State ex rel. Casey v. Casey

• Decision Date: 28 November 1944
• Citation: 153 P.2d 700,175 Or. 328
• Parties: STATE EX REL. CASEY <I>v.</I> CASEY
• Court: Oregon Supreme Court

175 Or. 328

153 P.2d 700

STATE EX REL. CASEY

v. CASEY

Supreme Court of Oregon.

Argued October 4, 1944.

Affirmed November 28, 1944.

Divorce

1. A divorced wife who had been given custody of minor children by divorce decree had such proprietary interest in amount husband was directed to pay to the clerk for support of children as would entitle her to bring contempt proceedings to enforce compliance with order, notwithstanding failure of order to direct that the installments be paid to her.

Divorce

2. Until they attain majority children of divorced parents remain wards of the court which granted the divorce, and the court retains jurisdiction for the purpose of requiring compliance with its decree in respect to their maintenance and support.

Divorce

3. Under the 1923 amendment to contempt statute, the court is granted power to enforce payment of suit money, alimony, and attorney's fees ordered paid either pending or upon final determination of divorce proceedings.

Divorce

4. In a strict legal sense, "alimony" means an allowance which the husband is required to pay to the wife for her maintenance pending or following divorce or legal separation, and in a broader sense it covers an award made for the support of minor children.

Divorce

5. Under statute empowering the court to punish by contempt for failure to pay "alimony", the court has power to punish by contempt for failure to pay support and maintenance of minor children.

Divorce

6. Failure to pay money for support of minor children as ordered is not a contempt per se, since inability to pay is a complete defense unless such inability is brought about by contumacy of defendant.

Divorce

7. Divorced wife seeking to have former husband punished by contempt for failure to pay support money for minor children was only required to show that husband failed to pay the amount ordered, and that husband was unable to pay was a matter of defense for him to plead and prove.

Divorce

8. Where husband failed to establish that his disregard of a court order directing payment of support money for minor children during minority of children, was not willful, the court did not err in adjudging him in contempt after children had attained majority.

Divorce

9. Where wife sought by contempt proceedings to compel divorced husband to obey order of court for payment of support money for minor children, but did not seek to recover judgment for money expended by her for such support, she was not required to show amount expended, or the use she intended to make of the money.

Divorce

10. Statute authorizing allowance of counsel fees in contempt proceedings to compel compliance with order in suit to dissolve marriage is limited in application to the court in which the proceeding was instituted, and thus does not authorize Supreme Court on appeal to allow such counsel fees.

                  See 17 Am. Jur. 535
                  27 C.J.S., Divorce, § 321
                

Before BAILEY, Chief Justice, and KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Multnomah County.

FRED W. BRONN, Judge.

Contempt proceeding by the State, on the relation of Margaret M. Casey, against Edwin F. Casey for failure to comply with order directing payment of money for support of minor children. From an order finding defendant guilty of contempt and continuing sentence on condition that defendant pay the delinquency at a fixed amount per month, the defendant appeals.

AFFIRMED.

William B. Murray, of Portland, for appellant.

Francis F. Yunker, of Portland, for respondent.

BAILEY, C.J.

On May 11, 1937, Margaret M. Casey was granted a divorce from her husband, Edwin F. Casey, and awarded the care, custody and control of their four minor children. No provision was made for the maintenance of Mrs. Casey or the support of the children. The court, however, reserved the right to fix the amount which the defendant should pay for the children's support. After due notice to him, the court on July 23, 1937, entered an order requiring the defendant to pay to the clerk of the court the sum of $30 per month, beginning in August, 1937, for the support and maintenance of the three youngest children. The eldest, a daughter, had married and thereby attained majority, between the date of the decree and the making of that order.

Margaret M. Casey subsequently married Henry Colson. On December 15, 1943, she instituted this proceeding, in which she will hereinafter be referred to as the plaintiff, by filing a motion, supported by her affidavit, for an order requiring Edwin F. Casey to show cause why he should not be punished as for contempt of court, for failure to pay the monthly installments which he had been ordered to pay to the clerk for the support of the three minor children, which delinquency she declared to be about $900. In resisting her motion the defendant filed an affidavit in which he stated that since the entry of the order requiring him to contribute to their support all the children have reached majority; that they make no claim to the unpaid installments; and that the plaintiff does not intend to use the money for the benefit of the children but for the purpose of buying a farm for herself and her husband.

