State ex rel. Enochs v. District Court of Fourth Judicial Dist. in and for Missoula County

• Decision Date: 30 March 1942
• Docket Number: 8297.
• Citation: 123 P.2d 971,113 Mont. 227
• Parties: STATE ex rel. ENOCHS v. DISTRICT COURT OF FOURTH JUDICIAL DIST. IN AND FOR MISSOULA COUNTY et al.
• Court: Montana Supreme Court

123 P.2d 971

113 Mont. 227

STATE ex rel. ENOCHS v. DISTRICT COURT OF FOURTH JUDICIAL DIST. IN AND FOR MISSOULA COUNTY et al.

No. 8297.

Supreme Court of Montana

March 30, 1942

Original proceeding by the State of Montana, on the relation of Roy H Enochs, against the District Court of the Fourth Judicial District of the State of Montana in and for the County of Missoula, and another, to obtain a writ of supervisory control or other appropriate writ.

Petition denied.

J. C Robinson, of Missoula, and J. D. Taylor and Lee Metcalf, both of Hamilton, for relator.

F. W Wilson and T. E. Mulroney, both of Missoula, for respondents.

JOHNSON Chief Justice.

Relator, Roy H. Enochs, petitions for a writ of supervisory control, or other appropriate writ.

The petition recites that on September 3, 1941, Dottie Enochs filed a suit for divorce against relator; that on January 3, 1942, a divorce decree was entered in her favor in which relator was ordered to convey to her certain real and personal property and to make certain alimony payments; that "relator was not present in Court at the time when the said decree was so made and entered in said cause, and the same was not served on him, nor did he have any knowledge of the contents of the same;" that on January 23, 1942, the district judge issued a citation which was subsequently served on relator, together with a copy of the affidavit upon which it was issued, requiring him to appear on January 29, 1942, to show cause why he should not be punished for contempt of court for wilfully disobeying the said provisions of the decree relating to property and alimony payments; that relator appeared and moved to quash the citation upon the grounds that the affidavit did not state facts sufficient to disclose that relator had committed contempt of court and that the parts of the decree requiring relator to convey the property and pay alimony were void; that in support of the motion to quash, relator had filed his affidavit "wherein he stated positively that he was not personally served with a copy of the decree, or otherwise served with a copy thereof, and that he had no knowledge of the contents of the same;" that the court denied his motion to quash; that testimony was thereupon submitted and the matter taken under advisement by the court; that on February 5, 1942, the court rendered judgment finding relator guilty of contempt for the wilful violation of the decree of January 3, 1942, and also for violating a temporary restraining order issued on September 3, 1941, and directing that relator be fined $100 and that he be committed to the county jail for ten days, the jail sentence to be suspended if the relator should purge himself of the contempt by February 9, 1942, by transferring the property as required by the decree; that relator has no plain, speedy or adequate remedy by appeal or otherwise except by special writ.

Annexed to the petition are copies of the divorce decree (but not the judgment roll upon which it is based), the order to show cause and the affidavit upon which it is based, relator's motion to quash and the supporting affidavit above mentioned, the court's findings of fact, conclusions of law and judgment finding relator guilty of contempt, and affidavits showing the impossibility of obtaining the reporter's transcript of the proceedings and evidence in time to annex it to the petition. The affidavits were to excuse the relator's failure to annex the transcript also required by Rule IV 4 of this court. The transcript was subsequently filed and will be considered part of relator's petition. The citation, affidavit and contempt judgment referred also to relator's nonpayment of the attorney's fees, though his petition fails to mention the subject.

The copy of relator's motion to quash the contempt citation, which is annexed to his petition here, shows that he did not challenge by it either the validity of the decree's provisions for alimony and attorney's fees, or the validity of the decree in toto. The transcript of the hearing shows, moreover, that the validity of the alimony and attorney's fees provisions was not attacked at all at the contempt hearing, and the latter item is not attacked here, although relator's attorney stated at the contempt hearing that neither the alimony nor the attorney's fees had been paid as required by the decree. This consideration alone is sufficient to show that the relator was admittedly guilty of contempt; but as the other items may also have affected the penalty we shall consider the further questions presented.

Respondents have appeared herein by motion to quash the writ and dismiss the proceedings, and without waiver thereof by return and answer effectively joining issue on the merits. The grounds of their motion are that the petition does not state facts sufficient to entitle relator to a writ of supervisory control or to any relief.

Relator prays for a writ of supervisory control or other appropriate writ. Since he challenges the jurisdiction of the trial court upon the grounds that the provisions he is accused of violating have no valid existence and that the affidavit for citation failed to state facts sufficient to constitute contempt of court, it seems clear that his remedy would not be supervisory control, which concedes the jurisdiction of the court, but rather that certiorari is the remedy where the jurisdiction has been exceeded (section 9837), which is also expressly made by statute the method for the review of contempt judgments (section 9921). The latter statute not only disposes of the respondents' objection to the remedy, but also disposes of the necessity of showing that the relator had no other suitable remedy. It is consequently immaterial that respondent's reference to the absence of other remedy was stated only as a conclusion of law. We therefore come to the question whether in any other respect the relator's petition fails to state facts sufficient to entitle him to relief.

It appears from the transcript of evidence at the contempt hearing that after his motion to quash was overruled, the relator's attorney participated in the proceedings, cross-examined the witnesses, stated several times in open court that the relator had not complied and would not comply with the decree "but we are not guilty of contempt."

The contentions were that the property provisions in question were void as in excess of the trial court's jurisdiction, and further that the entire decree was void as having been obtained by fraud. Upon the cross-examination of the relator's former wife, the plaintiff in the divorce action, relator's attorney referred to a document apparently assumed to be a copy of a divorce decree obtained by her in Nebraska in 1916, and the contention seems to be that she committed fraud upon the respondent court by alleging in her complaint that the parties intermarried in 1913 and "are now and ever since that time have been husband and wife."

However the copy of the supposed Nebraska decree was not offered in evidence and the document to which it seems to have been annexed as an exhibit (apparently a motion for new trial of the divorce action in respondent court) was not annexed to the relator's petition or otherwise brought before us. We have no way of ascertaining from the record whether any such divorce was ever obtained in Nebraska, or if so, whether the plaintiff in this divorce action was...