Vollmer v. Vollmer

• Citation: 46 Idaho 97,266 P. 677
• Decision Date: 13 April 1928
• Docket Number: 5201
• Parties: NORMAN P. VOLLMER, Plaintiff, v. ESTHER A. VOLLMER, Defendant
• Court: United States State Supreme Court of Idaho

266 P. 677

46 Idaho 97

NORMAN P. VOLLMER, Plaintiff, v. ESTHER A. VOLLMER, Defendant

No. 5201

Supreme Court of Idaho

April 13, 1928

WRIT OF REVIEW-SCOPE-CONTEMPT-JURISDICTION-DIVORCE-FAILURE TO PAY MAINTENANCE - ABILITY - EVIDENCE - BURDEN OF PROOF.

1. Writ of review of order of imprisonment for contempt, under C. S secs. 7392, 7393, extends to evidence itself when questioned to extent of inquiring whether there was any evidence to furnish substantial basis for adjudging person guilty of contempt, and that act was yet in power of person to perform.

2. Under C. S., sec. 7246, providing that return to writ of review shall consist of transcript of record and proceedings describing or referring to them with convenient certainty recital of facts not otherwise shown by the record will be stricken from return by way of answer and not considered.

3. Application and affidavit that plaintiff in divorce action had failed to make payments ordered pending appeal, with voluntary appearance in answer to such citation nearly a year later, pursuant to order on court's own motion requiring plaintiff to show cause why he should not be punished for contempt, held sufficient to confer jurisdiction.

4. Where trial court at close of evidence in contempt proceedings stated that court did not feel like it needed argument, to which there was no protest with offer of argument, error cannot be assigned on ground of arbitrary refusal to hear argument of counsel.

5. Evidence held sufficient to support finding that plaintiff in divorce action had been guilty of contempt of court in failure, neglect, and refusal to comply with order requiring payment of a certain sum for maintenance of wife and child pending appeal.

6. In contempt proceedings for failure to obey order in divorce action, plaintiff had burden of making a full and fair disclosure of his financial condition and showing inability to comply with order of court.

7. On failure of party to introduce evidence, it may be assumed that, if such evidence had been disclosed, it would have been to his detriment.

8. Assignment of salary or fees which had been earned is valid as not forbidden by public policy.

9. Fact that one has rich relatives or friends who have at times contributed to amelioration of his embarrassing circumstances without obligation so to do, and who might again do so, is no ground for finding his present ability to pay moneys which he has no other way of securing.

10. Evidence held sufficient to sustain finding that plaintiff in divorce action had, at time of hearing on order to show cause why he should not be punished for contempt for failure to comply with order requiring payment for maintenance of wife and child pending appeal, the ability to pay sum ordered.

Original proceedings on review. Proceedings affirmed and writ dismissed.

Proceedings affirmed and the writ dismissed. Costs to defendant.

O. C. Moore, John L. Phillips and Charles P. McCarthy, for Plaintiff.

The petition alleges and the return discloses that Judge Steele declined to permit any argument on behalf of plaintiff by his counsel. This arbitrary refusal to permit any discussion of the law or the facts was a denial of due process of law in violation of Const., sec. 13, of Idaho, and of the due process clause of the fourteenth amendment to the constitution of the United States, and conclusively shows that the court was prejudiced, had prejudged the case and determined on the disposition thereof before he had heard all the evidence. (McClatchy v. Superior Court, 119 Cal. 413, 51 P. 696, 698, 39 L. R. A. 691; Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767; Crucia v. Behrman, 147 La. 137, 84 So. 523; Denver v. State Investment Co., 49 Colo. 244, 112 P. 789, 33 L. R. A., N. S., 395; Babcock v. Wolf, 70 Iowa 676, 28 N.W. 490; Harkins v. Murphy & Bolanz, 51 Tex. Civ. App. 568, 112 S.W. 136; Mix v. Board of Commrs., 18 Idaho 695, 112 P. 215, 32 L. R. A., N. S., 534.)

On writ of review the court may consider the facts and the evidence for the purpose of determining whether there is any substantial evidence to support the finding of any fact or facts, proof of which is necessary to give the lower court jurisdiction to make the order complained of--in this case the fact that petitioner had the present ability to make the payment required of him. (Hay v. Hay, 40 Idaho 159, 232 P. 895; Strain v. Superior Court, 168 Cal. 216, Ann. Cas. 1915D, 702, 142 P. 62; McFarland v. Superior Court, 194 Cal. 407, 228 P. 1033; Ex parte Drew, 188 Cal. 717, 207 P. 249.)

