Woodworth v. Woodworth

• Decision Date: 21 May 1935
• Docket Number: Case Number: 24410
• Citation: 1935 OK 585,48 P.2d 1052,173 Okla. 554
• Parties: WOODWORTH v. WOODWORTH
• Court: Oklahoma Supreme Court

1935 OK 585

48 P.2d 1052

173 Okla. 554

WOODWORTH v. WOODWORTH

Case Number: 24410

Supreme Court of Oklahoma

Decided: May 21, 1935

Syllabus

¶0 1. Divorce - Proceeding Against Defendant Eleven Years After Judgment for Failure to Pay Alimony - Statutory Procedure for Indirect Contempt Controlling.

Eleven years after a judgment for divorce and alimony, plaintiff secured a citation for contempt against the defendant in the original case, alleging that the defendant failed and refused to make monthly payments since August 1, 1923; and that the defendant was then in default in the sum of $2,075. The court charged the jury that they should consider the evidence as of the date of the citation and prior thereto. The testimony and the circumstances of the parties at the time of the citation did not show willful or contumacious refusal to pay the sum then due. The defendant was convicted by a jury and sentenced to serve 60 days in jail or pay a fine of $400. Held, that the proceeding was governed by sections 1697 to 1700, C. O. S. 1921, providing the procedure in cases of indirect contempt.

2. Same - Judgment Set Aside on Appeal Where Uncertain Whether It Was to Inure to Benefit of Plaintiff or Was Punishment Assessed in Vindication of Court's Authority.

The statutes of Oklahoma classify contempts only as direct and indirect contempts; and the rights of a defendant in the procedure provided for indirect contempts are not abrogated because the prosecution was brought in the course and form of a civil action, and where it is uncertain from the pleadings and all of the proceedings whether judgment sought was to inure to the benefit of the plaintiff or to be assessed as a punishment against the defendant and for the purpose of vindicating the authority of the court, the same will be set aside on appeal.

3. Same - Requisites of Charge Against Defendant for Default Criminal in Nature - Allegations of Willfulness of Default Within Period of Criminal Limitations.

In a proceeding for indirect contempt based upon failure to meet monthly payments required by order of the court extending over a period of eleven years, where the punishment to be assessed is criminal in its nature and not invoked on the face of the record for the benefit of the plaintiff, the accused is entitled to a clear statement, without duplicity or ambiguity, of the facts constituting the charge against him; and that the default was willful or contumacious, and the facts constituting such willfulness or contumacy must be established as of some time clearly stated within the charge or complaint, and within the period of criminal limitations as provided in section 2725, O. S. 1931.

4. Same - Insufficiency of Allegations - Review of Record on Appeal - Reversal Where Defendant not Accorded Fair Trial.

Where a prosecution for contempt, to vindicate the authority of the court and to punish the defendant for contumacy, is insufficient and defective in failing to allege such contumacy or willfulness, and in not showing whether one or more offenses are intended to be prosecuted thereunder, or the time or times thereof, but such defects are not objected to at the trial nor exceptions taken to the instructions of the court, this court will examine the evidence and the entire record to determine whether the case was fairly submitted to the jury consistently with substantial rights of a defendant in a criminal proceeding; and where it appears that there was no evidence to sustain an issue of contumacy at the date of the citation, and that there is no conformity between the proof and the allegations of the charge as defined and instructed by the court, and it appears that the defendant has not had the elements of a fair trial, this court should set aside the verdict for substantial errors appearing on the face of the record.

5. Same - Insufficiency of Instructions - Conviction not Sustained.

Evidence examined, and held not to sustain the conviction upon any charge properly submitted by the trial court; this court not being able to determine definitely from the instructions the time at which the charge was intended to be laid.

Appeal from District Court, Oklahoma County; Sam Hooker, Judge.

Action by Willa Woodworth against Allen Woodworth in which the defendant was found guilty of contempt, and he appeals. Reversed and remanded.

L.D. Mitchell, for plaintiff in error.

Tom Chambers, Jr., for defendant in error.

PER CURIAM.

¶1 Allen Woodworth, the plaintiff in error, was found guilty of contempt in the district court of Oklahoma county on July 23, 1932, and was sentenced to the county jail of Oklahoma county for a period of 60 days, or to pay the sum of $400 immediately, to purge himself of said contempt.

