State ex rel. Bassett v. Bassett

• Decision Date: 13 May 1941
• Citation: 113 P.2d 432,166 Or. 628
• Parties: STATE EX REL. BASSETT <I>v.</I> BASSETT
• Court: Oregon Supreme Court

166 Or. 628

113 P.2d 432

STATE EX REL. BASSETT

v. BASSETT

Supreme Court of Oregon.

Argued April 15, 1941.

Reversed May 13, 1941.

Objections to cost bill sustained June 24, 1941.

Contempt — Waiver of objections

1. Where defendant in contempt proceeding responded to citation by filing affidavit and presented defense on the merits, defects in process were "waived" and could not be raised for first time on appeal.

Contempt — Jurisdictional facts

2. In contempt proceeding, affidavit, which is regarded as the initiatory pleading, confers jurisdiction on court if it sets forth the facts constituting the contempt, and the court, in its discretion, may issue order to show cause or may allow issuance of order of arrest in the first instance.

Divorce — Courts — Jurisdiction

3. In contempt proceeding for refusal to comply with divorce decree requiring defendant to contribute to support of children, court acquired jurisdiction where affidavit, a copy of which was served on defendant with citation, set forth facts constituting the contempt and was clearly sufficient to charge defendant, who had been personally served with process in divorce suit, with willful disobedience of court's decree.

Contempt — Appearance — Defense

4. Where affidavit in contempt proceeding set forth facts constituting the contempt and advised defendant of nature of charge against him, defendant, who appeared, filed affidavit, and presented defense on the merits, could not have contested court's jurisdiction even if no citation had been served upon him.

Trial — Courts — Findings

5. Under statute providing that decision shall consist of either general or special findings, and that all parties shall have right to request either special or general findings, trial court is invested with discretion to make either general or special findings, notwithstanding request for special findings, but must make findings of some sort.

Contempt — Findings of fact

6. Findings of fact, either separately made or incorporated in judgment, are essential to validity of contempt proceeding, whether contempt is direct or indirect.

Contempt — Nature of proceedings

7. Contempt proceedings are "sui generis", and even a case of civil contempt is "quasi criminal", but, with respect to procedural questions, such proceedings assimilate themselves to actions at law.

Contempt — Determination of facts

8. In contempt proceeding, determination of fact, like all other decisions of fact in proceedings at law, is conclusive on appeal unless some error of law calculated to affect such determination is shown by the record.

Divorce — Findings of fact

9. In contempt proceeding for refusal to comply with divorce decree requiring defendant to contribute to support of children, failure of trial court to make findings of fact was reversible error.

Divorce — Findings of fact

10. In contempt proceeding for refusal to comply with divorce decree requiring defendant to contribute to support of children, it should appear from findings of fact that defendant failed to perform the act enjoined by the decree and that it was within his power to do so.

Trial — Court reporter

11. A trial judge was not guilty of arbitrary denial of right to have proceedings taken down by reporter, where it did not appear that any demand for reporter had been made or that judge had made any ruling in such respect.

Appeal and error — Bill of exceptions

12. Where evidence was not taken down by stenographer, no attempt was made to tender bill of exceptions consisting of whole testimony, affidavits supporting proposed bill of exceptions were not made by disinterested persons, and trial court entered order reciting that no exceptions were taken and ordering that proposed bill of exceptions be disallowed, there was no bill of exceptions before supreme court and assignments of error based on exceptions alleged to have been taken to rulings of court upon trial could not be considered.

Appeal and error — Assignments of error

13. An assignment of error predicated on court's denial of motion for new trial which specified only alleged errors committed on trial, all of which were known to appellant at the time, was a nullity.

Divorce — Findings of fact

14. In contempt proceeding for refusal to comply with divorce decree requiring defendant to contribute to support of children, absence of findings of fact did not render judgment "void", but only "voidable", and case would be remanded with directions to make findings and to enter new judgment, from which either party might appeal.

ON OBJECTIONS TO COST BILL

Costs

15. Costs are purely statutory.

Contempt — Costs

16. The statutes providing for allowance of costs in specified actions do not include proceedings in civil contempt, so as to authorize the allowance of costs in contempt proceedings.

Contempt — Costs

17. The statute providing that the state is not required to advance costs in any action does not apply in proceeding for contempt for failure to comply with decree requiring defendant to support children.