The petition alleges that the court declined to permit any argument by counsel on behalf of petitioner. This was a denial of due process of law and of itself renders the order of contempt absolutely void. No jurisdiction in absence of due process. (McClatchy v. Superior Court, supra.)

The failure to perform an act required by the court is not a contempt in the absence of a present ability to perform such act, and such ability must be established by substantial proof, in the absence of which the court is without power to adjudge that a contempt has been committed. (Harkness v. Hyde, 31 Idaho 784, 176 P. 885; In re Hamberg, 37 Idaho 550, 217 P. 264; Hay v. Hay, supra; Snook v. Snook, 110 Wash. 310, 9 A. L. R. 262, 188 P. 502.)

On writ of review the court will consider the entire records, pleadings and the evidence, for the purpose of determining whether jurisdictional facts are alleged and proved--in this case whether petitioner had the present ability to make the payment required of him. (Sweeny v. Mayhew, 6 Idaho 455, 56 P. 85; Hay v. Hay, supra; Mitchell v. Superior Court, 163 Cal. 423, 125 P. 1061; Exparte Lake, 65 Cal.App. 420, 224 P. 126.)

James F. Ailshie and James F. Ailshie, Jr., for Defendant.

The first contention we make in this proceeding and the one which we believe should control the decision is that the return discloses full and complete jurisdiction in the defendant judge to make the order complained of. He had jurisdiction (a) of the subject matter; that is, of the order entered by him July 6, 1926, and the subject matter therein involved; (b) he had jurisdiction of the person of plaintiff because he appeared in person and by counsel upon the hearing answered and introduced evidence.

These are the only jurisdictional questions that arise in a contempt proceeding. This point was aptly covered by the supreme court of California in Ex parte Selowsky, 189 Cal. 331, 208 P. 99.

In re Hamberg, 37 Idaho 550, 217 P. 264, is in harmony with the position we take and contention we are making. That case was here on habeas corpus and holds that the commitment must show that the order of the court has been violated and that the contemner had the ability at the time of the commitment to comply with the order. That is not a holding, however, that this court will examine and weigh the evidence submitted to the trial court to determine whether it supports such finding. This is the point in the present case where plaintiff draws an erroneous conclusion and proceeds to cite cases that do not apply here. If the result claimed by plaintiff must follow the holding In re Hamberg and other cases to that effect, it would absolutely overturn the other well-established rule that the evidence on the merits cannot be examined on certiorari and would throw down the bar that has always stood guard in this line of cases and simply convert the writ of review into an appeal for correction of errors.

In Hurd v. Hurd, 63 Minn. 443, 65 N.W. 728, it was held that when a violation of an order of the court is either shown or admitted, a case of contempt is made and the burden is then upon the person to show that it was not in his power to obey the order, and said: "His financial condition and resources were matters peculiarly within his own knowledge and he was called upon to make a full, fair and direct showing as to them, if he would justify his neglect to obey the orders of the court." (State v. Searles, 141 Minn. 267, 170 N.W. 198; Laff v. Laff, 161 Minn. 122, 200 N.W. 936; Ex parte Pillsbury, 69 Cal.App. 784, 232 P. 725; State v. Smith, 17 Wash. 430, 50 P. 52.)

In Croft v. Croft, 77 Wash. 620, 138 P. 6, defendant was committed for failure to comply with the order of the court, and made the contention that it was the duty of the plaintiff to show that he was able to comply with the order. The court held that the burden was on the defendant, saying: "The appellant, if we have caught the gist of his argument, claims that, under the evidence, there was no reasonable ground for the presumption that he is able to pay and that, before he can be punished as for contempt, the burden was on the other side to show such ability. This is not the correct rule. (Robertson v. Johnson, 210 Mo.App. 585, 243 S.W. 215; Reed v. Reed, 24 Ky. Law Rep. 2438, 74 S.W. 207.)"

The rule is stated in Gray v. Gray, 127 Ga. 345, 56 S.E. 438, as follows: "A failure to comply with an order of court requiring the payment of alimony and attorneys' fees is a continuing contempt, and the court may enter a judgment that the party so refusing be imprisoned until he shall comply."

TAYLOR, J. T. Bailey Lee, J., and Varian, District Judge, concur, BUDGE, J., Concurring Specially. WM. E. LEE, C. J., Concurring in Part and Dissenting in Part. Givens, J., disqualified.

OPINION

TAYLOR, J.

Plaintiff here was plaintiff in an action of the same title for divorce, and appealed from a judgment therein. By a subsequent order, the trial judge ordered plaintiff to pay certain counsel fees and expenses and pay to the defendant $ 150 per month for maintenance of herself and child pending the appeal. No appeal was taken from that order. On plaintiff's application, a writ was issued out...