Price v. Price
| Decision Date | 04 October 1926 |
| Docket Number | 11561. |
| Parties | PRICE v. PRICE. |
| Court | Colorado Supreme Court |
Error to Pueblo County Court; Frank G. Mirick, Judge.
Petition by Bertha E. Price for citation for contempt and writ of ne exeat, against J. Minor Price. To review the judgment whereby defendant was adjudged guilty of contempt, he brings error and applies for supersedeas.
Reversed and remanded, with directions.
George B. Campbell, of Denver, for plaintiff in error.
Danforth & Kavanagh, of Denver, for defendant in error.
This cause is before us upon an application for supersedeas to supersede a judgment whereby plaintiff in error was adjudged guilty of contempt for failure to pay accrued installments of permanent alimony. Other matters, hereinafter mentioned, are sought to be reviewed upon this writ of error.
The plaintiff in error was the defendant in an action for divorce which on June 11, 1910, resulted in a decree granting a divorce to plaintiff below and awarding her the custody of a minor child of the parties. The decree also provided that defendant pay to plaintiff as alimony the sum of $25 per month for the support of herself and the minor child.
On December 28, 1925, the plaintiff, then residing at Seattle Wash., filed, in the original case, a petition for citation for contempt and for a writ of ne exeat. The petition alleged:
'That ever since the entering of said alimony order defendant has refused and still refuses to pay the same or any part thereof, and nothing has ever been paid by defendant thereunder, either for the support of plaintiff or said minor child, notwithstanding demand.'
On the hearing, the court limited plaintiff's recovery in this proceeding to what, it seems, the court regarded as recoverable for the use and benefit of the minor child. At the conclusion of the hearing, the court said:
'The court is going to apply $12.50 a month for the use and benefit of this child.'
The judgment afterwards entered provides that the plaintiff recover $1,875 for the use and benefit of J. Minor Price Jr., the child. This seems to be an allowance of $12.50 per month for a period of 12 1/2 years.
The plaintiff in error contends that the judgment in this proceeding should not have been rendered because of the laches of plaintiff below.
This proceeding in contempt, having been instituted after the lapse of more than 15 years from the date of the decree in the action for divorce, so far as concerns alimony for the support of the wife only, plaintiff is barred by laches. 19 C.J. 298. No recovery was allowed to the wife, in this case, for her own benefit. The question is however, whether plaintiff is barred by laches from recovering alimony solely for the support of the minor child. The defendant in error, plaintiff below, cites the doctrine that laches cannot be imputed to an infant, and also refers to the law relating to the support and maintenance of an infant. This does not solve the question. If, as in the instant case, the wife for a long period of time supports the child without receiving alimony, where the husband had been ordered to pay alimony for the support of the child, and she afterwards recovers the arrears of alimony, such recovery is her own recovery and not that of the child. The recovery amounts simply to a reimbursement of the wife. She is the one who reaps the benefit. For that reason the laches of the wife ought to be applied against her as in cases where an ordinary recovery of money is sought, or as in cases where the arrears in alimony relate to alimony for her own support.
We find no case similar to the instant case, but the expressions found in other cases are in accord with the views above indicated. Thus in Ashby v. Ashby, 174 Wis. 549, 183 N.W. 965, it appears that the lower court refused to punish a defendant for contempt, in a case of this kind, after there had been a delay of over 40 years, but gave an ordinary judgment for the greater part of the arrears. In the opinion of the appellate court appears the following language:
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In re Kann
...544, 545 (1958) (combined support); Hamilton v. Hamilton , 104 Colo. 615, 618-19, 94 P.2d 127, 128 (1939) (same); Price v. Price , 80 Colo. 158, 160, 249 P. 648, 649 (1926) (same); In re Marriage of Meisner , 807 P.2d 1205, 1207 (Colo. App. 1990) (child support).¶ 13 Those cases have held t......
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