State v. Dailey, 23021.

• Decision Date: 18 August 1931
• Docket Number: 23021.
• Citation: 164 Wash. 140,2 P.2d 79
• Parties: STATE ex rel. DAILEY v. DAILEY.
• Court: Washington Supreme Court

2 P.2d 79

164 Wash. 140

STATE ex rel. DAILEY v. DAILEY.

No. 23021.

Supreme Court of Washington

August 18, 1931

Department 2.

Appeal from Superior Court, Snohomish County; Edwin J. Gruber Judge.

Proceeding by the State, on the relation of F. O. Dailey, against A. E Dailey. From the judgment, relator and defendant appeal.

Reversed and a new trial ordered.

John B. Fogarty, of Everett, for appellant.

Lewis & Black, of Seattle, for respondent.

BEALS J.

From the opinion of this court in the case of A. E. Dailey, Respondent, v. F. O. Dailey, Appellant, 148 Wash. 668, 269 P. 1118, it appears that December 4, 1926, a decree was entered by the superior court for Snohomish county, denying Mr. A. E. Dailey's application for a divorce, dismissing his complaint with prejudice, and granting to Mrs. F. O. Dailey, for her support and maintenance, the sum of $50 per month. This court, in the case cited, affirmed an order of the superior court denying Mrs. Dailey's application for an allowance by way of attorney's fees incurred in resisting an application by Mr. Dailey for an order modifying the award of separate maintenance. In the later case of Dailey v. Dailey, 154 Wash. 499, 282 P. 830, this court affirmed an order of the superior court dismissing another petition filed by Mr. Dailey, praying for a modification of the decree of separate maintenance upon sustaining a demurrer to such petition. In the recent case of Dailey v. Dailey (Wash.) 299 P. 988, other phases of the litigation between these parties were considered.

February 5, 1930, Mrs. Dailey, the relator, instituted this proceeding in the superior court for Snohomish county for the purpose of procuring an order adjudging Mr. Dailey in contempt of court, and filed her affidavit stating that in the prior action above referred to the court had ordered Mr. Dailey to pay to her $50 per month, commencing January 4, 1927, and that Mr. Dailey had paid nothing on account of the decree awarding her separate maintenance, save the sum of $47, which amount represented a judgment for costs recovered by Mr. Dailey against Mrs. Dailey, and was, by order of court, offset against the amount due Mrs. Dailey under the decree of separate maintenance. Mrs. Dailey further stated in her affidavit that, since the entry of the decree above referred to, Mr. Dailey had been financially able to comply with the decree in whole or in part, but that he had willfully and contumaciously disobeyed the decree; the affidavit contained other statements as to Mr. Dailey's ability to earn money, and his contemptuous disregard of the court's order. Upon filing the affidavit, the court made an order requiring Mr. Dailey to appear and show why he should not be adjudged to be in contempt of court, and be punished for such contempt according to law, and also requiring him to show cause why he should not comply with Mrs. Dailey's demand that he comply with the separate maintenance decree, in so far as his means might permit. A second order was issued by the clerk of the court, under its seal, reciting the issuance by the court of the order to show cause, and requiring Mr. Dailey to appear and show cause, as provided in the order signed by the judge. The matter was tried to the court upon oral testimony, and resulted in findings to the effect that Mr. Dailey owned his wife, under the decree of separate maintenance, after allowing him certain credits, the sum of $2,115.95, with interest; that Mr. Dailey, since the entry of the decree, had practically at all times earned monthly sufficient money to enable him to pay Mrs. Dailey the allowance for her separate maintenance, and that since the entry of the decree his earning power had been ample to have enabled him to earn sufficient money to make such payments, but that Mr. Dailey had 'willfully and contumaciously disobeyed said decree in that he has willfully failed, neglected and refused to make the payments or any part thereof required by said decree,' except as the court allowed him credits against the same. The court further found that Mr. Dailey's failure to comply with the decree was due solely to his contemptuous disregard thereof, and to his willful intent to disobey and not perform the same. The court further found 'that defendant has not now the ability to pay the said past due installments, or any part thereof, or any judgment entered against him by said decree of December 4, 1928.' In accordance with the findings, the court adjudged that A. E. Dailey was guilty of willful contempt of court, and ordered that he pay to the state of Washington a fine in the sum of $250 and costs taxed at $50, and that he stand committed to the county jail until the fine and costs be paid or liquidated at the rate of $3 for each day of imprisonment. From this judgment, Mr. Dailey appeals to this court, and Mrs. Dailey also appeals from the refusal of the trial court to include in the judgment a provision requiring Mr. Dailey to pay to her some reasonable amount to apply on his indebtedness to her under the decree of separate maintenance.

In this opinion we shall refer to Mr. A. E. Dailey as the appellant and relator as the respondent.

Appellant assigns error upon the ruling of the trial court denying him a jury trial; upon the receipt by the court of testimony offered by respondent as to occurrences prior to the rendition of judgments in prior proceedings instituted by respondent for the purpose of obtaining orders adjudging ap...