After a hearing the court entered an order by which the defendant was found guilty of contempt. Sentence on such contempt was continued on condition that the "defendant pay to the clerk of the court on account of the delinquency herein the sum of $75 per month, beginning January 1, 1944". From that order the defendant has appealed.

Only one assignment of error is set forth in the defendant's brief on appeal, to wit: That the court erred in adjudging the defendant in contempt for failure to pay the monthly installments ordered by it. Two grounds relied upon by the defendant in support of this assignment are, in his language, the following: (1) "Divorced wife awarded custody of children has no proprietary rights in amounts ordered paid clerk for support of children"; and (2) "Divorced wife can not recover from former husband amounts latter failed to pay for support of children, without pleading and proving what sums she was required to pay, and did pay, for that purpose."

1. It is argued by the defendant that inasmuch as the amounts which he was ordered to pay for the support of the children were to be paid to the clerk of the court, and no mention was made in the order of the clerk's turning over the installments to the defendant's former wife, she had no interest in the enforcement of that order. Section 9-914, O.C.L.A., provides in part as follows:

"Whenever a marriage shall be declared void or dissolved, the court shall have power to further decree as follows:

"(1) For the future care and custody of the minor children of the marriage, as it may deem just and proper, * * *

"(2) For the recovery from the party in fault, and not allowed the care and custody of such children, such an amount of money, in gross or in installments as may be just and proper for such party to contribute toward the nurture and education thereof;

* * *

"(5) For the appointment of one or more trustees to collect, receive, expend, manage or invest, in such manner as the court shall direct, any sum of money decreed for the maintenance of the wife or the nurture and education of minor children committed to her care and custody."

In the instant case, as hereinbefore pointed out, the court did award the custody of the minor children to the plaintiff, and further ordered that the defendant pay a fixed amount every month to the clerk of the court for their support. No trustee or trustees were appointed to receive and expend the money so decreed for the maintenance of the children. It is therefore apparent that the only proper and sensible construction to be given the order is that the money required of the defendant was to be paid to the clerk for the purpose of being turned over by that official to the custodian of the children, their mother.

2. Until they attain majority, children of divorced parents remain wards of the court which granted the divorce: Hertzen v. Hertzen, 104 Or. 423, 426, 208 P. 580. And the court retains jurisdiction over the subject matter for the purpose of requiring compliance with its decree in respect to their maintenance and support: Ward v. Ward, 156 Or. 686, 68 P. (2d) 763, 69 P. (2d) 963.

Prior to the amendment in 1921 of § 514, O.L., now § 9-915, O.C.L.A., as amended, the court in which a decree of divorce had been granted had power to set aside, alter or modify so much of the decree as provided for the care and custody of minor children or for their nurture and education or for the maintenance of either party to the suit. That power was not limited to future installments but existed and could be exercised, upon a proper showing, as to installments which had already accrued: Brandt v. Brandt, 40 Or. 477, 67 P. 508; Mason v. Mason, 148 Or. 34, 34 P. (2d) 328. For the reason that the decree was indefinite as to duration and amount to be paid, it could not be enforced by execution. It was merely a personal decree and could be enforced only by attachment of the person, by means of contempt proceedings; Mason v. Mason, supra; State ex rel. Tolls v. Tolls, 160 Or. 317, 85 P. (2d) 366, 119 A.L.R. 1370.

Section 11-501, O.C.L.A., relating to contempt proceedings, remained unaltered from the time of its enactment in 1862 until 1923 (Oregon Laws 1923, chapter 165, § 1). Prior to such amendment that section (§ 670, O.L.), in so far as material here, read thus:

"The following acts or omissions, in respect to a court of justice, or proceedings therein, are deemed to be contempts of the authority of the court:

* * *

"(5) Disobedience of any lawful judgment, decree, order, or process of the court."

It was under that section of the code that recalcitrant husbands and fathers were coerced to contribute to the maintenance of their former wives or the support of their minor children. Proceedings thereunder...