Osmus v. Osmus

• Decision Date: 14 October 1948
• Docket Number: 7152
• Citation: 114 Utah 216,198 P.2d 233
• Court: Utah Supreme Court
• Parties: OSMUS v. OSMUS

198 P.2d 233

114 Utah 216

OSMUS v. OSMUS

No. 7152

Supreme Court of Utah

October 14, 1948

Appeal from District Court, Third District, Salt Lake County; J Allan Crockett, Judge.

Suit for divorce by Faye Walker Osmus against Harry Osmus, wherein the plaintiff was awarded a decree a divorce requiring defendant to pay alimony of $100 a month and $150 a month for support of the three children of the parties. From a judgment holding the defendant in contempt of court for failure to pay alimony as required by the divorce decree, the defendant appeals.

Judgment affirmed.

C Vernon Langlois, of Salt Lake City (Ray S McCarthy, of Salt Lake City, of counsel), for appellant.

Benjamin Spence, of Salt Lake City, for respondent.

Wolfe, Justice. McDonough, C. J., and Latimer, J., concur. Pratt, Justice (concurring in the result). Wade, Justice (concurring in the result).

OPINION

Wolfe, Justice.

Appeal by the defendant from an order and judgment of the Third District Court holding defendant in contempt of court for failure to pay alimony as required by the terms of an interlocutory divorce decree entered by that court, and from the court's order denying defendant's petition for modification of the alimony decree. The parties are referred to as they appeared in the court below.

The undisputed facts are that the plaintiff and defendant were married in March, 1940 and that three children, all of whom are now living, were born to them. On March 14, 1947, plaintiff commenced an action against defendant for separate maintenance, and on July 15, 1947, the parties entered into a stipulation whereby defendant agreed to pay to plaintiff $ 100 per month as alimony and support money, payable $ 25 per week, and the further sum of $ 50 for attorney's fees. Pursuant to that stipulation, Hon. Roald A. Hogenson, judge of the Third District Court, signed an order providing for payment of temporary alimony and support money as stipulated.

On October 7, 1947, plaintiff filed her second amended complaint wherein she prayed for a divorce and alimony in the sum of $ 250 per month, and on the same day defendant filed his appearance and consent that his default might be entered forthwith, upon the condition that the alimony and support money to be awarded should be not more than the total amount of $ 250 per month. The matter was heard upon the same day, and the court granted plaintiff an interlocutory decree of divorce, providing for alimony in the sum of $ 100 per month and $ 50 per month support money for each of the three children, or a total of $ 250 per month.

Defendant paid plaintiff $ 50 in October, but made no other payments between the time the interlocutory decree was entered and December 18, 1947, when defendant was served with an order to show cause why he should not be punished for contempt, for failure to make the payments of alimony and support money required by the interlocutory decree. At about the same time defendant filed a petition for modification of the alimony decree. The two matters were heard at the same time. The evidence at the hearing was as follows:

Defendant testified that he was and always had been a fry cook; that up to February 15, 1947, he had been employed by one D. F. Anderson on a profit-sharing arrangement whereby he earned about $ 800 per month; that on that date (about a month before plaintiff first filed suit against him) his employment with Anderson terminated; that between February 15th and May 16th he had not worked at all; that on the last mentioned date he went to work for Mrs. Theo. Carlson, who operated an eating establishment on south State Street; that all that he received from his employment was board and room, and spending money to an amount not to exceed $ 1 per day; that Mrs. Carlson's business had not, up to that time been profitable, but that it was hoped and expected that it would eventually become profitable; that when it did become profitable and Mrs. Carlson had recouped her capital investment, defendant was to receive a fifty per cent interest in the business.

Defendant further testified that the prevailing wage scale for fry cooks was $ 8 per day; that union men worked five and non-union men worked six days a week; that he had not attempted to secure employment as a fry cook because he had several bills outstanding, and he feared that if he accepted employment for wages that his wages would be garnisheed, and for the further reason that he expected that Mrs. Carlson's business could be built up to a very profitable business, and that he would then be in a much better financial position than he would be if he were working for wages.

