State ex rel. Lay v. District Court, Fourth Judicial Dist. in and for Ravalli County

• Decision Date: 28 October 1948
• Docket Number: 8853.
• Citation: 198 P.2d 761,122 Mont. 61
• Parties: STATE ex rel. LAY v. DISTRICT COURT, FOURTH JUDICIAL DISTRICT IN AND FOR RAVALLI COUNTY.
• Court: Montana Supreme Court

198 P.2d 761

122 Mont. 61

STATE ex rel. LAY v. DISTRICT COURT, FOURTH JUDICIAL DISTRICT IN AND FOR RAVALLI COUNTY.

No. 8853.

Supreme Court of Montana

October 28, 1948

As Amended November 10, 1948.

Original application for writ of certiorari by the State of Montana on relation of Presley E. Lay against the District Court, Fourth Judicial District in and for County of Ravalli, and another to review an order adjudging relator guilty of contempt of court.

Writ discharged and proceeding dismissed.

Koch & Brownlee, of Hamilton, for relator.

Dan Paddock, of Hamilton, for respondent.

ADAIR Chief Justice.

Original application for writ of certiorari by the state, on the relation of Presley E. Lay, against the district court of the fourth judicial district in and for the county of Ravalli and Albert Besancon, judge presiding.

Relator Lay, hereinafter referred to as the defendant, was adjudged guilty of contempt for willful disobedience of an order in a divorce decree requiring him to pay specified monthly installments for the support of his infant child.

From the record the following appears: By decree entered May 31 1946, in the respondent court, Priscilla Lay, plaintiff, was granted a decree of divorce from the defendant, Presley E. Lay, custody of the seventeen-month old daughter of the parties and it was ordered that 'the defendant pay to plaintiff for the support of said child the sum of $40.00 per month.'

Defendant is an able bodied young man. He is an experienced, skilled automobile mechanic capable of obtaining steady employment and of performing work and labor at mechanic's wages. Notwithstanding, he willfully disregarded the decree by neglecting and refusing, for more than two years, to pay anything for the support of his child. At the time the decree was entered, defendant and his brother George were owners as tenants in common of 900 acres of land in Ravalli county.

Plaintiff had and has no means or property. To support herself and child she obtained employment as a teacher in the public schools. She taught during the school year of 1946-1947 at Wolf Point, Montana, and during the school year of 1947-1948 at Prescott, Arizona. The Arizona position paid $900 per annum more than she was able to obtain when teaching in Montana.

February 8, 1947, plaintiff made an accusatory affidavit charging defendant with contempt in willfully failing and refusing to pay any of the support money installments ordered in the decree. The accusations were set for hearing for February 26 1947, but by successive orders the court continued the proposed hearing from time to time. Finally on August 26, 1947, plaintiff's counsel caused defendant to be served with formal notice that on a day certain the contempt charges would be called for hearing. Defendant countered with a motion that the court modify its original decree 'by striking therefrom the order therein requiring the defendant to pay the sum of $40.00 per month for the support of the minor child, Rose Marie Lay.'

October 6, 1947, plaintiff filed a second accusatory affidavit charging that defendant had continued to fail and refuse to pay any of the support money installments ordered and asked that defendant be cited to show cause why he had not complied with the terms of the decree or be adjudged in contempt. Without determining the contempt charges set forth in either accusatory affidavit the respondent court on October 15, 1947, over plaintiff's objections, heard defendant's said motion for modification of the original decree. At the conclusion of such hearing the court made the following observations and order, viz.: 'The Court: I am frank to say that the Court is not much impressed with Mr. Lay's testimony. He is an able bodied young man, in these times of much employment and opportunity. He hasn't shown that he is very industrious, to say the least. Possibly that has been caused by this decree requiring him to pay a certain amount per month. Anyway, the child isn't here. There is no good excuse for its not being at least in the state. This court, I don't think would have any right to make any order relative to the custody of the child or its custody from now on. This is a request to strike out that $40.00 a month, to excuse the father completely from the support of this 2 1/2 year old child. No court could do that. That is impossible. Relieve him of his responsibility toward his child on the ground that he has responsibility toward his parents. His first responsibility is to the child. So, I am going to do this: While conditions are as they are, It Is Ordered that the monthly payments provided in the decree, from now on be reduced to $10.00 a month, while the child is kept out of this state by the mother. If the child is returned here, where the defendant can have his right of visitation and seeing his child, the court will consider further motions or applications in that respect. No order is made at all as to the unpaid payments, if any. The defendant will start making his $10.00 payments on the 1st of November, and monthly after that, $10.00.'

