Parker v. Parker, s. 11796

• Decision Date: 31 October 1975
• Docket Number: Nos. 11796,11858,s. 11796
• Parties: Louise S. PARKER, Plaintiff-Respondent, v. Fred PARKER, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1177

541 P.2d 1177

97 Idaho 209

Louise S. PARKER, Plaintiff-Respondent, v. Fred PARKER, Defendant-Appellant.

Nos. 11796, 11858.

Supreme Court of Idaho.

Oct. 31, 1975.

Lloyd J. Webb of Webb, Pike, Burton & Carlson, Twin Falls, for defendant-appellant.

Phillip M. Barber of Elam, Burke, Jeppesen, Evans & Boyd, Boise, for plaintiff-respondent.

BAKES, Justice.

A prior opinion in this case was issued on May 16, 1974. Parker v. Parker, 95 Idaho 876, 522 P.2d 788. That opinion considered the appeal of the defendant appellant Fred Parker concerning the division of the community property contained in the judgment and decree of the trial court granting divorce to the plaintiff respondent Louise Parker. We affirmed the trial court in part and reversed it in part and remanded the cause to the trial court for further proceedings. On June 14, 1974, Fred Parker's petition for rehearing was denied.

Based upon that remand, Louise Parker moved the trial court on October 2, 1974, (1) for entry of final judgment, (2) that Fred Parker be found in contempt for failure to pay previously awarded attorney fees and alimony, and (3) for the costs of brining the motion, including attorney fees. Her attorney filed an affidavit accompanying the motion in which he averred that Fred Parker had been ordered to pay $1,000 in attorney fees for the costs of defense of the appeal we decided in 1974 and that Fred Parker had been ordered to pay $250 per month as alimony, but that Fred Parker was in arrears in the amount of $500 in attorney fees and had not paid alimony for the months of August, September and October of 1974. The affidavit contained no allegation that Fred Parker was able to pay the amounts in question or that he had been given notice that he had been ordered by the court to do so. The district court granted the motion in part on October 17, 1974, and entered judgment upon remand decreeing the divorce and dividing the community property. On October 22, 1974, it ruled upon the remaining portions of the motion and found Fred Parker in contempt of court for failure to pay the $500 in attorney fees, ordered him to pay the $500 in attorney fees, ordered him to pay $750 in alimony (representing $250 for each of the months of August, September and October, 1974), and ordered him to pay $300 in attorney fees for the prosecution of the contempt and alimony proceedings which were the subject of the October 22, 1974, order. Fred Parker appealed from the October 22, order on December 3, 1974. The appeal from that order is Case No. 11796.

On December 9, 1974, Louise Parker moved the trial court for attorney fees pending appeal for the costs of defending Case No. 11796. On December 27, 1974, the district court granted her motion and allowed another $1,000 as attorney fees. Fred Parker appealed from that order, and that appeal is Case No. 11858.

Three months later Louise Parker filed a 'motion to dismiss, or, to augment the record.' We issued an order holding her motion to dismiss the appeals in abeyance pending a hearing on the merits and granting her motion to augment the record. The record was augmented. Argument was heard on the merits of the appeals and upon the motion to dismiss. We deny the motion to dismiss and reach the merits of the appeals, affirming No. 11796 and reversing No. 11858.

The Motion to Dismiss:

Louise Parker argues that Fred Parker failed to comply with the requirements of I.C. § 13-213 ¹ and appellate rule 35 ² in that he did not furnish the court with copies of all of the papers used in the hearings below, nor did the records upon appeal contain certificates that they constituted all of the records, papers and files considered by the district judge in the hearings below. The records furnished by the appellant Fred Parker did not comply with the requirements of I.C. § 13-213 and appellate rule 35. However, i.C. § 13-217 ³ and appellate rule 31 ⁴ do not require us to dismiss these appeals and preclude us from reaching the merits for that reason. Both the statute and the rule provide that this Court may, rather than shall, dismiss an appeal for failure to comply with the requirements concerning the transcript and record. Although we have the authority to dismiss the appeals for failure to comply with these technical requirements, Scheel v. Rinard, 91 Idaho 736, 430 P.2d 482 (1967), in this case we decline to do so. E. g. Mollendorf v. Derry, 95 Idaho 1, 501 P.2d 199 (1972).

Appeal in Case No. 11796:

The following is Fred Parker's first assignment of error:

'The court erred in entering the Order of October 22nd, 1974, insofar as it finds the Appellant in contempt of court for failure to pay alimony, in that no alimony had been ordered for the periods of time complained of, and in that there was no appropriate accusation of contempt, no evidence of contempt and no appropriate finding of contempt.' Appellant's Brief, p. 4.