¶2 The contempt proceedings originated in an action in said district court by Willa Woodworth, as plaintiff, against Allen Woodworth, as defendant, for divorce, alimony, and the custody and allowance for the maintenance of a minor child. On September 20, 1919, a journal entry was filed, reciting that on September 17, 1919 the case came on for trial; that the defendant had filed his said appearance and waiver of notice dated July 11th, and made no further appearance in the cause and failed to appear at the hearing and was adjudged in default. Upon the evidence introduced by the plaintiff, the court made its findings generally for the plaintiff, awarded her a decree of divorce, the custody of her minor child, Allen Woodworth, Jr., and ordered the defendant to pay $25 per month to the plaintiff for the support and maintenance of said minor child until he should reach his majority; and a further allowance of alimony to the plaintiff in the sum of $25 per month, so long as she should remain unmarried and without other limitations of time or of total amount.

¶3 Between the date of said judgment for divorce in 1919 and the institution of the contempt proceedings now in issue, which were instituted by an application for citation filed July 21, 1930, numerous proceedings were taken by the plaintiff, of a civil nature, to collect the payments due, and certain collections were made at various times, which the plaintiff stated amounted to $250 or $300. The evidence is not clear or satisfactory as to the total payments or as to the exact delinquency at any particular time. It is fairly inferable from the evidence that with the passing of eleven years the amount of the delinquency grew into larger figures. The defendant in error testified that for several years prior to the contempt proceedings, either trifling sums or nothing had been paid on the judgment.

¶4 On July 21, 1930, following certain other citations in the same year, on which no action seems to have been taken, the defendant in error filed the particular application for citation upon which judgment appealed from must be based. This application, after reciting certain provisions of the original judgment dated September 17, 1919, sets out the following:

"That the defendant, Allen Woodworth, is in contempt of court in this, that the said Allen Woodworth has always failed and refused to make any payments to this plaintiff in compliance with said order, since the first day of August, 1923; that said defendant, Allen Woodworth, is in default in said payments in the sum of two thousand and seventy five dollars ($2,075)."

¶5 The citation issued thereon recites the entering of the judgment of September 17th, and states, as the matter of contempt, that the defendant has failed and refused to make any payment since the first day of August, 1923, but makes no mention of delinquency stated to be $2,075 as of July 21, 1930; the citation thereupon directed the plaintiff in error to appear personally before the court at a time stated, to show why he should not be adjudged in contempt. The cause came on for trial before a jury upon the application and citation aforesaid; and the jury returned a verdict, finding the defendant guilty of contempt. Following the motion for new trial and overruling of the same, the court entered its judgment and sentence of conviction against the defendant, in which the court fixed the punishment at 60 days in jail or to pay the sum of $400 to the clerk of the court, to purge himself of said contempt. Neither the application nor the citation nor the sentence shows whether the pecuniary penalty was intended or sought to be applied for the benefit of the judgment creditor or whether assessed as a fine for contumacious contempt of court. The sum of $400 assessed by the court does not bear relation to any particular amount claimed by the plaintiff or established by the evidence as due, and we must take it that it was assessed by the court in the nature of a punishment to vindicate the authority of the court as in cases of criminal contempt. The plaintiff in error served notice of appeal upon the county attorney as well as upon the plaintiff's attorney, besides giving notice of appeal in open court as in civil cases.

¶6 The plaintiff in error makes several assignments of error which it is not necessary to discuss, because in our view the case turns upon the third and sixth assignments, i. e.:

"(3) Said court erred in that the verdict of the jury was not sustained by sufficient evidence and is contrary to the evidence."

"(6) Error on the part of the court in not sustaining the demurrer of Allen Woodworth to the evidence."

¶7 We agree with the position of the trial court and the second proposition in the brief of the defendant in error, that the matters urged to impeach the original judgment, dated September 17, 1919, were not competent for that purpose. The plaintiff in error alleged that there was fraud in the rendition of that judgment for the reason that it was entered in his absence and contained provisions for alimony payments contrary to an agreement made with the defendant in error at the time he consented to enter his appearance and waive notice of hearing. However, he has never made any direct or permissible form of...