State ex rel. Adams v. Superior Court of State, Pierce County

• Decision Date: 01 August 1950
• Docket Number: 31187.
• Citation: 36 Wn.2d 868,220 P.2d 1081
• Parties: STATE ex rel. ADAMS, v. SUPERIOR COURT OF THE STATE, PIERCE COUNTY.
• Court: Washington Supreme Court

220 P.2d 1081

36 Wn.2d 868

STATE ex rel. ADAMS, v. SUPERIOR COURT OF THE STATE, PIERCE COUNTY.

No. 31187.

Supreme Court of Washington, en Banc.

August 1, 1950

Bannon, Soule & Krilich, Tacoma, for appellant.

Arthur R Paulsen, Tacoma, for respondent.

GRADY, Justice.

This proceeding was brought in this court to secure an order prohibiting the superior court of Washington for Pierce county from taking further action to adjudge relator to be in contempt for that court for disobedience of one of its orders. Upon the filing and presentation of the affidavit of relator this court issued a show cause order. No answer to the affidavit has been filed by respondent, but an appearance has been made by his counsel by a brief and oral argument.

Rem.Rev.Stat § 1023, provides that if no answer be made to an application for a writ of prohibition 'the case must be heard on the papers of the applicant'. In State ex rel. Ins. Co. v. Superior Court, 14 Wash. 203, 44 P 131, we decided that if a respondent did not answer in the manner required by statute the writ must issue if the facts set up in the application were sufficient to authorize it.

The factual situation disclosed in the affidavit of the relator and the exhibits made a part thereof is as follows: On March 24 1947, Mildred D. Adams commenced an action in the superior court of Washington for Pierce county against the relator to obtain an interlocutory order of divorce. In her complaint she prayed that she be granted the care, custody and control of two minor children; that she be awarded certain described real estate and household furniture; that relator be awarded certain personal property and be required to contribute $100 towards her attorney's fees, and costs. Prior to the entry of the interlocutory order, the trial judge inserted in the prayer of the complaint the following: 'that defendant pay plaintiff $2000.00 at $50.00 per mo., first payment Aug. 1st, 1947', and also in that order the words: 'Ordered that defendant pay plaintiff $2000.00 at $50.00 per month, first payment August 1st, 1947.' The relator did not make any payments pursuant to the order. On June 23, 1949, the court entered an order directing relator to appear Before it at a time stated and show cause why he should not be found to be in contempt for his failure to comply with the interlocutory order. The relator appeared specially challenging the jurisdiction of the court to conduct contempt proceedings, and asked orally that the order to show cause be quashed. The request was denied.

The record shows that the summons and complaint were personally served upon relator in Pierce county. No notice was given to relator that any additional relief to that asked for in the complaint served upon him would be sought or given by the court, and he was not given an opportunity to be heard thereon.

Two questions are presented: (1) Was the sum of money ordered to be paid a property award, or an award of alimony and maintenance, and (2) did the court have jurisdiction to give relief to the plaintiff other than as prayed for in her complaint.

If the award of $2,000, payable at the rate of $50 a month, was intended by the court to be an additional property award, or an ordinary money judgment, the relator would not be in contempt of court for failure to make the payments provided; but if it was intended to be an award of alimony, or for the support and maintenance of the minor children, the court would have the power to adjudge the relator to be in contempt for a disobedience of its order. In re Van Alstine, 21 Wash. 194, 57 P. 348; In re Cave, 26 Wash. 213, 66 P. 425, 90 Am.St.Rep. 736; Boudwin v. Boudwin, 162 Wash. 142, 298 P. 337; State ex rel. Ridenour v. Superior Court, 174 Wash. 152, 24 P.2d 418; State ex rel. Lang v. Superior Court, 176 Wash. 472, 30 [220 P.2d 1084] P.2d 237; State ex rel. Foster v. Superior Court, 193 Wash. 99, 74 P.2d 479.