Contempt — Costs

18. Under statute committing allowance of costs to the discretion of the court, where defendant was adjudged in contempt by circuit court for failure to comply with decree requiring him to contribute to support of his minor children, and judgment was reversed because of failure of the circuit court to make findings of fact, defendant was not entitled to recover costs or disbursements.

                  See 12 Am. Jur. 437, 443
                  17 C.J.S., Contempt, §§ 72b, 127
                

Before KELLY, Chief Justice, and BAILEY, LUSK, RAND and ROSSMAN, Associate Justices.

Appeal from Circuit Court, Marion County.

E.C. LATOURETTE, Judge.

Contempt proceeding by the State, on the relation of Hope Bassett, against Raymond H. Bassett. From an order adjudging him in contempt, defendant appeals.

REVERSED.

George A. Rhoten, of Salem (E.M. Page, of Salem, on the brief), for appellant.

O.A. Neal, of Portland (W.W. McKinney, of Salem, on the brief), for respondent.

LUSK, J.

This is an appeal from an order adjudging the defendant in contempt for refusing to comply with the decree of the circuit court for Marion county requiring the defendant to contribute to the support of his minor children.

In 1930 that court granted the relatrix, Hope Bassett, a decree of divorce from the defendant, Raymond H. Bassett, the appellant here, and by such decree ordered him to pay to the relatrix the sum of $100 per month for the support and maintenance of their three minor children. In 1932, the amount of such monthly payments was, by order of the court, reduced to $50.

On May 6, 1940, the relatrix and the district attorney for Marion county filed a motion "for an order of citation to be served upon the defendant herein to show cause why the defendant should not comply with the order of this court made and entered on the 6th day of September, 1932, requiring said defendant to pay monthly towards the support and care of the minor children of relator and defendant the sum of $50.00 per month". This motion was supported by the affidavit of the relatrix, which showed that the defendant was able to comply with the court's decree but had not done so, and that he was in default in the amount of $470.

Based upon the motion and affidavit, the court, on May 2, 1940, issued an order that the defendant "be and he is hereby required and cited to appear in the Circuit Court of the State of Oregon, for the County of Marion, Department No. 2, in the court room thereof in Salem, Marion County, Oregon, on the 21st day of May, 1940, at the hour of 10 o'clock a.m. of said day, to then and there show just cause why he had not fulfilled the order of the Court to pay said sum of $50.00 per month to said relator for the support of said minor children."

On May 2, 1940, a citation issued accordingly, directed to the defendant, Raymond H. Bassett, and citing him to appear at the time and place aforesaid, "then and there to show cause why you have not complied with the order of this Court under date of September 6, 1932, requiring you to pay to relator herein the sum of $50.00 per month for the care and support of your minor children." The citation, together with duly certified copies of the relatrix' motion and affidavit, and of the order for the issuance of citation, were served upon the defendant by the sheriff of Marion county on May 6, 1940. On May 21, 1940, the defendant filed a counter-affidavit.

The case came on to be tried before the Hon. Earl C. Latourette, Judge of the Fifth Judicial District, on May 24, 1940, the parties appearing in person and by their attorneys, and the court, after hearing the testimony of witnesses, on the 7th day of June, 1940, entered an order as follows:

"IT IS HEREBY ORDERED, ADJUDGED AND DECREED that said defendant be and he is hereby held in contempt of this Court for failure to pay moneys for the support of the above named children;

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that said defendant shall be purged of said contempt upon his paying to the Clerk of this Court the sum of $300.60 within 10 days from said 24th day of May, 1940."

The court made no findings of fact.

On July 2, 1940, the court entered an order in which, after reciting that the defendant had not paid the sum of $300.60 or any part thereof except the sum of $10 and was still in contempt, it was ordered and adjudged that the defendant be punished for said contempt by imprisonment in the county jail of the county of Marion, state of Oregon, for a term not to exceed 30 days. The defendant, however, was granted a further period of 10 days in which to purge himself of contempt by paying the sum of $290.60 to the relatrix. The defendant did not avail himself of this opportunity, but instead prosecuted an appeal from the judgment, and the case is before us on assignments of error which will now be discussed.

The first assignment of error challenges the sufficiency of the motion and affidavit, the order...