He testified that he stipulated to the sum of $ 250 per month as alimony and support money upon the advice of his attorney, who had assured him that such amount could later be reduced to an amount consistent with his ability to pay. (It should be noted here that counsel for both parties in the present proceedings are not the same counsel who represented them in the original divorce proceedings.) Defendant also admitted that he was more interested in Mrs. Carlson than he was in his own welfare.

Plaintiff testified that prior to the time the divorce proceedings were commenced, she and her husband had contracted to purchase a home; that the home was in her name; that she sold the equity in the home for $ 5,000; that she used $ 2,000 as a down payment on a home, and used up the balance of the $ 3,000 for living expenses for herself and her family; that the entire $ 5,000 was exhausted in October, 1947, and during November and December, plaintiff had had to have financial aid from the County Welfare Department.

Mrs. Theo. Carlson substantially corroborated the testimony of defendant as to the terms of his employment by her.

Four assignments of error are raised by defendant, but only two substantial questions are involved:

1. Did the court err in finding defendant in contempt of court for failure to make the payments of alimony and support money during the months of October, November, and December, 1947, as required by the terms of the interlocutory divorce decree?

2. Did the court err in denying defendant's petition for modification of the decree in respect to alimony and support money?

We shall consider the questions in the order stated.

There is no dispute between the parties that "it is a prerequisite in contempt proceedings of the nature here under review to an order committing to jail that the one charged should be found able to comply with the court's order or that he had intentionally deprived himself of the ability to comply with such order." (Italics added.) Hillyard v. District Court, 28 Utah 220, 249 P. 806, 809.

The question which divides the parties is whether there was evidence to support the court's finding of fact No. 5that defendant

"is still able, with a reasonable effort to earn sufficient to comply with the terms of said decree, but disregarding the order of the court and decree herein, has wilfully failed and neglected to find employment or seek employment or earn money with which to meet his obligations under said decree; * * *"

There is no conflict in the testimony that during the months in question the defendant worked for Mrs. Carlson for board and room and received in addition thereto a small amount of cash for spending money. It is likewise undisputed that defendant had not attempted to secure employment at regular wages. The reason or excuses he gave for not so doing were these:

(1) He knew that his wife, plaintiff, had received $ 5,000 for the equity in the home, and he did not think that she had immediate need for the alimony and support money.

(2) That he anticipated in the "long run" it would be to his financial advantage to stay with Mrs. Carlson and have a one-half interest in her business.

(3) That he had bills outstanding in the total sum of about $ 366 and he feared that creditors would garnishee his checks if he took a job for wages.

The fact that plaintiff received $ 5,000 for the equity in the home did not excuse the defendant from complying with the order of the court. The existence of independent means might be a factor to be considered by the court in fixing alimony, or in considering a petition for modification of a decree, or perhaps, under certain circumstances, in mitigation of punishment for contempt. But no discretion is left, to a divorced husband, to determine whether he should or will comply with an alimony decree. So long as such decree stands, it is incumbent upon him to comply with it, or at least to exercise every reasonable effort to comply with it. If because of change in the circumstances of the parties it appears that the decree is inequitable, or impossible to comply with, he may petition for modification. But so long as that decree stands, the husband must comply with it, or make every reasonable effort to do so, and this is true regardless of how the financial situation of his former wife may have improved. Any failure to comply or to make a reasonable effort to comply is contempt, and punishable as such.

Nor does a man have a right to sacrifice the present needs and welfare of his family, and particularly of his infant children, to the end that at some indefinite future time he may better his own financial status. His first duty is to provide for those whom he is legally and morally obligated to support, and if it becomes necessary for him to forego business opportunities with bright future prospects but with no present realization, in order to perform his obligations the law, in the absence of exceptional circumstances, will require him so to do. From all the evidence and all the fair inferences therefrom, the court could reasonably find that defendant...