In some of our cases we have stated that the award must be for 'alimony as such' in order that it may be enforced by contempt proceedings. We do not consider it was meant that the word 'alimony' necessarily had to be used. It is sufficient if the fair import of the language clearly indicates the court intended the award was for alimony or maintenance. The court made a division of all of the property belonging to the parties which had been brought into the case and made a money award to apply on attorney's fees. When reference is made to a property award it generally relates to existing real, personal or mixed property over which the court has acquired jurisdiction, and which under our statute must be equitably distributed. What the court really did here was to order the relator to pay to the plaintiff the sum of $50 a month until he had paid her the sum of $2,000. This was not a money judgment. Such a judgment determines an amount owing. A decree for alimony or maintenance directly commands the payment of money. Davis v. Davis, 15 Wash.2d 297, 130 P.2d 355.

In our consideration of the jurisdictional question, we find a very similar situation to the one Before us was presented in Ermey v. Ermey, 18 Wash.2d 544, 139 P.2d 1016. We held that a defendant has a right to allow a default to be taken against him secure in the knowledge that the judgment or decree will not exceed the demand of the complaint. The principle upon which such a rule rests is that the court is without jurisdiction to grant relief beyond that which the allegations and prayer of the complaint may seek. If upon the hearing of the matter Before the court the complaining party desires additional relief, or if the court feels that other or additional relief should be awarded, the defendant is entitled to have notice given to him and an opportunity to be heard on the merits thereof; otherwise he is denied procedural due process of law in violation of § 3, art. I, of our constitution. In re Groen, 22 Wash. 53, 60 P. 123; Morley v. Morley, 131 Wash. 540, 230 P. 645; In re Hendrickson, 12 Wash.2d 600, 123 P.2d 322, 325. In the latter case we said: 'The essential elements of the constitutional guaranty of due process, in its procedural aspect, are notice and an opportunity to be heard or defend Before a competent tribunal in an orderly proceeding adapted to the nature of the case.'

We cited by C.J.S., Constitutional Law, § 569c (2), p. 1153; 12 Am.Jur. 267, § 573. A judgment entered without notice and opportunity to be heard is void. State ex rel. First Nat. Bank, etc. v. Hastings, 120 Wash. 283, 207 P. 23, 31. In that case we said: 'It is elementary law that a default judgment cannot award any relief beyond that which the facts alleged in the complaint in the action show the plaintiff legally entitled to. This also means, of course, that, if a complaint wholly fails to state facts legally entitling the plaintiff to any recovery, or states facts affirmatively showing that the plaintiff has no right of recovery, as those complaints did, a default judgment rendered thereon is void just as such a default judgment would be void in so far as it awarded relief beyond that which the allegations of the complaint should the plaintiff legally entitled to.'

It will be noted from the above quotation and the tenor of the remainder of the opinion on the subject there are two situations in which a default judgment may be void: (1) if the complaint states facts affirmatively showing that the plaintiff has no right of recovery, or (2) if the complaint lacks those averments which are necessary to show his right to recover. The complaint in the case at bar contained no allegations showing a need for alimony, or inability on the part of the plaintiff to support and maintain the minor children, and did not pray for any such relief.

Rem.Rev.Stat. § 988, and Rem.Supp.1947, § 988, provide in part as follows: 'If, however, the court determines that either party, or both, is entitled to a divorce an interlocutory order must be entered accordingly, declaring that the party in whose favor the court decides is entitled to a decree of divorce as hereinafter provided; which order shall also make all necessary provisions as to alimony, costs, care, custody, support and education of children and custody, management and division of property, * * *.'

If it was meant by the statute that the court might divide property, or order the payment of alimony, or provide for the care, support and education of children in addition to the content of the complaint and its prayer when a defendant has not appeared and is in default, it would run counter to the due process clause of the constitution above referred to, and we therefore cannot adopt any such construction of the statute. The statute applies to the subject matter brought Before the court by the complaint, or as the complaint may be amended if a general appearance has been made by the defendant by an answer.

Our attention has been called to Ackerman v. Ackerman, 32 Wash.2d 53 200 P.2d 527, which contains a paragraph in conflict with our holding in Ermey v. Ermey, supra. What was said in that paragraph was not necessary to a decision of the questions befor the court. We were considering whether a property settlement agreement in which the defendant promised to pay his wife money for her support and maintenance in the event of a divorce, and which was made a part of the complaint, could be made a part of the interlocutory order on default of the defendant. When we decided that the order was valid and resort could be had to garnishment proceedings to collect the unpaid installments of the award that disposed of the case. We did not discuss or decide the question whether contempt proceedings would lie. We were not called upon to decide the question involved in Ermey v. Ermey, and do not regard ...