disposition of the case on husband's appeal from order denying his motion to modify alimony provision of a divorce decree, the wife's motion for attorney's fees and costs of printing would be considered and determined upon disposition of the appeal and, if the wife was unable to pay for the printing of her brief, she could file a typewritten brief.

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. D. H. Sutphen, Judge.

Motion to dismiss appeal or abate proceedings, motion to stay proceedings in contempt in lower court pending determination of appeal and motion for attorney's fees and cost of printing brief of respondent. Motion to dismiss or abate denied, motion to stay proceedings in contempt granted motion for attorney's fees and cost of printing brief to be determined upon disposition of appeal.

M. F Ryan, for Appellant.

A. F. James, for Respondent.

BUDGE, J. Morgan, Ailshie and Givens, JJ., concur. Holden, C. J., did not Participate.

OPINION

BUDGE, J.

This case involves the consideration of three motions made in and now before this court, as follows:

September 10, 1937, a motion to dismiss appellant's appeal, or if the court be of the opinion that such appeal should not be dismissed, to abate and suspend all proceedings until and unless appellant purges himself of his contempt of the lower court;

September 24, 1937, a motion by appellant to stay contempt proceedings in this action until after the determination by this court of appellant's appeal; and

October 2, 1937, a motion by respondent for an order requiring appellant to forthwith pay to respondent the sum of $ 200 as attorney fee and the sum of $ 50 to cover cost of printing respondent's brief.

To better understand the various motions a brief history of the case in its rather involved ramifications should be related. In a divorce action instituted by Florence McHan, respondent, against Vance McHan, appellant, a divorce decree entered December 29, 1932, among other things ordered appellant to pay respondent $ 35 monthly, during her lifetime, which payments appellant made for several years but ceased making upon learning of respondent's remarriage. October 8, 1936, an affidavit in contempt and a motion praying for an order to show cause were filed, and an order to show cause issued, and thereafter affidavit in answer to said order to show cause was filed. In so far as appears this proceeding was abandoned.

December 16, 1936, appellant filed, and served upon respondent, a motion to modify the decree in the divorce proceeding by striking the provision thereof with relation to the payment of $ 35 monthly. On January 7, 1937, respondent moved the lower court for an order requiring appellant to pay respondent $ 100 as attorney fee incurred by her in resisting defendant's motion to modify the decree. Appellant's motion to modify the decree and respondent's motion for $ 100 attorney fee came on for hearing January 11, 1937, and on February 3d, 1937, the lower court entered an order, in part, as follows:

" . . . . NOW THEREFORE, the court being fully advised in the premises hereby denies and overrules defendant's motion to modify said judgment and does grant plaintiff's motion to require the defendant to pay the plaintiff an attorney fee of $ 100.00 and hereby directs the defendant within 30 days from the date hereof to pay to the plaintiff said sum of $ 100.00."

From the foregoing order an appeal was taken to this court in March, 1937, which appeal has not been heard.

Following the taking of the appeal, the motions before this court were made, and from the affidavits in support thereof and the transcript the following appears:

On September 10, 1937, respondent moved to dismiss the appeal or for an order for its abatement or suspension, as heretofore referred to.

It appears that the contempt proceeding instituted October 8, 1936, was abandoned or suspended until subsequent to the appeal and about April 29, 1937, contempt proceeding was again instituted for failure to pay $ 35 monthly accruing subsequent to respondent's remarriage. On June 14, 1937, appellant filed in the trial court a "motion to stay contempt proceedings" until after the determination of appellant's appeal. September 17, 1937, the trial court denied appellant's motion to stay contempt proceedings, and ordered appellant to pay said monthly payments of $ 35 beginning September 15, 1937, and the delinquent amount,--one-half on or before December 1, 1937, and one-half on or before February 1, 1938, and further ordered "Pronouncement of judgment for said contempt will be withheld if the defendant complies with the terms and conditions of this order." It does not appear from the record that judgment in contempt has been entered in the lower court.

September 24, 1937, appellant filed his motion in this court for a supersedeas or order to stay contempt proceedings until after the determination of the appeal.

October 2, 1937, respondent filed her motion in this court for an order requiring appellant to forthwith pay to respondent $ 200 as attorney fee, and $ 50, to cover cost of printing respondent's brief.

It would appear that respondent's theory upon which is based her contention that the appeal should be dismissed or abated by reason of the fact that appellant is in contempt of the lower court, and further, that there should be no stay of the contempt proceedings, in effect, requires a partial determination of matters which no doubt will come up upon the appeal. Respondent urges that the lower court had no power to modify the divorce decree so as to affect payments which had already accrued thereunder,--that modification may only operate prospectively and not retroactively, saying:

"In view of the above rule of law laid down by this court in Simpson v. Simpson, (51 Idaho 99, 4 P.2d 345) and recognized generally, whatever this court may determine now will not relieve the appellant of his duty to pay the delinquent installments and as to such delinquent installments, the appellant cannot expect to receive any relief from this court. This being true, we believe that this court should refuse to permit the appellant to prosecute this appeal until and unless he pays to the respondent the amount of the installments delinquent under the divorce decree and until he thereby purges himself of the contempt of the orders of the lower court."

Such argument would in effect require a determination of the merits of the appeal prior to its having been heard. It cannot be said at this stage of the proceedings that the rule in Simpson v. Simpson, supra, is applicable. From the matter appearing in the various briefs and affidavits with relation to the motions it appears that possibly that which respondent contends for may be an important question for decision upon the appeal. It appears that this case may be subject to the rule announced in Hutchinson v. Hutchinson, 126 Ore. 519, 270 P. 484, 62 A. L. R. 660, and Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215, that the court does not have the power to deprive one guilty of contempt of a right as distinguished from a favor.

Where it appears necessary to preserve the status quo to do complete justice the appellate court will grant a stay of proceedings in furtherance of its appellate powers. (Kiefer v. City of Idaho Falls, 46 Idaho 1, 265 P....