Watson v. Watson

• Decision Date: 12 July 1928
• Docket Number: 4642
• Citation: 72 Utah 218,269 P. 775
• Court: Utah Supreme Court
• Parties: WATSON v. WATSON

269 P. 775

72 Utah 218

WATSON v. WATSON

No. 4642

Supreme Court of Utah

July 12, 1928

Appeal from District Court, Second District, Weber County; J. N Kimball, Judge.

Proceedings by Ivy May Watson against James R. Watson, praying for an order that defendant show cause why he should not be punished for contempt for failure to pay alimony. From an order and judgment committing defendant to imprisonment until making payment, defendant appeals. Reversed in part and remanded.

Reversed and remanded.

A. G Horn, of Ogden, for appellant.

John A Sneddon, of Ogden, for respondent.

CHERRY, J. THURMAN, C. J., and STRAUP, HANSEN, and GIDEON, JJ., concur.

OPINION

CHERRY, J.

The defendant appeals from an order and judgment of the district court of Weber county committing him to imprisonment in the county jail until he pays $ 600 delinquent alimony to his divorced wife.

The plaintiff had a decree of divorce from the defendant on September 3, 1919, and an award of alimony of $ 35 per month for the support of herself and one minor child. On December 21, 1922, on account of the remarriage of the plaintiff the alimony was reduced by agreement to $ 15 per month. On June 15, 1927, the plaintiff instituted the present proceeding, setting forth the failure of the defendant to pay certain accrued alimony, his ability to do so, etc., and prayed for an order that defendant show cause why he should not be punished as for a contempt. An order was issued and served. The defendant appeared and a hearing was had. On August 5, 1927, the court made and filed its findings of fact and conclusions of law and the order appealed from. The court found the defendant in arrears to the amount of $ 1,801.20, including attorney fees and costs, and ordered him to pay $ 600 thereof at once, $ 600 in one year, and the remainder in two years, and that he be imprisoned until the first payment was made.

The order committing the defendant to imprisonment until he pays $ 600 delinquent alimony is assailed upon the ground that there is no sufficient proof or finding that the defendant had the ability to make the payment in default of which he was to be imprisoned. The finding of the court on this subject was that since the entry of the decree awarding alimony "defendant has earned sufficient wages to pay said alimony, but that defendant has willfully refused to pay said alimony, and this court finds that said defendant is in contempt of court for willfully refusing to pay said alimony." There was satisfactory and sufficient evidence to support the above finding.

The particular question here, however, arises upon the contention of defendant that the finding made by the court does not warrant or support the judgment of imprisonment which was entered against him. It is argued that a finding of present ability to comply with an order is an essential prerequisite to an order that the delinquent be imprisoned until he does comply. In support thereof the following cases are cited: Ex parte Silvia, 123 Cal. 293, 55 P. 988, 69 Am. St. Rep. 58; In re Cowden, 139 Cal. 244, 73 P....