The order of October 22, 1974, however, did not find fred Parker in contempt for failure to pay alimony. The order of October 22, 1974, reads, in pertinent part, as follows:

'Now, therefore, it is herewith ORDERED, ADJUDGED AND DECREED:

'1. That the Defendant, Fred Parker, is in contempt of this Court for failure to pay $500.00 in attorneys fees heretofore ordered. Defendant is ordered to immediately pay to the firm of Elam, Burke, Jeppesen, Evans & Boyd, the sum of $500.00 presently in default.' (Clk.Tr., No. 11796, p. 9).

Although Fred Parker's first assignment of error refers to his being found in contempt for failure to pay alimony, his statement of the case in his brief and his argument in his brief both refer to his having been found in contempt for failure to pay the attorney fees that he had been ordered to pay. Thus, we think it is clear that Fred Parker has appealed from the order of the court finding him in contempt for failure to pay attorney fees and construe his assignment of error to that effect.

' An order holding a person in contempt is not an appealable order under I.C. § 7-614.' Glenn Dale Ranches, Inc. v. Shaub, 95 Idaho 853, 853, 522 P.2d 61, 61 (1974). The decisions of the Court for many years have held that a writ of review, rather than appeal, is the proper method of securing review of a contempt order. ⁵ However, this Court has been given plenary power under Article 5, § 9, of the Idaho Constitution 'to review, upon appeal, any decision of the district courts or the judges thereof, . . .' (Emphasis added). Thus, although Fred Parker cannot appeal as a matter of right from that part of the order holding him in contempt, this Court nevertheless may in its discretion consider such an appeal from the district court. State v. Lewis, 96 Idaho 743, 536 P.2d 738 (1975); see Jones v. Jones, 91 Idaho 578, 428 P.2d 497 (1967) (Taylor, C. J., concurring specially). In the interests of the final disposition of the issues which this portracted divorce proceeding has presented, we have decided to entertain this appeal from the contempt order.

The ruling holding Fred Parker in contempt is affirmed, even though the affidavit accompanying the motion to hold him in contempt failed to allege that he had notice of the order requiring him to pay $1,000 in attorney fees and failed to allege that he had the ability to pay the $500 due. Although (1) knowledge of the order which the contemner has allegedly failed to obey is an essential element of contempt, and (2) a petition to hold a person in contempt should be dismissed when the affidavit accompanying it does not allege this element of contempt, 'if a contemner does not raise the defense of failure to allege knowledge of the order by motion at the trial stage, and all of the essential elements of the contempt, including that knowledge, are proved by evidence at the trial, then the sufficiency of the initiating affidavit may not be raised for the first time on appeal.' State v. Palmlund, 95 Idaho 150, 153-154, 504 P.2d 1199, 1202-1203 (1972).

The augmented record shows that the order to pay $1,000 in attorney fees was issued December 17, 1973, and that on March 14, 1974, at a hearing to show cause in re contempt for failure to comply with the December 17, 1973, order, Fred Parker stipulated to being in contempt of court for failure, among other things, to pay $500 of the $1,000 in attorney fees that he had been ordered to pay. Thus, the record shows that Fred Parker had knowledge of the order, and under the rule of Palmlund, the failure to allege his knowledge of the order in the affidavit accompanying the petition to find him in contempt 'may not be raised for the first time on appeal.' 95 Idaho at 154.

But Fred Parker further argues that a necessary element of contempt, the ability to comply with the order, was neither alleged in the affidavit nor shown at the hearing on the motion. However, '(t)he ability of one charged with contempt for disobedience of an order to comply therewith need not, under most authorities, be alleged in the initiatory affidavit or complaint, although there is authority to the contrary.' 17 C.J.S. Contempt § 72(2), p. 187 (footnotes omitted). It is not uncommon in divorce actions that pending the final property settlement the husband has control of the community property and the wife is unaware of what assets the husband has available for payment of the attorney fees and alimony he has been ordered to pay. If the husband has failed to make the payments that were ordered, and the wife is honestly unaware of whether he has the ability to make the payments and cannot ascertain his ability to pay with reasonable diligence, she could not truthfully aver in her affidavit that she believes he has the ability to comply with the order. In such cases, to require the wife to so allege in her affidavit accompanying the motion in order to hold the husband in contempt for failure to comply with the orders of the court would present the wife with the dilemma of either (1) perjuring herself by averring that she...