Wells v. Wells
| Decision Date | 27 April 1915 |
| Docket Number | 4344. |
| Citation | 148 P. 723,46 Okla. 88,1915 OK 211 |
| Parties | WELLS v. WELLS. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A proceeding against the defendant in a divorce suit for contempt for willfully refusing to pay alimony and counsel fees ordered by the court is a civil, as distinguished from a criminal, proceeding, and may properly be reviewed in this court upon petition in error and casemade.
The disobedience of an order of the trial court to pay alimony and counsel fees in a divorce suit is an indirect, as distinguished from a direct, contempt.
A proceeding against one for civil contempt is prosecuted in the original action and in the name of the injured party and for his benefit, while proceedings at law for criminal contempt are between the public and the defendant, and are not a part of the original cause.
One adjudged guilty of contempt for failure to pay alimony and counsel fees and ordered to jail until the same are paid "carries the keys of his prison in his own pocket," and can end the sentence and discharge himself at any moment by doing the thing commanded and which he has previously refused to do.
Commissioners' Opinion, Division No. 2. Error from District Court, Hughes County; John Caruthers, Judge.
Suit for divorce by Phoebie Wells against Carl Richard Wells. From an order adjudging defendant to be in contempt for refusal to comply with an order of the court, he brings error. Affirmed.
See also, 148 P. 725.
Crump & Skinner, of Holdenville, for plaintiff in error.
Mann Rogers & Harris, of Holdenville, for defendant in error.
This appeal by petition in error and case-made was taken for the purpose of reviewing the judgment and order of the district court of Hughes county adjudging the plaintiff in error to be in contempt for refusal to comply with the judgment and order of that court, entered in a divorce proceeding had therein directing him to pay the defendant in error $400 alimony and $100 counsel fee.
It appears from the record that the defendant in error, who was plaintiff in the divorce suit, filed in that cause an application for a citation on the defendant, in which is recited the granting of the divorce and the order allowing alimony and counsel fees, and charging that an execution had been issued on the judgment and returned nulla bona, and the failure of the defendant to pay said judgment or any part thereof, and praying a citation against him to appear and show cause why he should not be adjudged to be in contempt for failure to comply with said order. The citation was regularly issued and served. In response thereto the defendant answered, admitting that he had not complied with said order, stating that he had been unable to do so, and demanded a jury trial, and the cause was regularly submitted to the jury, and a verdict returned finding the defendant guilty of contempt. The court made the finding of the jury its own and pronounced judgment against the defendant, and after reciting that he had willfully failed and refused to comply with and obey the order of the court, proceeded as follows:
"It is therefore ordered that the said defendant, Carl Richard Wells, be remanded to the custody of the sheriff and confined in the county jail of Hughes county and state of Oklahoma, until such time as he complies with the order of this court as heretofore made, and upon his paying said judgment of $400, and $100 attorney's fee in compliance with said order, then he shall be discharged from custody."
It is assigned as error that the verdict and judgment are contrary to the evidence and the law. The only authority cited in the brief in support of this assignment is Ex parte Curtis, 10 Okl. 660, 63 P. 963, in which it was held:
"A judgment or order of the court that the defendant be committed to the county jail until he obeys said order, and until the further order of the court or judge thereof, * * * is void, for the reason that the duration of sentence is indefinite and uncertain."
This case is not an authority against the judgment appealed from; since the duration of the sentence of confinement in the county jail, as prescribed therein, is definite and certain, namely, until he pays the alimony and attorney's fees.
The case of Hutchison v. Canon, 6 Okl. 725, 55 P. 1077, a case in which the defendant in a divorce suit refusing to pay alimony, as directed by the court to do, was adjudged to be in contempt on account thereof, and the order of the court was:
"That the defendant be committed to the county jail of said county until the said order of this court is complied with, and the payment of $30 each for the months above mentioned be paid in the case of Hutchison v. Hutchison."
The defendant in that case, instead of appealing from that order, as did the defendant in the case at bar, sought to be released upon a writ of habeas corpus. The court, in remanding the petitioner, in the course of the opinion said:
"I think the rule, supported by the weight of authority, is that the power inheres in every court having jurisdiction of the subject-matter to enforce an order, either for temporary or permanent alimony, by attachment and imprisonment, even though such power is not conferred by express statutory enactment."
The case of Smythe v. Smythe, 28 Okl. 266, 114 P. 257, in which it is held that the respondent in a return to the writ of habeas corpus refused to produce the body of a child pursuant to the requirements of the writ, without reasonable excuse, committed a direct contempt, that is, a contempt committed in the presence of the court, as distinguished from an indirect contempt, one committed out of the immediate presence of the court, and that a proceeding to punish for such a contempt was a criminal proceeding, and an appeal therefrom does not lie to this court. This case is easily distinguished from the case at bar, inasmuch as the contempt of which the plaintiff in error was adjudged guilty was an indirect contempt, that is, one not committed in the immediate presence of the court, and for that reason the proceeding against him for such contempt was a civil proceeding.
This action was commenced by the plaintiff in the divorce suit and as a part of the original action. It was prosecuted between the original parties and for the exclusive benefit of one of them, and not for the purpose of vindicating the authority of the court. The trial court instructed the jury on the theory that it was a civil, as distinguished from a criminal, proceeding. In fact, all the parties seem to have so treated it. We conclude that it was a civil proceeding, and that the appeal was properly...
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