Olson v. Olson

• Court: North Dakota Supreme Court
• Writing for the Court: Nuessle
• Citation: Olson v. Olson, 76 N.D. 553, 38 N.W.2d 32 (N.D. 1949)
• Decision Date: 13 May 1949
• Docket Number: 7113.
• Parties: OLSON v. OLSON.

38 N.W.2d 32

76 N.D. 553

OLSON v. OLSON.

No. 7113.

Supreme Court of North Dakota

May 13, 1949

Rehearing Denied June 23, 1949.

Syllabus by the Court

1. A divorced wife who refuses to comply with an order respecting the custody of the children of the marriage, entered pursuant to the judgment of divorce, is not entitled to equitable relief by way of contempt proceedings to compel the payment of alimony awarded by the terms of the judgment.

Daniel S. Letnes and Philip R. Bangs, both of Grand Forks, for plaintiff and respondent.

Day Lundberg & Stokes, of Grand Forks, for defendant and appellant.

NUESSLE Chief Justice.

Plaintiff and defendant were married in 1937. In 1946 plaintiff brought an action for divorce on grounds of cruelty. Three children were born to the marriage, the youngest, a boy, and two girls. During the period of their marriage the parties acquired considerable property.

The trial of the cause was had and the court found for the plaintiff. On May 20, 1947 judgment was entered granting plaintiff an absolute divorce and awarding her substantial alimony in property and money. The greater part of the money portion thereof was to be paid in installments as follows: $1000 to be paid on or before December 1, 1947 $1000 to be paid on or before December 1, 1948, $1000 to be paid on or before December 1, 1949, and $1235 to be paid on or before December 1, 1950. The judgment further provided that the plaintiff should have a lien on all of the real property the defendant had or might thereafter acquire in the State of North Dakota as security for the payment of the above stated amounts. Custody of the children was awarded to the plaintiff subject to further order of the court and defendant was required to pay a substantial amount monthly for their care and maintenance. The judgment further provided that the plaintiff should not remarry within one year from May 20, 1947. However, on August 13, 1947, on plaintiff's application and after hearing, the court modified the order theretofore made to permit her to remarry at any time after that date. On October 9, 1947, the court amended the order with respect to the custody of the children and awarded the custody of the girls to the defendant with the right of visitation by their mother and the custody of the boy to his mother with the right of visitation by the defendant. Thereafter the plaintiff remarried.

The payment of the alimony required to be paid on December 1, 1947, was not made. On December 5 plaintiff procured an order directed to the defendant to show cause why he should not be adjudged in contempt on account of this default. Pursuant to this order a hearing was had on December 23. At this time it was agreed between plaintiff's counsel and defendant's counsel that this payment would be made on condition that the plaintiff release the lien imposed by the court on certain of his real property which the defendant desired to sell. At the same time the court made an order that the two girls in the custody of the defendant be given to their mother for the holiday season with the requirement that they be returned to the defendant on the 4th of January 1948. All of this was done rather informally and not pursuant to the hearing on the order to show cause. While there was no formal order made discharging the order the proceeding was in fact abandoned.

On December 26 defendant's attorney drew a sight draft on the defendant in favor of the plaintiff for $1050 in payment of alimony money required to be paid as of date December 1 and pursuant to the arrangement agreed upon on December 23. Thereupon plaintiff's attorney delivered a release of the lien on the real property the defendant desired to sell, and the sale was made. The sight draft was mailed to the plaintiff who was then in Minnesota. It was presented for payment on January 6. In the meantime the plaintiff had taken the girls to Minnesota and failed and refused to return them to the custody of their father. Defendant refused payment of the sight draft. He had however, prior to that time sent the plaintiff a check for $100 which the court later applied in reduction of the thousand dollar payment that was to have been made on December 1.

On March 18, 1948, plaintiff procured an order directed to the defendant to show cause why he should not be found in contempt because of his refusal to pay the thousand dollar payment ordered by the court and which he had agreed to pay in consideration of the release of plaintiff's lien. In response to this order defendant showed that the plaintiff had departed from the State of North Dakota and the jurisdiction of the court, had taken the children with her and refused both to return and thus make herself amenable to the court's order, and to bring the children back within the jurisdiction of the court. He alleged that because of this conduct on the part of the plaintiff he had refused to pay the sight draft when the same was presented and that otherwise he would have paid it.

The court considered the showing as made. He found that the plaintiff had the means to make the payment as ordered but had wilfully refused to do so and held that therefore defendant was in contempt. But he also found, and counsel for the plaintiff conceded the fact, that the plaintiff herself was in contempt on and from the 6th day of January 1948 because of her departure from the state with the children and her refusal to return them pursuant to the court's order. Notwithstanding the latter finding, the court ordered that the defendant be committed to the county jail of Grand Forks for a period of four months, but that the contempt should be purged on the payment of...