Richardson v. Richardson

• Decision Date: 30 June 1944
• Docket Number: No. 33660.,33660.
• Citation: 15 N.W.2d 127,218 Minn. 42
• Parties: RICHARDSON v. RICHARDSON.
• Court: Minnesota Supreme Court

15 N.W.2d 127

218 Minn. 42

RICHARDSON v. RICHARDSON.

No. 33660.

Supreme Court of Minnesota.

June 30, 1944.

Appeal from District Court, Ramsey County; Clayton Parks, Judge.

Proceeding by Marion P. Richardson against George E. Richardson for contempt in failing to make temporary alimony payments granted plaintiff by an order made during the pendency of her suit against defendant for divorce. From an order adjudging defendant in contempt and imposing sentence therefor, he appeals.

Reversed, without prejudice.

John D. Sullivan and William W. Fink, both of St. Paul, for appellant.

McMeekin & Quinn, of St. Paul, for respondent.

YOUNGDAHL, Justice.

Defendant appeals from an order adjudging him in contempt of court for failure to comply with a former order awarding plaintiff temporary alimony.

Plaintiff brought this action for an absolute divorce, custody of the parties' two children, alimony, and support money. On March 21, 1940, during the pendency of the suit, an order was made granting plaintiff temporary alimony. Defendant became delinquent in his payments, and at the time the final decree was entered he was $635 in arrears. Plaintiff was awarded judgment for this amount, which was incorporated in and became part of the final decree entered February 13, 1941, which also included an award for permanent alimony.

Previous contempt proceedings brought by plaintiff had not produced the desired results, the last of which resulted in a dismissal on June 29, 1943. She instituted the present proceedings on August 5, 1943, when an order was served upon defendant to appear and show cause why he should not be punished for contempt for failure to make the temporary alimony payments granted by the order of March 21, 1940. The result of the hearing on this order to show cause was defendant's conviction for contempt and his sentence of 90 days in the county jail. The propriety of the order adjudging defendant in contempt and imposing sentence therefor is questioned on this appeal. Among other grounds for reversal, defendant urges that contempt proceedings could not be founded upon his default in payment under the temporary order. Plaintiff disputes this contention and urges that the order for contempt included default under the final judgment and decree as well.

1. The order to show cause upon which defendant was brought before the court and adjudged guilty of contempt and sentenced was predicated solely upon his failure "to abide by and obey the terms and provisions of the temporary Order of this Court awarding the Plaintiff temporary alimony and support and maintenance for the minor children." The order adjudging him in contempt purports to include, by its language, default by the defendant in failing to make payments of permanent alimony granted by the final decree, as well as delinquencies in payment of temporary alimony under the order of March 21, 1940. The order adjudging defendant in contempt, insofar as it includes matters not responsive to the order to show cause, on which defendant was called into court, cannot be sustained, "for the manifest reason that it was not the charge which he was called into court to answer." State ex rel. Hurd v. Willis, 61 Minn. 120, 123, 63 N.W. 169, 170. Defendant adequately protected his record by objecting to the hearing on the ground that the order to show cause was based upon the temporary order, no longer in effect. If, therefore, an order adjudging him in contempt because of default under the temporary order could not lawfully be made after the entry of the final judgment and decree, the finding of contempt cannot be sustained.

2. It is our opinion that when the contempt proceedings were brought the order for temporary alimony had become merged in the judgment and decree of divorce, that it was no longer effective or enforceable, and therefore that contempt proceedings could not be based thereon. That conclusion is supported, in the first instance, by a consideration of the purpose of temporary alimony or support money pendente lite. The latter term, which is self-defining, means "during the pendency of the litigation" and is intended to provide support and maintenance for a wife and children during that period and until such time as a final adjudication is had of the property rights of the parties as expressed in the final decree of divorce. Minn.St.1941, § 518.14, Mason St.1927, § 8593; Muwinski v. Muwinski, 160 Minn. 477, 200 N.W. 465.

Except in those jurisdictions where the statutes and practice differ from ours as to the nature of an award of temporary alimony, it has been generally held that the entry of final judgment and decree of divorce supersedes an order for temporary alimony, and that temporary alimony does not continue after a dismissal, discontinuance, or abandonment of the action. McCaleb v. McCaleb, 177 Cal. 147, 169 P. 1023; Eldridge v. Eldridge, 278 Mass. 309, 180 N.E. 137; Tracy v. Tracy, 184 Ark. 832, 43 S.W.2d 539; Bowsky v. Silverman, 184 La. 977, 168 So. 121; Woods v. Woods, 236 Mo.App. 855, 159 S.W.2d 320; McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717; In re Matter of Fanning, 40 Minn. 4, 41 N.W. 1076; Cf. Wagner v. Wagner, 34 Minn. 441, 26 N.W. 450, as to the court's power to grant an allowance for counsel fees and expenses of litigation after dismissal of the divorce action; and Johnson v. Johnson, Minn., 14 N.W.2d 617, as to the effect of a stipulation of dismissal in a divorce action upon an attorney's lien subsequently filed.

Under § 518.14, supra, an order for the payment of temporary alimony is an intermediate and interlocutory order and is so generally considered. As such, it becomes merged in and disposed of by the final decree or judgment. The character and purpose of such order makes any other conclusion illogical. As stated in Walter v. Walter, 15 App.D.C. 333, 338:

"But alimony pendente lite being in all cases merely an incident and ex vi termini limited in its duration to the pendency of the proceedings, it necessarily comes to an end whenever the proceedings are finally...