State ex rel. Stillwell v. Stillwell

• Decision Date: 06 June 1916
• Parties: STATE EX REL. STILLWELL v. STILLWELL.
• Court: Oregon Supreme Court

157 P. 970

80 Or. 610

STATE EX REL. STILLWELL v. STILLWELL.

Supreme Court of Oregon

June 6, 1916

In Banc.

Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Civil contempt proceeding on the relation of Bertha O. Stillwell against John R. Stillwell. Judgment of guilty, and defendant appeals. Reversed and dismissed.

This is a civil contempt proceeding instituted in the circuit court for Coos county by the state of Oregon, upon the relation of Bertha O. Stillwell, against John R. Stillwell, to punish him for an alleged disobedience of a decree of that court. The affidavit of the relator states in effect that on July 3 1914, by consideration of that court, she was divorced from the defendant, who at that time was ordered to pay on August 1st of that year and monthly thereafter the sum of $25 for the support and maintenance of their minor children, and that he had neglected to pay any part thereof. Based on this sworn statement, the district attorney's motion for the attachment of the defendant was allowed. Answering the affidavit, the defendant alleged, inter alia, that the court had no jurisdiction of these proceedings, for that, when the suit was instituted and the decree rendered, he was in the state of California; that he had a valid defense, in that he had been driven from his home in Coos county, Or., by the cruel and inhuman treatment of the relator, and by her threats of personal violence he was compelled to transfer to her all his real and personal property then of the value of about $7,000, and to leave her; that he returned to Oregon to interpose a defense to the suit, the trial of which was repeatedly postponed on account of the congested condition of the docket of that court; that, not having sufficient means to defray his expenses in Coos county until the cause could be tried, and only enough money with which to return to California, he effected an understanding with the relator that, if a divorce were granted her, she would not take any order for alimony or for the future support and maintenance of their minor children, but would, in consideration of his allowing her to hold all the property he had transferred to her, abandon all claims for allowances; that after he returned to California the decree was taken against him, and he had no knowledge thereof until he was indicted for the nonsupport of these children and brought from Vancouver Wash., to answer the charge; that his counsel immediately moved to dismiss the indictment, but no order was made thereon until these proceedings were instituted, when he was arrested before he could leave the courtroom; that he never had any knowledge or notice of the order requiring him to make any contribution towards the support of his children until he was brought to Oregon pursuant to a warrant issued in the criminal action; that he is ill, has no property, and is unable to earn any money by his labor; that his brother by mortgaging a farm, was able to secure money which the defendant used in employing counsel to interpose this answer and that, if he were financially able, he would purge the seeming contempt, by paying the sums demanded of him, but for lack of money and property he cannot comply with the order.

To this answer the relator interposed no reply. The state, however filed a reply, denying some of the averments of the answer, and alleging that when the suit was commenced the defendant was a resident of the state of Oregon, was personally served with summons therein, and appeared in such cause. The reply admits the defendant was arrested at Vancouver, Wash., and without requisition was returned to Coos county, Or.; that the indictment was dismissed because the custody of the minor children had been given to the relator, and a criminal prosecution could no longer be maintained against him under chapter 249, Laws Or. 1915, whereupon the defendant was apprehended for the contempt.

The cause was tried June 28, 1915, and the record of the determination reads:

"Comes on now to be heard the above-entitled cause upon the motion and affidavit filed herein, the answer and reply and the proceedings had herein, and the court, having considered the same and the testimony and evidence offered and submitted on the trial of said cause, finds that on or about the 3d day of July, 1914, upon summons personally served upon the defendant, and in a cause wherein the court has jurisdiction of the persons and the parties, that a judgment was duly given and entered providing for the payment of said sums of money for the care, maintenance and support of the minor children as therein provided, and, it further appearing to the court that the defendant had due and legal notice of said order, and has failed to comply therewith, and has shown no good or sufficient cause for...