Sauvageau v. Sauvageau

• Decision Date: 19 July 1938
• Docket Number: 6569
• Citation: 59 Idaho 190,81 P.2d 731
• Parties: MARTHA SAUVAGEAU, Respondent, v. ARCHIE SAUVAGEAU, Appellant
• Court: Idaho Supreme Court

81 P.2d 731

59 Idaho 190

MARTHA SAUVAGEAU, Respondent, v. ARCHIE SAUVAGEAU, Appellant

No. 6569

Supreme Court of Idaho

July 19, 1938

DIVORCE-DENIAL OF DIVORCE-MAINTENANCE OF WIFE AND MINOR CHILD-CUSTODY OF CHILDREN.

1. A court denying divorce decree nevertheless has jurisdiction to direct payment of maintenance and support for wife who is separated from husband and for minor children, and of attorney's fees.

2. Orders directing payment of maintenance and support for a wife and minor children are subject to court's control and do not become final.

3. Orders for payment of maintenance and support of wife and minor children may be enforced in contempt or other appropriate proceedings.

4. Each parent is liable in law for the support and maintenance of minor children.

5. In divorce suit, custody of the children must be determined by the best interests of the children.

6. In divorce suit, the mother is considered the best qualified to have custody of children of tender age and of young girls all other things being equal.

7. A complaint alleging grounds for divorce and praying for custody of the children and disposition of property rights is sufficient basis for decree of separate maintenance and custody of children when divorce is denied.

8. A husband who appealed from decree awarding maintenance and support of wife and children, who was apparently unable to pay a reasonable attorney's fee, would nevertheless be required on affirmance of the decree to pay enough to cover costs, clerical and office expense of wife's attorney.

APPEAL from the District Court of the Eighth Judicial District, for Benewah County. Hon. Ed. S. Elder, Judge.

Action for divorce and custody of minor children. Decree denying plaintiff divorce, with order awarding custody of oldest boy to defendant, and the youngest to plaintiff; and awarding maintenance for wife and child. Defendant appeals. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Wm. D Keeton, for Appellant.

In the case of Benson v. Benson, 45 Utah 514, 146 P. 564 the facts are very similar to this case. An action was brought for divorce on the ground of cruelty. The divorce was denied. The court attempted to make orders and a judgment affecting the property. The court held that the property rights were incidental to the divorce. (Houston v. Timmerman, 17 Ore. 499, 21 P. 1037, 11 Am. St. 848, 4 L. R. A. 716; Alexander v. Alexander, 140 Ind. 560, 40 N.E. 55, 56 (March, 1895); Garnett v. Garnett, 114 Mass. 347; Redding v. Redding, (N. J. Ch.) 85 A. 712 (Dec., 1912); Weigel v. Weigel, 60 N.J. Eq. 322, 47 A. 183; Bensen v. Bensen, 20 Cal.App. 462, 129 P. 596; Volkmar v. Volkmar, 147 Cal. 175, 81 P. 413.)

W. B. McFarland, for Respondent.

Under the laws of the state of Idaho, the district courts of the state have the power to award custody of the children in a divorce action where the prayer for divorce was denied if the pleadings and evidence justify such relief. (Const. of Idaho, art. 5, sec. 1; secs. 1-707, 31-1007, I. C. A.; Blackburn v. Moore, 206 Ala. 335, 89 So. 745; 31 C. J. 993; Green v. Green, (Tex.) 146 S.W. 567; Horton v. Horton, 75 Ark. 22, 86 S.W. 824, 5 Ann. Cas. 91; Mollring v. Mollring, 184 Iowa 464, 167 N.W. 524.)

AILSHIE, J. Holden, C. J., and Morgan, Budge and Givens, JJ., concur.

OPINION

AILSHIE, J.

This action was commenced by respondent against appellant for a decree of divorce and custody of their two minor children, on the grounds of cruelty. The court found in favor of respondent on all the issues, except that he found the evidence insufficient "to sustain the allegation of the complaint that for more than six weeks immediately preceding the commencement of the action, plaintiff was a resident of the State of Idaho"; and apparently on that ground the court denied the respondent a decree of divorce. He entered decree, however, awarding the custody of the oldest boy (about ten years of age) to the appellant and the custody of the youngest (about five years of age) to respondent; and providing that each should have the privilege of visiting the child in the custody of the other at reasonable times, and that the children might be kept together during the months of July and August, one parent having them one month and the other the following month. The court further ordered that appellant pay to respondent the sum of $ 25 a month to assist in the maintenance of herself and minor child and that he also pay $ 12.40 costs and $ 50 attorney's fees.