July 28, 1948, plaintiff filed a third accusatory affidavit charging that defendant had continued to fail and refuse to pay any support money and, on August 4, 1948, the court issued an order citing defendant to show cause on August 11, 1948, why he should not be punished for contempt for his willful and contumacious violation of the decree.

On August 4, 1948, plaintiff made a fourth affidavit wherein she applied to the court for an order reinstating the award for the support of the child to the sum of $40.00 per month, representing that plaintiff had returned to Montana with her child where both now reside; that plaintiff has been employed to teach in the public schools at Helena, Montana, during the school year of 1948-1949 and that while so doing she and the child will reside in Helena.

August 11, 1948, a hearing was held at which the court consolidated and heard both (1) the contempt charges against defendant, and (2) plaintiff's application for modification of the decree, and thereafter on August 13, 1948, made findings of fact, conclusions of law, orders and judgment as follows:

'The decree of divorce issued in this action on May 31, 1946, provided for the payment of $40.00 per month by the defendant for the support of the infant child of the parties. This decree, on application and motion of the defendant, and after an extensive hearing, was by order made October 24, 1947, modified to the amount of $10 per month while the plaintiff with the child resided outside of the State of Montana, but also provided that when she returned to Montana with the child and established a residence here, application could be made for further modification of this order and the decree of divorce. No part of such payments, either the $40.00 or the $10, has been made by the defendant to the Clerk of Court, the plaintiff or anyone. The defendant has paid nothing.

'The plaintiff taught school at Prescott, Arizona until the end of the school year and returned to Hamilton, Montana, in June of this year with the child and has established her residence in Montana, having been elected to teach and signed an application for such at Helena, Montana, during the coming school year. During all of the time since the decree of divorce she has had the entire care and custody of the child and has supported her in every way from her own earnings. The defendant contributing nothing except the $5.00 present to the child for one Christmas.

'The defendant is an able bodied young man, a competent mechanic, having worked for ten years at one garage in Hamilton, and at many other times at other garages and filling stations, and is well able to earn at least as much as the plaintiff, that is, $3000.00 a year. After the decree of divorce the defendant transferred to his brother all of his estate and interest in 900 acres of land which they owned jointly some 2 1/2 miles from Hamilton, and then stayed at home with his parents, worked on the ranch, and claimed he made nothing but a bare sustainance. His parents are the owners of a considerable farm near this 900 acres, and also close to Hamilton, well equipped, and they own a dwelling house in Hamilton which is rented by them, and they seem well able to take care of themselves. The defendant since the decree has contemptuously avoided making any payment under the decree, disposed of his property, except that he admitted he still owned an automobile, and a substantial bank account, he has refused to obtain employment at good wages, and his acts and conduct have been in utter disregard of his obligations to support or help support his child, and in defiance of the orders of this court. This court finds him guilty of contempt, and the judgment of the court is that he, the defendant, be confined in the Ravalli County jail for a period of five days and that he pay a fine in the sum of $200, and in default of the payment of such fine he be further confined in such jail for one day for each $2.00 of the fine remaining unpaid.

'The former decree of divorce and the modifying order of October 24, 1947 are further modified at this time to the effect that the defendant pay through the Clerk of this Court to the plaintiff, for the use and support of their child, the sum of $30 per month, which the court finds is approximately one-half the cost of supporting such child. The first payment to be made on or before August 20, 1948 and on the 20th day of each calendar month thereafter.

'In order to give the defendant an opportunity to purge himself of the contempt judgment herein rendered, then if he will on this date make the first payment of $30 to the Clerk for the child that has above been fixed as the

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