Stone v. Stidham

• Decision Date: 01 July 1964
• Docket Number: No. 8020,8020
• Citation: 393 P.2d 923,96 Ariz. 235
• Parties: Jewell J. STONE, Petitioner, v. The Honorable Charles STIDHAM, Judge of the Superior Court of the State of Arizona, in and for the County of Maricipa, and Helen Lea Stone Maidens, Respondents.
• Court: Arizona Supreme Court

Page 923

393 P.2d 923

96 Ariz. 235

Jewell J. STONE, Petitioner, v. The Honorable Charles STIDHAM, Judge of the Superior Court of the State of Arizona, in and for the County of Maricipa, and Helen Lea Stone Maidens, Respondents.

No. 8020.

Supreme Court of Arizona, In Banc.

July 1, 1964.

Virginia Hash and Arthur C. Navarro, Phoenix, for petitioner.

Tupper, Skeens & Rapp, by Gerald D. Tupper, Phoenix, for respondent.

IRWIN CANTOR, Superior Court Judge.

Petitioner, Jewell J. Stone, has applied to this Court for a Writ of Prohibition against the Superior Court of Maricopa County, the Honorable Charles C. Stidham, as Judge thereof, prohibiting him from taking further action in case number 61240.

Jewell J. Stone hereinafter referred to as petitioner, and his former wife, now Helen Lea Stone Maidens, had entered into a negotiated property settlement agreement on July 15, 1960. The portion of the agreement in question is as follows:

'That Jewell J. Stone shall pay to Helen Lea Stone as and for her share of the parties' community property the sum of one hundred twenty-five dollars ($125.00) per month for a period of ten (10) years. Said payment to begin on the date said divorce is granted.'

Thereafter the petitioner as plaintiff filed a divorce action against his wife Helen Stone. The parties were divorced on August 10, 1960. Mrs. Stone was not represented by counsel. The divorce decree incorporated the agreement by stating the following:

'That the property settlement agreement entered into between the parties received in evidence as plaintiff's Exhibit 1, be and the same is hereby settled, approved, and made a part of this judgment and decree of divorce, as if fully set forth herein.'

On May 28, 1963, the petitioner was cited before the Superior Court on an Order to Show Cause why he had failed to make the payments due to Helen Lea Stone Maidens. The court, after hearing testimony from both parties, entered the following order:

'It is ordered finding that the arrearages in the payments due the defendant under the decree and property settlement agreement are in the sum of one thousand four hundred ninety-three dollars and seventy-five cents ($1,493.75).

'It is further ordered finding that the plaintiff is in contempt for having failed to pay said amount and that he may absolve himself of said contempt by paying said amount in full within a period of sixty (60) days, or in lieu thereof, be confined in the County Jail for a period of six (6) months.'

It is from this order that the petitioner seeks a Writ of Prohibition on the grounds that the Trial Court was without jurisdiction in entering the foregoing order. See Van Ness v. Superior Court, 69 Ariz. 362, 213 P.2d 899. He claims that if he failed to make said payments within sixty (60) days he would be imprisoned for debt in direct violation of Article II Section 18 of the Arizona Constitution, A.R.S. It is the position of Helen Lea Stone Maidens, the real party respondent in this matter, that the payments required by the Decree were also for her maintenance and support and therefore enforcible by contempt proceedings.

We have presented to us two principles of law. The first is that imprisonment for debt is contrary to the Arizona Constitution. It is without doubt that the payment of a debt cannot be enforced by imprisonment for contempt. Collins v. Superior Court, 48 Ariz. 381, 62 P.2d 131.

The other principle of law before us is that notwithstanding the foregoing constitutional prohibition when one fails, without good cause, to make the support payments for a former wife as ordered in a divorce decree, he may be imprisoned for contempt. Collins v. Superior Court, supra.

Support and alimony are based on the theory that there is a moral and social obligation to support one's child or former wife as well as the statutory duty imposed by law. The problem then resolves itself into the question of whether the obligation specified in this agreement and incorporated in the decree is enforcible by contempt proceedings. The payments to be made to the wife were 'for her share of the community property'. The decree including the agreement is clear and unambiguous as to the nature of the payments. They were by way of division of community property and not as alimony or support payments.

We recognize that the authorities are divided on the question of whether the terms of the decree incorporating the property settlement are enforcible by contempt proceedings. Some states have examined the decree to ascertain if the intent of the settlement was actually for maintenance and support. See Notes 124 A.L.R. 145 and 154 A.L.R. 443.

We have held in Long v. Stratton, 50 Ariz. 427, 72 P.2d 939 that a decree incorporating the property settlement which provides for certain payments as settlement of the parties' community interest together with the former wife's right of support may be enforced by contempt. However, the case at bar is distinguishable from the foregoing in that in this case only a division of community property was agreed upon.

As in all cases of constitutional provisions designed to safeguard the liberty of the person, every reasonable doubt should be resolved in favor of such liberty.

The term 'alimony' does not contemplate a settlement of property interest or general endowment of wealth. Like the alimentum in civil law from which the word was derived it has for its sole object the provision of food, clothing, habitation and other necessities for support. We believe the better view is that the decree incorporating property settlement agreement cannot be enforced by contempt proceedings.

In the case of Bradley v. Superior Court, 48 Cal.2d 509, 522, 310 P.2d 634, 642, the California Supreme Court had before it facts very similar to those in the case at bar. The court on page 642 stated:

'We are satisfied that the better view is that payments provided in a property settlement agreement which are found to constitute an adjustment of property interests, rather than a severable provision for alimony, should be held to fall within the constitutional proscription...