Respondent did not appeal and the judgment denying her a decree of divorce has become final. The appellant appealed from that part of the judgment entered against him. This case not being ready to set for hearing at the last Coeur d'Alene term, respondent moved the court for an order advancing the case and setting it for hearing at the June term at Coeur d'Alene, and at the same time made a motion for an order directing the payment of reasonable attorney's fees for presenting the case on appeal. Appellant immediately countered with a motion to extend his time to prepare, serve and file his brief on appeal. After fully considering the matter, the court ordered the hearing on the case with permission to appellant to file his brief later, and respondent to reply if she desired to do so. Briefs have now been filed and we should observe, in the outset, that it appears that appellant is in contempt of the district court for failure to comply with the order and judgment of the court, requiring him to pay attorney's fees and monthly support and maintenance for the wife and child. Under such circumstances, it is doubtful if the appellant would be entitled to a hearing on appeal until he either complies with the order or purges himself of contempt; but we are not passing on that question (Vollmer v. Vollmer, 43 Idaho 395, 399, 400, 253 P. 622; Bedke v. Bedke, 57 Idaho 443, 449, 65 P.2d 1029) for the reason that the respondent is the one in whose favor the order was made and she is the one who applied to the court to set the case down for hearing on its merits.

Eleven assignments of error have been made but they all reduce themselves to one proposition, as said in appellant's brief: "The assignment of errors can be generally considered together without taking each up separately." Counsel for appellant further says:

"It is my position that when the court found he did not have jurisdiction of the subject matter and denied the divorce, there was nothing to do but dismiss the action and enter judgment accordingly. . . . In this case, there is no action pending. The divorce has been denied, the denial of the divorce has not been appealed from and the question before the court has to do with the right of the court to award children, grant alimony and make other decisions which are only incidental to the main action--the relief in the main action having been denied."

The whole issue, as presented and contended for by appellant, is: That if the trial court denies a decree of divorce, it is without further jurisdiction to make or enter any order for the care or custody of the children or the maintenance of the wife. This controversy has long since become a settled question in this jurisdiction. In Simonton v. Simonton, 33 Idaho 255, 262, 193 P. 386, this court said:

"It is next urged by respondent that recovery is based upon an order of court in 1893, directing payment for the support of appellant and minor children, made not pending the trial of the action, but inserted in the final judgment entered after the trial at the final determination of the action. If we understand respondent's contention in this connection correctly, it is that since no divorce was granted, the court was without authority to make an order for alimony, and that therefore the judgment, exceeding the statutory authority, is void on its face.

"While there are conflicting decisions upon this point, the weight of authority holds that courts of equity have inherent jurisdiction to award separate maintenance for the support of the wife and minor children independent of any action for divorce and independent of any statutory provision. (1 R. C. L., 875-881, secs. 14-19, inclusive, where the history of the rule is exhaustively reviewed.) In this state, a suit for separate maintenance may be maintained by a wife, based on C. S., sec. 4654. (Sec. 31-901, I. C. A.) (Galland v. Galland, 38 Cal. 265; Livingston v. Superior Court, 117 Cal. 633, 49 P. 836, 38 L. R. A. 175.)"

In Vollmer v. Vollmer, 47 Idaho 135, 147, 273 P. 1, the court approved the Simonton case and said:

"Under points and authorities No. 5, the appellant cites authorities to the effect that separate maintenance cannot be awarded in the absence of conditions authorizing a divorce, and that the court therefore erred in awarding separate maintenance. This point is nowhere made in the assignments of error, unless it be in the assignments going to the jurisdiction of the court to allow attorney's fees and costs, or the general assignment of error in the judgment in allowing separate maintenance. This court has determined that 'courts of equity have inherent jurisdiction to award separate maintenance for the support of the wife and minor children independent of any action for divorce and independent of any statutory provision.' Simonton v. Simonton, 33 Idaho 255, 262, 193 P. 386, 388."

The Simonton case was again followed in Walker v. Manson, 49 Idaho 468, 474, 289 P. 86, wherein the court said:

"Simonton v. Simonton, 33 Idaho 255, 193 P. 386, held under C. S.,...